POPLA Decisions

Scott0966

The PCN was, as is referred to on here, a so called 'Golden ticket'. RK was not the driver. Initial appeal submitted referring to PoFA - rejected by PE

ParkingEye claimed all along that PoFA did not apply and even in their submission to Popla said

Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012. As such,
the appellant’s comments regarding the Parking Charge Notice being issued incorrectly are not relevant in
the case.

Result came back...

Decision   Successful

Assessor Name   Adele Ditchfield

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for remaining at the car park for longer than the stay authorised, or without authorisation.

Assessor summary of your case

The appellant says the PCN is not compliant with the Protection of Freedoms Act (POFA) 2012. They say the PCN was issued on 29 October when the contravention occurred on 8 October. The appellant has questioned whether the operator has authority from the landowner to issue PCNs on this land.

Assessor supporting rational for decision

The appellant has not identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the registered keeper. In order for the registered keeper to be liable for the PCN, I have to consider if the operator has complied with the Protection of Freedoms Act 2012 (PoFA). The PCN was issued to the keeper on 29 October 2021 for the parking event that occurred on 8 October 2021. To comply with PoFA the operator must issue the PCN within a period of 14 days beginning with the day after that on which the specified period of parking ended. PoFA sets out that the notice is presumed delivered two working days from the date it was sent. This means that this notice would not have been presumed delivered under PoFA, and so was not delivered within the relevant period. Having considered the evidence, I am not satisfied the operator has issued the Notice to Keeper within 14 days, and therefore has not complied with PoFA. It is not necessary to address the appellant’s remaining grounds of appeal. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.

KitKatKen

Operator Name

Euro Car Parks - EW (Crawley, West Sussex)

Operator Case Summary

The claimant did not wish to contest the appeal and withdrew from the process

Decision

Successful

Assessor Name

POPLA Team

Assessor summary of operator case

Please follow this link to my original post if you wish to see more details: Click here

Umkomaas

Assessor Name   Adele Ditchfield

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for remaining at the car park for longer than the stay authorised, or without authorisation.

Assessor summary of your case

The appellant says the PCN is not compliant with the Protection of Freedoms Act (POFA) 2012. They say the PCN was issued on 29 October when the contravention occurred on 8 October. The appellant has questioned whether the operator has authority from the landowner to issue PCNs on this land.

Assessor supporting rational for decision

The appellant has not identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the registered keeper. In order for the registered keeper to be liable for the PCN, I have to consider if the operator has complied with the Protection of Freedoms Act 2012 (PoFA). The PCN was issued to the keeper on 29 October 2021 for the parking event that occurred on 8 October 2021. To comply with PoFA the operator must issue the PCN within a period of 14 days beginning with the day after that on which the specified period of parking ended. PoFA sets out that the notice is presumed delivered two working days from the date it was sent. This means that this notice would not have been presumed delivered under PoFA, and so was not delivered within the relevant period. Having considered the evidence, I am not satisfied the operator has issued the Notice to Keeper within 14 days, and therefore has not complied with PoFA.

Looks like Adele is on top of PoFA. 

Well done @Scott0966, and well done Adele (maybe show some of your fellow assessors how to do this!). 👍

Original thread:
https://forums.moneysavingexpert.com/discussion/6327620/pe-submission-golden-ticket-case#latest

Moose778

Decision: Successful

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to use of the Drop Off Zone without making a valid payment.

Assessor summary of your case

The appellant’s case is that APCOA do not know the identity if the driver and have not met the criteria of the Protection of Freedoms Act (PoFA) 2012 for a Notice To Keeper. They state that the Notice To Keeper must specify the relevant land on which the vehicle was parked and, as the land falls under statutory controls, it is not relevant land. The PCN also fails to mention keeper liability meaning that it is non-complaint with PoFA. It also fails to specify the period of parking as required by paragraph 9(2)(a). It also fails to meet 9(2)(f) as it does not state that the operator will have the right to recover the PCN from the keeper. They also state that the area in question is still on airport land is therefore covered by bye-laws. The PCN is unclear on what the relevant land is, but in either case whether an airport road or airport car park, both fall under statutory controls and cannot be considered relevant land under. They state that as this land is not “relevant land” and is covered by bye-laws, it is excluded from keeper liability under Schedule 4 of PoFA. They state that there is misleading signage and that there is no opportunity for the driver of a vehicle to read the terms and conditions prior to entering the Drop Off Zone. They must allow time for the driver to read the terms and conditions to which they are entering. They state there is no route provided for the driver to refuse the terms and conditions without breaching a contract. They state that the photographic evidence supplied by APCOA does not clearly identify the vehicle make and model, colour, vehicle registration plate or driver. Both photographs are poor quality and none of this information can be gleamed from them. They state that APCOA have no propriety interest in the land and cannot form contracts with motorists. They also state that APCOA do not have the authority of the landowner to operate on the land and they require proof of the agreement they have with the landowner.

Assessor supporting rational for decision

When an appeal comes to POPLA the burden of proof begins with the operator to evidence that the PCN has been issued correctly. The appellant has stated that the Notice to Keeper does not meet the requirement of PoFA. Section 4 (4) states, “The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.” After reviewing the PCN, the document makes no reference to the period of 28 days allowed for the transfer of liability from the driver to the keeper. Nor is there any mention of the PoFA legislation itself as would be required on the PCN. As this PCN has not been correctly issued to the driver, I must allow this appeal. I note the appellant has raised other grounds of appeal however, as I have allowed the appeal for the above reason, I will not be addressing these.

