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edited 28 October 2016 at 9:29AM in Parking tickets, fines & parking
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Good result nonetheless.
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.
Assessor summary of operator case
The operator states that the appellant’s vehicle was parked for longer than allowed, and has issued a parking charge notice (PCN) for £100.
The appellant states that the PCN didn’t comply with the Protection of Freedoms Act (POFA) 2012, in that it didn’t specify the land in question or the period of parking. They say there is no evidence the operator had relevant authority from the landowner to operate on site. They advise the operator didn’t allow the appropriate grace period. They state the operator didn’t respond properly to their direct appeal. They say signs didn’t make the terms, and specifically the amount of the charge for breaching them, clear. The appellant has provided a document elaborating on the above appeal grounds in detail. Having seen the operator’s evidence, the appellant expands on some of their original appeal grounds.
Parking operators can pursue one of three people or entities for payment of a parking charge: either the driver of a vehicle when it was parked under contract law or, where the driver has not been identified, either the registered keeper or hirer of a vehicle under the provisions of POFA. POFA is a piece of legislation that affords parking operators the right to transfer liability for payment of a parking charge from the unidentified driver of a vehicle to the registered keeper or hirer of that vehicle, providing certain conditions are met. One condition is that an operator must issue a “notice to keeper” and that the notice must include certain information. One of the requirements is that such a notice must “specify […] the relevant land on which [a vehicle] was parked”. The evidence includes a copy of the PCN, or “notice to keeper”, which stated that the vehicle had been parked “at XX Street”. I can’t accept that this met the requirements of POFA in terms of specifying the relevant land, given there are likely several different XX Streets throughout the country, as well as multiple different premises or addresses situated on each. I note that the operator’s contract with the landowner to manage parking on site refers to the site as “XX Street Retail Park”, and that the operator refers to the site as such throughout its evidence for this appeal, and so it is unclear why the PCN itself didn’t also refer to the site as such. I am not satisfied from the evidence that the PCN complied with POFA, nor therefore that the operator has any basis to pursue the appellant for payment of the charge as the vehicle’s keeper. I am not therefore satisfied that the PCN was issued correctly and must allow this appeal.
Can we talk about the fact its 'rationale' not 'rational'?
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
The operator has issued the parking charge notice (PCN) due to using the drop-off zone without making a valid payment.
The appellant has provided documentation supporting their appeal and the issues they have raised.
The appellant lists the following grounds of appeal with a fair amount of detail. I have assessed each point made when reviewing this information.
The appellant states that:
• Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012.
• Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
• The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref: POPLA case Carly Law 6061796103)
• Reasonable cause for requesting keeper details from DVLA
• No landowner contract nor legal standing to form contracts or charge drivers Within their comments to the operator’s evidence, the appellant has expanded on the driver liability ground in further detail.
The appellant comments further that it is impossible to learn about the terms, as the area is extremely busy and at no point can a driver in moving traffic and the PCN amount is mentioned in small print. Within their additional comments to the operator’s case file, the appellant has stated that the vehicle was only on the site for two minutes therefore, the driver did not gain utility of the site and no consideration period has been taken into account.
The appellant has commented further that POPLA must alert the BPA to the unlawful Toll Road issues, as this is not parking management and POPLA must deal with such appeals on a regular basis. The appellant has also provided evidence of their payment receipt, in support of the appeal.
Within their original appeal to the operator, the appellant has admitted to being the driver on the date of the parking event.
As such, I am considering the matter of driver liability for this case.
When parking in a car park that is subject to specific terms and conditions, a motorist who uses the site does so under contract with the parking operator.
The terms and conditions should be stipulated on the signs displayed within the car park to allow the motorist to decide if they wish to accept or not.
