POPLA Decisions

Confusedbylaw

Decision: Successful

parking operator: Civil Enforcement 

car park: Coventry road, Birmingham

Assessor Name

Amy Smith

Assessor summary of operator case

The operator issued the Parking Charge Notice (PCN) for reason: ‘Payment not made in accordance with terms displayed on signage.’

Assessor summary of your case

The appellant has mentioned the following extensive grounds for their appeal: • A grace period: as the British Parking Association (BPA) Code of Practice has not been met. They mention that section 13 of the BPA Code of Practice covers grace periods granting 10 minutes at the start and at the end. They mention section 13.1 and 13.2 and also section 13.4. The appellant also mentions section 18.5. They mention that the entry time was 16:50 and exit time was 19:03 totalling a stay of two hours 13 minutes. They say that the ticket purchased was for two hours and therefore 13 minutes was unpaid, however without taking into consideration a grace period. They say they request evidence of the ticket data showing that the ticket was purchased for a two hour stay. • They say that the Notice to Keeper does not meet the requirements of the Protection of Freedoms Act (PoFA) 2012 They say that the operator has not shown that the individual who it is pursuing is the driver who was liable for the charge. They say. That there is no evidence of the period parked. The appellant says that the assessor must be confident that the driver has been identified based on the evidence. The appellant says that they are withholding identifying the driver. They say that when the operator is not replying on PoFA 2012 to transfer to the keeper, only the driver can be held responsible. They say that they are the keeper and without a valid notice to keeper the operator cannot pursue another party. They say that there is no evidence of landowner authority. They say the operator has no proprietary interest in the land and they require evidence of an unredacted contract with the landowner. They say that witness statements are not sound evidence of this. They say they put the operator to strict proof that it has landowner’s authority and it must meet the BPA Code of Practice section 7 requirements. • They say that there are no vehicle images contained in PCN which breaches the BPA Code of Practice requirements. They say the operator has not met section 20.5a requirements which stipulate that photographs must refer to and confirm the incident. They say the PCN show no images. They also mention that there is no evidence to show the vehicle was parked and the notice to keeper does not show evidence of the vehicle entering and exiting in the postal PCN dated 14 April 2022. They say that PoFA 2012 in Schedule 4 paragraph 9 (2) (a) refers to the requirements which the operator has not met. They say that it only says the entry to exit time and not the actual period of parking. • They say that the Automatic Number Plate Recognition (ANPR) System is Neither Reliable nor Accurate . They say that the signs fail to transparently warn drivers what the ANPR data will be used for. They say that the notice to keeper shows no parking time merely entry and exit times without any evidence of the vehicle entering and exiting. They say that section 21.3 of the BPA Code of Practice states that ANPR equipment must be maintained and kept in correct working order. They say due to this they require records of the location of the cameras used along with the dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images They say that section 21.1 of the BPA Code of Practice advises operators may use ANPR technology to manage car parks and says that signage must instruct drivers to this and advise what the data captured is used for. They say that the signage does not comply with this. They provided images of the signage and state there is no evidence that the signs comply. They mention the Consumer Rights Act 2015 Paragraph 68 advising what it confirms along with the Consumer Protection from Unfair Trading Regulations 2008 which the operator has not complied with. • They mention that there is no planning permission from Birmingham City Council for commercial parking business, Pole Mounted ANPR Cameras) and no advertising consent for signage. They say that the operator does not have planning permission for the pole mounted ANPR cameras nor advertising consent for signage. they provided a link to the Birmingham Government website. They say that there is no planning permission document for the car park at address 299 to 303 Coventry Road, B10 0RA. They state that they wish for the operator to evidence that the correct planning applications were submitted and approved covering the date of the event. Upon reviewing the operator’s evidence the appellant has raised points which reiterate the original grounds raised.