Umkomaas

I'm surprised APCOA continued to pursue the unpursuable, wasting a £30 POPLA fee in the process. Well done @Moose778.

Saynotoscammers

Standard win but the more of these shown hopefully gives confidence that this approach works for hirers. It was Parkingeye at LIDL in Taunton

Decision

Successful

Assessor Name

Stuart Lumsden

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) due to remaining on site for longer than permitted or failing to enter registration details via the terminal.

Assessor summary of your case

The appellant’s case is that they are being held liable for a parking event that had nothing to do with them. They state they provide the finance on a lease agreement for a family member and was not driving it at the time. The appellant adds that the operator has failed to comply with the requirements of POFA (2012) as they could not transfer liability to them as they did not provide additional documents under section 14(2)(a). The appellant has provided no evidence to support the appeal.

Assessor supporting rational for decision

The appellant has not identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the hirer. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The appellant explains that they are being held liable for a parking event that had nothing to do with them. They state they provide the finance on a lease agreement for a family member and was not driving it at the time. The appellant adds that the operator has failed to comply with the requirements of POFA (2012) as they could not transfer liability to them as they did not provide additional documents under section 14(2)(a). It has not been confirmed who was driving on the day in question, and the operator is holding the appellant, liable as the hirer of the vehicle on the day in question. Therefore, I am considering the appellants liability as the hirer. When the driver has not been identified, and the operator is holding the vehicle hirer liable for the PCN, the operator must demonstrate that they have complied with Paragraph 14 of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). Paragraph 14.2(a) of PoFA states that in order to hold the hirer liable for the PCN, the operator must obtain and provide to the hirer specific documents outlined in Paragraph 13.2 of PoFA. Those documents are: 13.2(a) a statement signed on behalf of the vehicle-hire firm to the effect that at the time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; (c) a copy of the statement of liability signed by the hirer under that hire agreement. As the operator has not provided evidence of obtaining those documents, nor of providing them to the hirer along with the notice to hirer, I cannot be satisfied that the operator has fully complied with PoFA. Accordingly, I do not consider that liability for this PCN has been successfully transferred from the unknown driver to the hirer, and I must therefore allow this appeal.

Umkomaas

Firstly, nice result, and well done. However I'm not clear about who first received the NtK from PE, was it you, or was it the lease company who then formally transferred liability to you, you then receiving a formal Notice to Hirer from PE?

Saynotoscammers

To clarify, they first contacted the lease company who passed on my details to PE. I then received a notice to hirer. 

Umkomaas

Saynotoscammers said:

To clarify, they first contacted the lease company who passed on my details to PE. I then received a notice to hirer. 

Thanks for clarifying that. You tackled it in exactly the right way.  Even PE, probably the most PoFA-astute of all the PPCs in the country, can't get 'hirer liability' right. Well done.

Nosy

PNE_CHA said:

Me v Liverpool John Lennon Airport

Thanks to this and a couple of other forums for all their help!!

Here's the steps I took:

1: Reply to VCS using the template in the newbies section of this website. You will then receive a response from VCS which includes a code which then enables you to take the next step which is an appeal to POPLA. Remember you do not need to name the driver. They will probably send you a letter to say that in order to proceed then they need the name of the driver. This seems to be an automatic email. Don't respond to this as they will still process your appeal.

2: Send your appeal to POPLA using another template in the newbies section (maybe tweak a little to suit your specific case).

3: You will then receive an email full of evidence including a breakdown of costs, images, cctv footage, images of signs and arial shots of airport etc. Don't let this worry you.

4: Once I received this email I sent a reply to POPLA using some of the wording that I found on recent successful appeals. Basically every appeal that seems to win is about the 'genuine pre-estimate of loss'.

Here's the wording I used:

I have looked through all the evidence provided by VCS.

Please could you take the following into consideration before making your final judgment, as this is in direct response to the evidence they have provided:

In regards to the genuine pre-estimate of loss issue, the operator has stated that the charge represents a genuine pre-estimate of loss, and provided supporting statements.

I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased.

The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, any consequential loss must be based on an initial loss, and any heads claimed for must be in the reasonable contemplation of the parties at the time of issue of the parking charge notice.

Once such a loss is shown, actual losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, an initial loss must be shown in order to claim costs in respect of them.

As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore I feel the charge notice is invalid.

5: I won the case and this was the reply from POPLA:

Reasons for the Assessor’s Determination

On xx xxxxxx the appellant was issued with a parking charge notice for breaching the terms and conditions of the parking site.
It is the operator’s case that the appellant used their vehicle for stopping or waiting in an area where stopping or waiting restrictions are in force. There is photographic evidence to support that there was adequate signage at the site to inform motorists of the parking terms and conditions. There is also photographic evidence which shows the appellant’s vehicle in an area
where stopping or waiting restrictions are in force. The appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss. Whilst I appreciate that the operator’s breakdown of costs does reflect losses incurred in relation to the appeal process, there is no reflection of any initial losses incurred. I find that the operator has not shown that by stopping or waiting in an area where stopping or waiting restrictions are in force, the
appellant at that point caused a loss to the operator or the landowner. The operator has only shown that they incurred the loss as a result of the appeals process after issuing the parking charge notice. In order for a charge to be a genuine pre-estimate of loss, the operator has to show that they at first have incurred an initial loss. Accordingly, this appeal must be allowed.

Don't give up and good luck.

Anyone know if genuine pre-estimate of loss is still a good reason for allowing appeal in 2022?