In assessing this case I have reviewed the signage and the terms state: “Terminal 2 Passenger Drop Off…£5.00 per visit…A Parking Charge Notice (PCN) will be issued for failure to pay or comply with the terms and conditions…Payment must be made by Midnight on the day after your visit…Pay online or by phone heathrow.com/dropoff 0330 008 5600…PCN Charges £80…”
The operator has provided photographic images of the vehicle on the site at xxxx on xxxx. The operator has provided its payment data log, showing that no payment was made against vehicle registration xxxxxx on the date of breach. The operator has provided a copy of its Contract for Parking Enforcement and Landowner Authority, signed by the landowner and dated 1 October 2021, authorising the operator to manage to car park on its behalf.
The appellant has explained in detail that the operator has not complied with the requirements and timetable set out in Schedule 4 of POFA 2012 and the relevant land under POFA 2012.
The appellant goes on to explain that no registered keeper liability has been established and has referred to the POPLA case 6062356150 to support this part of the appeal. The operator has also not shown that the individual who it is pursuing is in fact the driver who was liable for the charge, as per the POPLA case of 6061796103.
The appellant goes on to explain further that there is no reasonable cause for requesting keeper details from DVLA. Within their comments to the operator’s evidence, the appellant has expanded on this ground, advising that the driver has not been admitted at any point. The Protection Of Freedom Act 2012 (PoFA 2012) is used to hold a vehicle’s keeper liable for a PCN where the driver has not been identified.
In order for a parking operator to use POFA to hold a keeper liable it must follow the requirements of POFA. I understand that that appellant says the operator has not complied with the requirements of PoFA however, as I have mentioned earlier in my report, the appellant has identified themselves as the driver and therefore, PoFA does not apply in this case.
Whilst I acknowledge that the appellant has quoted two separate assessments from POPLA, POPLA assesses appeals on an individual basis and is based on the evidence submitted by both parties. As these reports have no bearing on the events surrounding this contravention, I do not consider them relevant to my assessment. 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. Having considered the parking terms stated at the site, I can see that a payment of £5.00 was required to cover the motorists parking time. According to the data log provided by the operator, the payment was not made until xxxxx, which was three days after the date of the parking event.
As such, the payment was not made to cover the motorists stay for the date in question and the PCN has been issued. I have considered the appellant’s screenshot of the payment confirmation and whilst I do not dispute that payment was made, it had to be made by midnight on xxxx before it could be registered. As such, this evidence does not support that the motorist correctly made payment in accordance with the terms and conditions stated.
As part of their detailed grounds within the appeal letter, the appellant has highlighted that the signs do not help form a contract without any consideration capable being offered. In their comments to the operator’s case file, the appellant expands on this point further the signs are incapable of forming a contract and there is no information about how to pay online or at all and there is no £80.00 sum in large lettering, unlike the case of Beavis.
The appellant comments further that it is impossible to learn about the terms, as the area is extremely busy and at no point can a driver in moving traffic and the PCN amount is mentioned in small print. The British Parking Association (BPA) has a code of practice, which sets the standards for its parking operators. Section 19.1 of the BPA code of practice states that signs must be provided to make it easy for motorists to find out what the terms and conditions are. Section 19.3 continues that 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. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
After reviewing the signage provided, I can see that the terms clearly state that any motorist using the drop-off zone must pay £5.00 and failure to do so will result in the issue of a parking charge. The site map shows me that 20 signs are displayed across the car park, including large signs positioned at the entry point to the area in question, which is suitable considering the layout of the site. I can see that the signs are positioned at a height as to not be obstructed by vehicles and I am satisfied that the size of the writing is clear so that the terms can be read, including the PCN amount.
Whilst I appreciate that the appellant believes that the signage is not clear regarding the parking fee, they have admitted in their original appeal, and subsequently provided evidence of their eventual payment, that they were aware of the need to make payment. As such, it is clear that the motorist was aware of what they were required to do to cover their parking time. Having considered the signage in place at this particular site, against the requirements of Section 19 of the BPA Code of Practice, I am of the view that the signage is sufficient in alerting motorists to pay for their parking.
The appellant explains that no landowner contract, nor legal standing to form contracts or charge drivers. The appellant has expanded on this ground within their detailed letter. Section 7.1 of the code of practice outlines to operators that they must have the written authorisation of the landowner (or their appointed agent) before being appointed to manage the land.
