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POPLA Decisions
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MoneySavingExpert
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And this phrase is worth copying:
And this: clever spot from a switched-on Assessor and something we've never thought to look for in evidence:
Store that thought, regular posters!
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Can you tell us the date of decision and 10 digit POPLA code so we can quote this about other large car parks please?
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POPLA code was 6061452361
The 'evidence' provided by PE seemed pretty half hearted IMO, lots of guff about how wonderful they are but not a lot of substance. Their list of transactions that supposedly covered my time in the car park stopped short by some 20 minutes, even though I saw people paying while I was there. Perhaps they knew they were just trying it on.
The point about there being no PayByPhone transactions was pointed out by me in my comments (alongside other stuff!). I gave it everything I had... I was so angry
They were keen to trot out Beavis when they saw the word 'signage' but AFAIK Beavis doesn't address my complaint that the terms & conditions do not mention a time within which you must pay or leave, therefore any contract would fail under the Consumer Protection from Unfair Trading Regulations 2008, section 6 (Misleading Omissions). Don't know if that actually had legs, it didn't get considered, but worth a shot I thought. TBH I expected to be saying all this to a judge in a few years.
Again, grateful thanks to everyone who helped me.
Cheers
John
Well done, and for spotting this:
Do come back here to be heard in the last and most important Government Public Consultation, hopefully October.
If the fake added £70 DRA fee farce is allowed after Govt banned it, that will hand ParkingEye (a rare beast that doesn't add it) some £70 million extra per annum for no more 'work'.
It MUST stay banned.
See the latest posts on the sticky thread by MSE_JC and bookmark it now, also setting email alerts so you see any posts on your bookmarked threads in the coming months.
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I WON
They didnt even bother to consider the informatrion I added later on but I was succesfull because they issued the ticket for parking in an emergency area however there is no mention of this in there terms and conditions:
" In this case the operator has issued the PCN to the appellant for failing to purchase the appropriate parking time or by remaining at the car park for longer than permitted. I have reviewed the signage and it seems that this is a maximum stay site and a list of terms and conditions, including “No parking on yellow lines/hatched areas”. Whilst I acknowledge that the motorist should not have parked on a hatched area, the PCN has not been issued for this reason. There is no mention on emergency area on the signage submitted by the operator. Due to this I am not satisfied that the PCN has been issued for the correct reason. As such, I must allow this appeal. I note the appellant has raised other issues as grounds for appeal however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration.
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
The operator issued the penalty charge as the driver failed to park wholly within an authorised, marked parking bay.
The appellant has provided a document detailing their appeal. They advise that the bay markings on the site are not clear with a number of double bays. They repeat this point within their comments. They explain that the site is not relevant land in accordance with The Protection of Freedoms Act 2012 and they dispute that a valid notice to keeper was served.
They also dispute that the driver can be held liable for the penalty. The appellant disputes that the operator can use Railway Byelaws for claims. The appellant dispute that the operator has the authority of the landowner to issue penalties in this location. The appellant does not believe that the signage at the site is adequate and does not prove adequate notice of the amount of the penalty. In their comments they also dispute that the byelaw being used is displayed on the signage.
Having reviewed this case, I can see that a penalty has been issued for a breach of the Railway Byelaws. The byelaws make the owner of a vehicle responsible for the charge, who the operator can assume is the registered keeper. I have seen no evidence that would lead me to conclude that the appellant is not the owner, and I am therefore going to be considering their responsibility as the vehicle owner under the Railway Byelaws.
As the operator is not looking to transfer liability of the penalty charge it does not consider the provisions of PoFA 2012. The operator has provided images of the signage laid out at the site. The rules and regulations of the site state: “Vehicles parked without authorisation or in breach of any of the following conditions may receiving a Penalty Notice, which may be issued either manually or by post… Failure to park within a marked parking bay or causing an obstruction to other users… Charges for breach of these parking conditions: £100”.
The operator has provided date and time stamped photographic evidence of the vehicle parked at the site. The vehicle was observed parked outside of a marked bay and as such the attendant issued the penalty charge as the vehicle was in breach of the rules and regulations The operator issued the penalty charge as the driver failed to park wholly within an authorised, marked parking bay.
The appellant has provided a document detailing their appeal. They advise that the bay markings on the site are not clear with a number of double bays. They repeat this point within their comments. When considering this appeal I do not need to consider the markings in place throughout the site. Only the markings in the location where the appellant parked. In this case both the operator and appellant have provided photographs showing the markings at this site. On this site the bays are defined by white marking surrounding all sides of the bay.
