POPLA Decisions

Coupon-mad

There's an Assessor who interprets the Code of Practice 5 minutes as the minimum it really is. Well done that Assessor!

SickBrain

Decision

Unsuccessful

Assessor Name

Gayle Stanton

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) because the appellant’s vehicle was parked on the site for longer than the maximum period allowed.

Assessor summary of your case

The appellant has provided the following grounds of appeal: The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis ; No maximum permitted parking limit stipulated when original planning permission was granted ; The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge ; Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period; No evidence of Landowner Authority; The ANPR system is neither reliable nor accurate; BPA Code of Practice - further non-compliance - photo evidence. In the comments the appellant states that the images provided are blurred, unreliable and outdated. They say that the signs and the payment machine information are not identical and therefore misleading. They state that the entrance sign is difficult to read and there is a sticker as a number which means that the length of stay has been compromised or changed. They say that there are no site numbers on the signage and there is no evidence that this evidence is for the same site. They advise that the operator has not provided any maintenance records for the ANPR system only an automatic response. They add that the operator has also not provided the planning permission and no expiry date on the contract.

Assessor supporting rational for decision

The operator has issued the Parking Charge Notice (PCN) because the appellant’s vehicle was parked on the site for longer than the maximum period allowed. 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 photographic evidence of the signage including a site map which states: “.MAXIMUM STAY 2 HOURS…FAILURE TO COMPLY WITH THE FOLLOWING WILL RESULT IN THE ISSUE OF A £100 PARKING CHARGE NOTICE…MAXIMUM STAY 2 HOURS….” The operator has provided photographic evidence of the vehicle entering the site at 13:17 and exiting the site at 15:48 totalling a stay of two hours and 30 minutes 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. The appellant states that the charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis. The appellant has told us in their response that they consider the charge is a penalty and does not reflect the loss to the landowner and is therefore not a genuine pre-estimate of loss. 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 that the charge is appropriately prominent and in the region of £85 and is therefore allowable. I note that the appellant has advised that they believe that the operator has breached the CRA regulations however POPLA’s role is to determine whether the PCN has been issued correctly and we do this by assessing whether the operator has complied with the BPA Code of Practice and the Protection of Freedoms Act(PoFA) 2012. The appellant may need to contact the CRA directly for assistance regarding this issue. The appellant advises that no maximum permitted parking limit stipulated when original planning permission was granted. They add in the comments that the operator has not provided the planning permission I note that the appellant’s ground for appeal is whether the operator has the appropriate planning permission for the location and whether this includes a maximum permitted stay. Please note, that POPLA’s role is to assess if the Parking Charge Notice (PCN) has been issued correctly. POPLA is not equipped to assess the merits of a planning application or lack thereof. On this basis, my decision would focus on the other aspects of the appeal in order to determine if the PCN has been issued correctly. The appellant states that the operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge. In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act (PoFA) 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. I will therefore be assessing keeper liability. The appellant states that there is a lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period. In the comments the appellant states that the images provided are blurred, unreliable and outdated. They say that the signs and the payment machine information are not identical and therefore misleading. They state that the entrance sign is difficult to read and there is a sticker as a number which means that the length of stay has been compromised or changed. They say that there are no site numbers on the signage and there is no evidence that this evidence is for the same site. The British Parking Association Code (BPA) of Practice sets the standards by which its members must abide by. Section 19.3 of the code states that signs must be placed throughout the car park so that drivers have the chance to review the terms and conditions. The code confirms that these signs must be conspicuous and legible and written in intelligible language so that they are easy to see read and understand. I acknowledge the appellant’s comments regarding the entrance sign however, while an entrance sign plays an important part in establishing that a site is managed, there must be other signs around the site, bringing the specific terms and conditions to the motorist’s attention. The operator has provided multiple images of the signs within the car park and after reviewing these, I am satisfied that there are plenty of signs located within the car park and that these signs meet the requirements of section 19.3 of the Code of Practice. The appellant says that there is no evidence of Landowner Authority and no expiry date on the contract. The appellant says that they have seen no evidence that the operator has written authorisation from the landowner (or their appointed representative) to operate on this site. I note the appellant’s comments and I refer to Section 7 of the British Parking Association(BPA) Code of Practice which states in 7 .1 “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. 7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken. 7.3 The written authorisation must also set out: a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d who has the responsibility for putting up and maintaining signs e the definition of the services provided by each party to the agreement”. The operator has provided a redacted contract and I am satisfied that the operator has the authority to issue PCN’s on this site. The operator does not need to provide a full copy of the full contract as it may contain commercially sensitive information. The evidence in relation to this appeal meets the criteria POPLA requires. I have taken into consideration the fact there are signs in situ and the evidence suggests the signage and equipment has been there since 2020 in conjunction with the fact that there is no evidence to suggest that the contract is no longer in place. I am therefore satisfied that the operator has sufficient authority at the site on the date of the parking event. The appellant advises that the ANPR system is neither reliable nor accurate. They state in the comments that the operator has not provided any maintenance records for the ANPR system only an automatic response. Independent research has found that ANPR technology is generally reliable. However, POPLA will on occasion, receive appeals from motorists who claim there has been an error with the ANPR. When considering such appeals, POPLA must consider if there is any evidence to cast doubt on the ANPR’s accuracy. This can come from either the appellant or be included as part of the parking operator’s evidence pack. The burden of proof begins with the operator to show it issued the PCN correctly. If they do that by providing ANPR images that support its version of events, the burden of proof then passes to the appellant. If the appellant provides a version of events or evidence that then casts doubt on the legitimacy of the ANPR technology, it is then up to the POPLA assessor’s judgement as to whether this is sufficient to show the technology was not working. Evidence of inaccuracy can come in a number of forms, including the appellant’s explanation of events. But physical evidence, such as a receipt to show the appellant was elsewhere, will often be more persuasive. The appellant states that the photographs used by the operator do not comply with Section 20.5a of the British Parking Association (BPA) Code of Practice . I have reviewed the evidence provided by the operator and I am satisfied that the photographs provided by the operator are compliant with Section 20.5a of the BPA Code of Practice as they are clear and date stamped. Fundamentally, it is the motorist’s responsibility to check for any terms and conditions, and either adhere to them or choose to leave. The motorists chose to stay, therefore accepting the terms and the parking charge that the operator has subsequently sent to them. After considering the evidence from both parties, the appellant’s vehicle was parked on the site for longer than the maximum period allowed and therefore did not comply with the terms and conditions of the site. I am satisfied that the parking charge notice has been issued correctly. Therefore, this appeal must be refused.