Assessor supporting rational for decision

The driver of the vehicle has not been identified. Therefore, the operator is pursuing the registered keeper for the parking charge. As such I need to consult with the provisions of PoFA 2012. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to. Having viewed the notice to keeper I am satisfied that the operator has complied with the provisions laid out in section 4 paragraph 9 of PoFA 2012, and that liability of the parking charge was successfully transferred to the keeper. When entering a private car park, it is the expectation of the motorist to comply with the terms and conditions. The terms and conditions of the particular site must be stipulated on the signs displayed within the car park to allow a motorist to decide if they wish to accept the contract or not. The operator has provided images of the signage laid out at the site. The terms and conditions of the site state: “PHONE AND PAY OR PAY AT MACHINE…£2 FOR 2 HOURS…These parking terms apply 24 hours a day…You must (a) pay within 10 minutes of arrival: (b) do not overstay the purchased parking time...IF YOU BREACH ANY OF THESE TERMS YOU WILL BE CHARGED £100.” The operator has provided photographic evidence of the vehicle entering the site at 16:50 and exiting at 19:03, totalling a stay of two hours and 13 minutes spent at site. The operator maintains a list of vehicles that have made a payment. The operator has provided a copy of this list that shows that when searching for the vehicle it was registered against a payment covering two hours parking time. The PCN was issued as the vehicle the vehicle was registered against a two hour stay, however remained on this land for an additional 13 minutes in total without a valid payment for this time. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have been breached. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. The appellant has mentioned the following extensive grounds for their appeal: • A grace period: as the British Parking Association (BPA) Code of Practice has not been met. They mention that section 13 of the BPA Code of Practice covers grace periods granting 10 minutes at the start and at the end. They mention section 13.1 and 13.2 and also section 13.4. The appellant also mentions section 18.5. They mention that the entry time was 16:50 and exit time was 19:03 totalling a stay of two hours 13 minutes. They say that the ticket purchased was for two hours and therefore 13 minutes was unpaid, however without taking into consideration a grace period. They say they request evidence of the ticket data showing that the ticket was purchased for a two hour stay. • They say that the Notice to Keeper does not meet the requirements of the Protection of Freedoms Act (PoFA) 2012 They say that the operator has not shown that the individual who it is pursuing is the driver who was liable for the charge. They say. That there is no evidence of the period parked. The appellant says that the assessor must be confident that the driver has been identified based on the evidence. The appellant says that they are withholding identifying the driver. They say that when the operator is not replying on PoFA 2012 to transfer to the keeper, only the driver can be held responsible. They say that they are the keeper and without a valid notice to keeper the operator cannot pursue another party. They say that there is no evidence of landowner authority. They say the operator has no proprietary interest in the land and they require evidence of an unredacted contract with the landowner. They say that witness statements are not sound evidence of this. They say they put the operator to strict proof that it has landowner’s authority and it must meet the BPA Code of Practice section 7 requirements. • They say that there are no vehicle images contained in PCN which breaches the BPA Code of Practice requirements. They say the operator has not met section 20.5a requirements which stipulate that photographs must refer to and confirm the incident. They say the PCN show no images. They also mention that there is no evidence to show the vehicle was parked and the notice to keeper does not show evidence of the vehicle entering and exiting in the postal PCN dated 14 April 2022. They say that PoFA 2012 in Schedule 4 paragraph 9 (2) (a) refers to the requirements which the operator has not met. They say that it only says the entry to exit time and not the actual period of parking. • They say that the Automatic Number Plate Recognition (ANPR) System is Neither Reliable nor Accurate . They say that the signs fail to transparently warn drivers what the ANPR data will be used for. They say that the notice to keeper shows no parking time merely entry and exit times without any evidence of the vehicle entering and exiting. They say that section 21.3 of the BPA Code of Practice states that ANPR equipment must be maintained and kept in correct working order. They say due to this they require records of the location of the cameras used along with the dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images They say that section 21.1 of the BPA Code of Practice advises operators may use ANPR technology to manage car parks and says that signage must instruct drivers to this and advise what the data captured is used for. They say that the signage does not comply with this. They provided images of the signage and state there is no evidence that the signs comply. They mention the Consumer Rights Act 2015 Paragraph 68 advising what it confirms along with the Consumer Protection from Unfair Trading Regulations 2008 which the operator has not complied with. • They mention that there is no planning permission from Birmingham City Council for commercial parking business, Pole Mounted ANPR Cameras) and no advertising consent for signage. They say that the operator does not have planning permission for the pole mounted ANPR cameras nor advertising consent for signage. they provided a link to the Birmingham Government website. They say that there is no planning permission document for the car park at address 299 to 303 Coventry Road, B10 0RA. They state that they wish for the operator to evidence that the correct planning applications were submitted and approved covering the date of the event. The burden of proof lies with the operator in order to prove that the PCN was issued correctly. My report will be solely focusing on a grace period as this ground raised to POPLA has persuaded me to allow the appeal. The British Parking Association (BPA) monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet. The appellant mentions a grace period within their grounds and refers to sections in the BPA Code of Practice version 7 from 2018 which is now out of date. The current Code of Practice version 8 is the one we refer to when issuing our decisions and it states in section 13.3 in relation to a grace period after a contract has expired: “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.” In this instance the appellant entered the car park at 16:50. The operator has provided a copy of the transaction report for the appellant’s payment which shows that the appellant paid £2.00 for their two hour stay at 16:53:27. This time taken to pay was three minutes and within the 10 minute time period advertised to pay. The appellant purchased two hours parking time and the two hours’ time expired at 18:53. The vehicle was captured exiting the site at 19:03, 10 minutes after the contract had ended. Having reviewed the requirements of section 13.3 I am satisfied that a grace period should be granted the three minutes at the start to make a payment and the 10 minutes at the end to leave the site is reasonable. I note they have mentioned other grounds of appeal, however due to being persuaded to allow the appeal, I have not considered those other grounds. POPLA’s remit is to determine whether the PCN has been issued correctly. On this occasion I am unable to conclude that the operator has correctly issued the parking charge. Accordingly, I must allow this appeal.