The written confirmation must be given before the operator starts operating on the land in question and is given the authority to carry out all the aspects of car park management. In particular, it must say that the landowner (or their appointed agent) requires the operator to keep to the Code of Practice and that they have the authority to pursue outstanding parking charges. In respect of landowner authority, the definition of the land in question and the statement provided by the operator does conveys to the site in question and is signed by a representative, on behalf of the landowner.
This contract also shows me that the agreement is in place from 1 October 2021 until 30 December 2029, which indicates to me that the operator had the relevant authorisation to issue parking charges on the date of contravention. If the landowner no longer wished for the operator to manage the site, then an earlier end date of would likely to have been stated within the documentation.
After reading this evidence, I am satisfied that the agreement for the operator to manage parking on this land is in place and an adequate definition of the site in question has been stated. Within their additional comments to the operator’s case file, the appellant has stated that the vehicle was only on the site for two minutes therefore, the driver did not gain utility of the site and no consideration period has been taken into account.
I note the appellant has provided such comments however, this section is for providing comments and not for raising new grounds of appeal. As the appellant did not raise any issues with consideration periods as part of their initial grounds for appeal, I am unable to consider new grounds at this stage.
The appellant has commented further that POPLA must alert the BPA to the unlawful Toll Road issues, as this is not parking management and POPLA must deal with such appeals on a regular basis. Whilst I appreciate the appellant’s further comments, it is only within POPLA’s remit to consider whether a PCN has been issued correctly for the date of contravention. It is not within remit to comment the volume of appeals that are received for the same site, as this has no bearing on the motorists ability to comply with the parking terms on the date in question.
Should the appellant wish to raise this matter further, they would have to contact the BPA directly.
I have considered the appellant’s detailed letter and whilst I acknowledge the detail they have provided, this does not support that the PCN has been issued incorrectly on this occasion. It is the motorist’s responsibility to agree with the terms and conditions of the car park.
As the motorist used the drop-off zone without making a valid payment, the terms and conditions were not met. As such, I conclude the PCN has been issued correctly. Accordingly, I must refuse this appeal.
IGNORE APCOA. Completely benign.
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
Parking Operator: Local Parking Security (LPS)
Car Park: Rosebird Centre, Stratford-upon-Avon
Assessor Name: Heidi Brown
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) due to failure to pay for the duration of the stay.
Assessor summary of your case
The appellant’s case is that the driver parked in an area which was not subject to pay and display. They state the hall owns five spaces within the site which is where the vehicle was parked. The driver registered for exemption however the charge has not been issued for failure to input the VRM. They state the notice to keeper has failed the Protection of Freedoms Act (PoFA) requirements by not exampling the charges due. They further state there is a lack of notice of the parking charge on the signage in accordance with PoFA 2012. The appellant also states the operator has failed to keep the keeper liable as there has not been a relevant breach of contract. This is because the operator has tried to invoke an irrelevant term. The appellant advises the ANPR cameras and signs fail to account for the different rules which apply to reserved bays. Upon reviewing the operator's evidence, the appellant has raised new grounds of appeal and expanded on their grounds. The appellant has provided copies of their meeting attendance, a photo of the registration machine, a photo of the reserved spaces and a photo of the hall website.
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. In this case the operator has issued the PCN to the appellant for failure to pay for the duration of the stay. The appellant has told us in their response that they consider the charge is unfair. The fairness of parking charges was considered more broadly by the Supreme Court in the case of ParkingEye v Beavis  UKSC 67. To conclude on whether the charge is fair, I must first look at what the Court said. The Court recognised that parking charges have all the characteristics of a contractual penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists: “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. The Court made it clear that the same considerations that means it was not a penalty also mean it is not unfair: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations.” (paragraph 104) With that in mind, to conclude whether it is unfair, I must consider the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is not sufficiently brought to the attention of motorists on the signs and is therefore I cannot conclude it meets the test set out in ParkingEye v Beavis. Based on the evidence provided, I cannot conclude that the PCN has been issued correctly. Accordingly, I must allow the 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.