I was so hopeful for this one to be successful. I have spent many hours reading posts here and trying my best to write a good successful appeal even though English is not my first language but it appears that it wasn't so great after all. Can you guys tell me if it's worth spending more time with this and is there any chance that I may be successful if they take it to court or should I just pay at this point. We are talking about Euro car parks. Also is there a way to request the documents/statements I have written both to ECP and POPLA if I need them for further action? Thanks in advance, you are really helpful in spending all of your time on people like me!

Coupon-mad

You did really well, but POPLA decisions mean nothing at all.

Just ignore ECP. Collect the letters.

Obviously you already know to ignore debt recovery letters in the coming months, but to come back to your thread if you get a court claim, because you've hopefully seen that's all explained in posts 2 and 4 of the NEWBIES thread.

No-one pays this extortion.

POPLA Assessors are clueless: "The appellant may need to contact the CRA directly for assistance regarding this issue."

LOL!

So, they don't know what the Consumer Rights Act 2015 is and are basically saying:

"The appellant may need to contact the Consumer Rights Act directly for assistance regarding this issue."

ermmm...

RobBobBobBob

I haven't posted on MSE forums before now, but did follow the various guides and advice. Wouldn't have been able to do this without that help. So, thanks!

Euro Car Parks
Norton Street Car Park, Manchester

Decision
Successful

Assessor Name
Taylor-Jade Ryan

Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) due to no valid pay and display or permit was purchased.

Assessor summary of your case
The appellant’s case is that they are the keeper of the vehicle and are not liable for the charge, and the operator has not shown who the driver was liable for the charge.
- They say the entrance signs are inadequate and the charge is not brought to a motorist’s attention, and that the signs fail to warn drivers of what the ANPR is being used for.
- They state a grace period was not given.
- No evidence of landowner authority.
- No evidence of the period parked.
- The ANPR system is neither reliable nor accurate.
- No planning permission from Salford Council for pole mounted ANPR cameras and no advertising consent for signage.
- The images contained on the notice to keeper are not compliant with the British Parking Association’s (BPA) Code of Practice.

The appellant has reiterated their grounds and expanded on these within the comments. They have responded in detail to some parts of the operator’s case file. The appellant has provided a word document with evidence and an expansion of their grounds. The evidence provided has been considered in making my determination.

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 due to no valid pay and display or permit was purchased.

Section 7.1 of the British Parking Association’s 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”.

Within the appellants appeal, they have stated that they do not believe the operator has permission to issue PCN’s on the site in question. In this instance I would expect the operator to provide evidence of landowner authority. I have reviewed the evidence provided by the operator and it has not provided anything to show it does have authority from the landowner to operate on the land. Without any evidence of this I cannot confirm the operator does have the relevant authority from the landowner. As such, I cannot confirm the operator was authorised to issue PCN’s on the date of the alleged breach. 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.

fabs35

Success vs. Carflow at Chalfont St Peter

Decision

Successful

Assessor Name

Michael Pirks

Assessor summary of operator case

The Parking Operator has issued the parking charge notice (PCN) as the motorist overstayed the 60-minute maximum free stay period in breach of the terms and conditions of the car park.