Umkomaas

Thanks for feedback and well done on your success. 

Having reviewed the requirements of section 13.3 I am satisfied that a grace period should be granted the three minutes at the start to make a payment and the 10 minutes at the end to leave the site is reasonable

Interesting - I think many assessors might have been less flexible and rejected the appeal (assessor bingo!). Grace Period determination can be very subjective, but a win is a win .... and CEL can go off to lick their wounds! 👍

Coupon-mad

I think this case was won because the sign says people have 10 mins to pay, on arrival.

There is no scope to disapply the BPA mandatory grace period of a further 10 minutes to leave. POPLA can't do that.

Therefore this site should not see PCNs issued for overstays of 20 mins or less and DVLA data is being obtained unlawfully.

Confusedbylaw

It was Umkomaas said:

Thanks for feedback and well done on your success. 

Having reviewed the requirements of section 13.3 I am satisfied that a grace period should be granted the three minutes at the start to make a payment and the 10 minutes at the end to leave the site is reasonable

Interesting - I think many assessors might have been less flexible and rejected the appeal (assessor bingo!). Grace Period determination can be very subjective, but a win is a win .... and CEL can go off to lick their wounds! 👍

Thank you guys, I found all the material from here. I do however think that this car park may not have proper planning permissions in place or any at all - there's nothing on the Birmingham council website for their address.

Is it worth raising it to the Bham council?
 

gorilla17

As per my case described here, I'm delighted to report that POPLA upheld my appeal on the grounds that the operator (PPS) was talking out of their **** when they tried to claim that there are circumstances in which a grace period doesn't apply. Here's the POPLA decision in full. Thanks everyone for your help with this.

Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) for the following reason, parked on yellow lines. 

Assessor summary of your case

The appellant says that they were not parked at the time of the alleged offence. They say it is very clear from the photos provided by PPS that they were still in the vehicle at the time of the alleged offence. The appellant says they had pulled over to the side of the road to read the signage about parking restrictions. Once they had confirmed that they were not permitted to park there, they drove away immediately. They say they did not exit the vehicle, and was stationary for a matter of seconds, so it is incorrect to suggest that the vehicle was parked. The appellant has commented on the operator’s case file. 

Assessor supporting rational for decision

In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. It is my role as an assessor to assess the terms and conditions of the site and to determine from the evidence whether or not the motorist complied with them. 

However, I must explain that before a motorist can be deemed to have entered into a parking contract, they must be given a reasonable period in which to review the terms and conditions and decide whether to park, without incurring a PCN. In this instance, the operator has issued a PCN to the appellant for parking on yellow lines. The appellant says they were not parked, they stopped for a matter of seconds to review the information on the signage to be able to determine if they could park there. After realising they were not permitted to park, they left. 