One of the appellants images shows a white marking on a curb. When compare to other images this marking does not appear to still be in use but even if it was it would mark the edge of a bay. The operator’s images show that this would have been almost in the middle of where the driver parked showing that this was not a bay, Further to this there was only a white line on one side of the vehicle. I am satisfied that it would have been clear to the drive that this was not an authorised marked bay.
They explain that the site is not relevant land in accordance with The Protection of Freedoms Act 2012 and they dispute that a valid notice to keeper was served. They also dispute that the driver can be held liable for the penalty. This penalty has not been issued under The Protection of Freedoms Act 2012 instead the operator has issued the charge under railway byelaws. As such none of the provisions contained within The Protection of Freedoms Act 2012 are relevant to the outcome of this appeal. The appellant has admitted that they were the keeper of the vehicle who can also be assumed to be the owner for the purpose of penalty charges.
The appellant disputes that the operator can use Railway Byelaws for claims. Railway Byelaws Section 14 (2) (ii) advises that no person may leave or place a motor vehicle otherwise than in accordance with any instruction given by an authorised person. Further to this Section (4) (i) explains that the owner of a motor vehicle may be liable to pay a penalty as displayed in the area. As such I am satisfied that the operator has the relevant authority to issue Penalty Notices on behalf of the railway operator.
The appellant dispute that the operator has the authority of the landowner to issue penalties in this location. Section 7 of the British Parking Association code of practice explains that an operator must have a valid contract for a location which it does not own. Within its case file the operator has provided a copy of the contract it holds with the railway operator which for the purpose of this appeal is considered the landowner.
The appellant has not provided any evidence to POPLA which renders this contract invalid. The appellant does not believe that the signage at the site is adequate and does not prove adequate notice of the amount of the penalty. Section 14 (4) of the Railway byelaws sets the requirements for displaying the amount of the penalty in accordance with railway bylaws. Section 19.3 of the British Parking Association code of practice sets the requirements for the signage itself. This explains that the signage must be clear, easy to see and read. The operator has provided examples and photographs of the signage at the site. This signage is easy to read and the amount of the penalty is clearly displayed. This signage makes it clear that a driver will pay a £100 penalty if they fail to comply with the signage. I note that this amount is far below level 3 on the standard scale.
In their comments they also dispute that the byelaw being used is displayed on the signage. I note that within their comments the appellant has miss quoted the relevant byelaw 24 (4) which actually states “that the notice referred to in the particular Byelaw was displayed”. In this case the notice is talking about the signage I have talked about above. Ultimately, it is the motorist’s responsibility to ensure that they park in accordance with the rules and regulations on a privately operated car park. POPLA’s remit is to determine whether the penalty charge has been issued correctly. On this occasion I conclude that the operator has correctly issued the penalty charge. Accordingly, I must refuse this appeal.
Thread here: https://forums.moneysavingexpert.com/discussion/comment/79329615#Comment_79329615
Operator Name
NCP - EW
Operator Case Summary
The customer breached the terms and conditions of parking when they did not make payment against their vehicle registration. By choosing to park in the car park in question without valid payment, they agreed to these terms and therefore the notice was issued correctly.
07/2022
371502182
Decision
Unsuccessful
Assessor Name
Alexandra Roby
Assessor summary of operator case
The operator’s case is that the motorist parked without payment of the parking charge.
Assessor summary of your case
The appellant’s case is that the motorist assumed that they had paid even though the machine didn’t issue a receipt. When they checked their bank the next day, they saw that the money hadn’t been taken so they contacted the operator immediately to resolve the issue. They explain that they did the best to pay and are still more than willing to pay the amount owed. The appellant believes that the parking charge is not a genuine pre-estimate of loss. To support their appeal, the appellant has provided evidence of their appeal to the operator, along with the appeal rejection letter.