Following review of the images of the appellant’s vehicle on site, I can see that the images are time stamped 15:08:54 and 15:09:25 Section 13.1 of the British Parking Association (BPA) Code of Practice sets out processes operators should put in place when entering onto private land. The BPA code of practice explains a ‘consideration period’ should be given which is time for a motorist to decide if they wish to stay accepting the terms or leave rejecting them. 

It states that: “The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes. 

I am satisfied the appellant did not exceed the minimum time provided under the BPA Code of Practice and so, I do not consider they entered into any contract with the operator. The appellant read the signs, rejected the terms and left the site. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.

Umkomaas

Confusedbylaw said:

It was Umkomaas said:

Thanks for feedback and well done on your success. 

Having reviewed the requirements of section 13.3 I am satisfied that a grace period should be granted the three minutes at the start to make a payment and the 10 minutes at the end to leave the site is reasonable

Interesting - I think many assessors might have been less flexible and rejected the appeal (assessor bingo!). Grace Period determination can be very subjective, but a win is a win .... and CEL can go off to lick their wounds! 👍

Thank you guys, I found all the material from here. I do however think that this car park may not have proper planning permissions in place or any at all - there's nothing on the Birmingham council website for their address.

Is it worth raising it to the Bham council?
 

You could do, which might give the PPC some work to contend with. Depends on your attitude to pushing a boulder up a hill and your disappointment when it rolls back down again. Planning Permission can be granted retrospectively, and I can't recall any similar case where a council has refused. 

Fruitcake

Confusedbylaw said:

It was Umkomaas said:

Thanks for feedback and well done on your success. 

Having reviewed the requirements of section 13.3 I am satisfied that a grace period should be granted the three minutes at the start to make a payment and the 10 minutes at the end to leave the site is reasonable

Interesting - I think many assessors might have been less flexible and rejected the appeal (assessor bingo!). Grace Period determination can be very subjective, but a win is a win .... and CEL can go off to lick their wounds! 👍

Thank you guys, I found all the material from here. I do however think that this car park may not have proper planning permissions in place or any at all - there's nothing on the Birmingham council website for their address.

Is it worth raising it to the Bham council?
 

Planning permission is required for pole mounted ANPR scameras and control boxes, and can be granted retrospectively.
Advertising consent is required for signs, and cannot (should not) be applied retrospectively, but some councils do it anyway. Not having consent for signs is a breach of para 12 of the PoFA, and a criminal offence, but only the council can pursue it. Most don't.
You could complain to the council and the planning department and your MP, but don't hold your breath.

MercyMeB

THE ASSESSOR’S SUMMARY OF MY CASE CONTAINS SOME INACCURATE,  ERRONEOUS EVIDENCE SUBMITTED BY ME.

POPLA - Decision

Unsuccessful

Assessor Name

Gayle Stanton

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) because the vehicle was parked on yellow lines on site.

Assessor supporting rational for decision

 

The appellant has indicated that they were the driver on the day. The operator has issued the Parking Charge Notice (PCN) because the vehicle was parked on yellow lines on site.

When entering a private car park, it is the expectation of the motorist to comply with the terms and conditions. The terms and conditions of the particular site must be stipulated on the signs displayed within the car park to allow a motorist to decide if they wish to accept the contract or not.

The operator has provided images of the signage laid out at the site. The terms and conditions of the site state ".WARNING STAFF PARKING ONLY…NO PARKING, WAITING OR STOPPING ON YELLOW LINEDS AND /OR HATCHED AREAS…IF YOU PARK ON THIS LAND YOU AGREE TO THE TERMS OF PARKING AND CONTRAVENING THE DISPLAYED TERMS AND CONDITIONS, YOU CONTRACTUALLY AGREE TO PAY A £ 100 Parking Charge Notice.…"

The operator has provided photographic evidence of the vehicle parked on the site on the day of the incident. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have been breached.

I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge.

They state that there was insufficient clear signage at the entrance or in the area and the signs are written in a very small font. In response to the operator’s case file the appellant advises that the operator has not addressed the issues they raised in their appeal. They reiterate that there is no entrance sign and no warning at the junction on the road. They say that the word "warning" Is not written in bold the document does not show their line of vision.

They say that the sign is not at the entrance and no evidence to show any illumination. I note the appellant’s comments however, the operator has provided photographic evidence of the signage on site.

From the evidence provided, including the site map I can see that there is signage located all around the site informing motorists of the terms and conditions. Given this, I must consider the signage in place at this location to see if it was sufficient to bring the terms and conditions to the attention of the driver when entering and parking at the location.

Sections 19.1 to 19.5 of the British Parking Association (BPA) Code of Practice states:” A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.You must use signs to make it easy for them to find out what your terms and conditions are.

19.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

A standard form of entrance sign must be placed at the entrance to the parking area. There may be reasons why this is impractical, for example: • when there is no clearly defined car park entrance • when the car park is very small • at forecourts in front of shops and petrol filling stations • at parking areas where general parking is not permitted

 19.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges.You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

 19.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations. See paragraphs 2(2), 2(3) and 12 of the Schedule.

19.5 The wording you include on your specific parking terms signage is your decision. However, you should try to use plain and intelligible language in all your signs and information.

Having considered the signage in place, I am satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and conditions to the motorists’ attention. In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.”

The appellant states that they had not parked on land managed by the operator. They explain that they had stopped outside of the boundaries on double yellow lines on council land. The appellant states in the comments that they made no claim that the land register refers to yellow lines as they said that the lines were painted by the local authority. I note the appellant’s comments and I have reviewed their evidence, however I am satisfied from the site map provided by the operator that the vehicle had been parked on the land managed by the operator on the day in question.

With regards to the appellant’s statement about signs warning motorists on the road approaching the site, the operator is not obliged to place signs on land that it does not manage. The appellant advises that they had not actually parked, and they had stopped to let passengers out. The appellant states that the vehicle was not parked as the driver did not leave it; however for the period that the vehicle remained on site, the motorist was making use of the facilities provided by the operator, regardless of whether they considered themselves to be parked. The appellant says in the comments that the contract provided has redacted signatures and there is no signage on the road entering the area. I note the comments the appellant has provided in the comments section of the appeal, however this section is for simply providing comments and not for raising new grounds of appeal. As such, I cannot consider the new grounds raised by the appellant.

The appellant adds in the comments that at no time did they agree to a contract. I note that the appellant states that they were unaware of the terms and conditions, however, it is important to note that the driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.

Reviewing the photographic evidence of the signage on display at the site and the site map, I am satisfied that the driver was afforded this opportunity. I refer to Section 13 of the British Parking Association (BPA) Code of Practice and in

Section 13.1 it advises that motorists should be allowed a consideration period of at least five minutes to decide if they are staying or leaving.

Section 13.2 states that Section 13.1 does not apply if a parking event has taken place. Section 13.3 says that motorists should be allowed 10 minutes to exit the site, and        Section 13.4 states that unauthorised drivers are not entitled to a consideration period.  Section 13.6 advises that neither a consideration period or a grace period are periods of free parking.

In this case the motorist was not entitled to a consideration period as they were not authorised to park in the area they had and by remaining on the site they had indicated to the operator that they were accepting the contact on offer. Ultimately, it is the motorist’s responsibility to ensure that they park in accordance with the terms and conditions on a privately operated car park.

By parking on this land this signifies their acceptance of the terms and conditions and as the vehicle was parked on yellow lines on the site the terms and conditions were not met. POPLA’s remit is to determine whether the PCN has been issued correctly. On this occasion I conclude that the operator has correctly issued the parking charge.

Accordingly I must refuse this appeal.

Affywaffy

Fruitcake said:

Which PPC?

PoPLA decisions are not binding on the motorist, so no, you are not required to pay the charge unless a judge says so.

You are now in ignore mode unless you get a court claim in the next six years. Come back to this forum if that happens.

I now have a second debt collection letter in which it states the next step will be to recommend court action. And then a notice stating they took someone to court in 2015 and the Motorist lost the case. The charges have also crept up! Do I just continue to ignore? @Coupon-mad

MercyMeB

The PPC is CCPC.
The threatening letter is from dcbl (Direct Collection Bailiffs Ltd) which is endorsed  with the Logo of "AS EXCLUSIVELY FEATURED ON THE POPULAR TV SHOW Can't pay? We'll Take It Away!"

Is there some body I can complain to about these stronger tactics bring used to extort money against me.