Assessor supporting rational for decision
X has been identified as the driver of the vehicle on the day of the parking event, and therefore, I am considering the X’s liability for the Parking Charge Notice (PCN). When parking in a private car park, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. In this specific car park, the terms and conditions state: “A Parking Charge Notice (PCN) may be issued for failure to comply with the terms and conditions. This includes the following breaches: failure to pay all charges due for your parking”. The operator has issued the PCN as the motorist did not make a valid payment for their stay. Images from the operator’s Automatic Number Plate Recognition system have been provided, which show that the appellant’s vehicle entered the car park at 12:33 and exited at 15:05 on the day in question, staying for a total of two hours and 31 minutes. A copy of its transaction report has also been provided, showing that a payment had not been made in connection with the appellant’s vehicle, registration AG08 DEU, that day. It appears a contract between the driver and the operator was formed, and the operator’s case file suggests the contract has been breached. I will consider the appellant’s grounds of appeal to determine if they dispute the validity of the PCN. Within their grounds of appeal, the appellant has stated that the motorist believed that they had paid, however were not issued with a receipt. They have advised that the motorist did everything that they could to try to pay and to resolve the issue. As POPLA is an evidence based service, we must base our decisions on the evidence put forward by both parties. While I acknowledge the appellant’s version of events, the data provided suggests that the motorist simply did not make a valid payment for their stay. In the absence of sufficient evidence to suggest otherwise, I can only conclude this to be the case. As the motorist was not issued with a receipt and money was not taken from their bank account, I consider that they would have been aware that they hadn’t paid. For the avoidance of doubt, it is solely a motorist’s responsibility to ensure that they have made a valid payment for their stay. I note the appellant’s comments that the machine states that it does not issue tickets, however I can see that the signage advises that tickets are issued and motorists are not required to display them in their vehicles. If the motorist was unable to purchase a ticket for any reason, they would need to have left the site immediately and made alternative parking arrangements to avoid incurring a PCN. Further, I note that the appellant has stated that the amount of the parking charge is not a genuine pre-estimate of loss and has offered to pay the original parking tariff. This matter was considered at length by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. In this case, the Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists. This “legitimate interests” approach moved away from a loss-based analysis of parking charges: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage. While the specific facts of the case concerned a free-stay car park where the motorist had overstayed, I consider the principles that lie behind the decision remain the same. Taking these principles into account, I am not going to consider whether the loss is a genuine pre-estimate of loss or whether it reflects a correct loss to the landowner. Rather, I am going to consider the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore allowable. Furthermore, I have reviewed the evidence provided by the appellant and I acknowledge that the motorist has tried to resolve the issue. Regrettably, this does not affect the validity of the PCN. Ultimately, the motorist did not make a valid payment for their stay. By doing so, they have failed to comply with the site’s terms and conditions. For the reasons outlined above, the appeal is refused.
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One of my victims' result. Win thanks to a clerical error
Decision
Operator - Civil Enforcement (England/Wales)
The operator has issued a Parking Charge Notice (PCN) to the motorist for remaining at the car park for longer than the maximum 15 minutes free parking time and without obtaining a permit thereafter.
The appellant has raised a number of grounds of appeal in a document to POPLA. The grounds raised are as follows: • No Keeper Liability – driver has not been identified. • Genuine Customer of Pharmacy • Inadequate Signage • Failure to comply with the ICO Code of Practice for ANPR • Non-compliant images in the notice to keeper • ANPR accuracy • No Landowner Authority In support of this appeal, the appellant has provided the following evidence: • a photo of a sign The above evidence has been taken into account during my assessment of this appeal. The appellant has commented on the operator’s case file, expanding on their initial points raised.
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. The appellant has raised a number of grounds of appeal to POPLA however, I will be focusing on one ground only, that being landowners authority as they have questioned this. The British Parking Association (BPA) monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet. Section 7.1 of the BPA Code of Practice outlines to operators: “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. Further, under the Protection of Freedoms Act (PoFA) 2012, it states that “a notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met… (2)The notice must— (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Having reviewed the notice to keeper issued, I can see that it lists an address of ‘CAR PARK TO THE REAR OF <redacted> PHARMACY, <redacted>, England’ which is where the supposed contravention had taken place. I have reviewed the witness statement that has been provided by the operator within its case file. The witness statement and this confirms the operator has the authority to operate on ‘Main Road, Arrochar, G83 7AA [Scotland]'. The address on the witness statement does not match the address on the PCN. It does not appear to me this is the same site. Therefore, from this, I cannot conclude that the operator has permission to operate on the land where the appellant parked as the address on the witness statement differs from that on the PCN. I will be allowing this appeal on the basis that the witness statement has not met the requirements of section 7.1 of the BPA code of practice and so, all other grounds raised do not require any further consideration.