Assessor summary of your case

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: • The minimum grace period was not considered • There is no evidence of landowner authority, which the operator must provide in accordance with the British Parking Association (BPA)’s code of practice. • The PCN charge is punitive and out of proportion. In their response to the operator’s case file, the appellant has reiterated their grounds for appeal in further details.

Assessor supporting rational for decision

By issuing the appellant with a PCN, the operator has implied that the motorist has not complied with the terms and conditions of the car park in question. It is the duty of the operator to provide evidence to POPLA of what the terms and conditions are at the site and that the motorist did not comply with such terms. I have to assess the appeal on the reason that the PCN was issued. The operator has issued the PCN as the motorist exceeded the maximum free time. The British Parking Association (BPA) has a code of practice, which sets the standards for its parking operators. In their appeal, the appellant has questioned that the operator has landowner authority. As such, I need to ensure that the operator manages the land that the appellant was parked on. As the appellant has referred to as part of their grounds for appeal, section 7.1 of the BPA Code of Practice outlines to operators that they must have the written authorisation of the landowner, or their appointed agent, in order to manage the site. The written confirmation must be given before operators can start operating on the land in question and give authority to carry out all the aspects of car park management for the site that the operator is responsible for. In particular, it must say that the landowner (or their appointed agent) requires operators to keep to the Code of Practice and that authority is permitted to pursue outstanding parking charges. The operator has provided me with an agreement for supply, showing that it has landowner authority to manage the car park. The contract does say that the initial start date for the agreement is 1 January 2016 and will expire after a five-year period however, there is no mention of contract rolling on following the end of the five-year period, which would have been 2021. I would also like to highlight that large sections of the contract are redacted and therefore, I cannot see any information that may indicate the agreement extends beyond 1 January 2021. It is the responsibility of the operator to show me that a valid landowner agreement was in place for the date of the parking event. In the absence of any evidence to support otherwise, I am not satisfied that this agreement meets the requirements set out in the BPA Code of Practice. As I cannot establish that the operator has sufficient authority, I cannot confirm that the PCN has been issued correctly. I have not considered any other grounds for appeal, as they do not have any bearing on my decision. Accordingly, I must allow this appeal.

DE_612183

Excellent - Lazy operator spanked!

rob3770

I only won!!!

Operator Name: Premier Park - EW

Location: Lakeside Retail Park, Thurrock, Essex

Decision: Successful

Assessor Name: Aimee Moulton

Assessor summary of operator case

The operator has issued a parking charge notice (PCN) because the vehicle was parked in an electric vehicle bay without being charged.

Assessor summary of your case

The appellants case is that there was an attempt to charge the vehicle but the pod was faulty. They say there are photographs to show the faulty pod and signage, and the number on the sign was called but it was outside of business hours. The appellant says that the sign only stated that a charge applies for overstaying 90 minutes, and they only stayed for 35, but this isn’t why the PCN was issued. In their comments, the appellant says that the sign which says only to park in the EV bays if charging the vehicle is in another bay and on a different level to where they parked. They say there was no such sign on or near the bay used.

Assessor supporting rational for decision

The burden of proof lies with the operator to rebut the appellants grounds of appeal and demonstrate that the PCN was issued correctly. The appellant has stated in their appeal that the sign only stated that a charge applies for overstaying. Within their comments, they expand on this and say that the sign stating that vehicles parked in the bay must be charging was not near the bay they used, and was is from another level. I have reviewed the photographs of the vehicle taken by the attendant on the day, and of the site in general which the operator has provided. There is evidence of only one sign which states that a vehicle parked in the electric vehicle charge bay must be charging however, when compared to the images taken of the alleged contravention, this sign is not present around the vehicle. I can see a number of signs around the vehicle that refer to the charge point, but none containing terms and conditions for parking in the bay. I acknowledge that signs containing the terms do not need to be placed at every bay, just throughout so that they can be seen however, as there are specific terms for different bays within the car park, I would expect to see signs stating the relevant terms in the vicinity of the relevant bays, and the photographs of the alleged contravention do not show that this is the case. I can only see ‘Chargemaster’ signage present. The stock image provided by the operator shows a sign containing terms next to a chargemaster sign on the green brick wall, but this isn’t present in the images of the alleged contravention. The evidence shows that all other signs around the car park do display general terms but none relating to EV charging. As such, I can’t determine that the relevant terms and conditions are brought to the attention of motorists parking in the bay in question. It is the responsibility of the operator to provide POPLA with sufficient, clear evidence in order to rebut the appellant’s claims and prove that it issued the PCN correctly. In this instance, I acknowledge the reason the PCN was issued, however I am not satisfied that the operator has adequately rebutted the appellant’s grounds for appeal to my satisfaction. I can only conclude that the PCN was issued incorrectly. Accordingly, I must allow this appeal. I acknowledge the other grounds raised by the appellant however, as I have allowed the appeal for the above reason, these do not require further consideration.

Coupon-mad

Refreshing to see an Assessor who has properly looked at all images and considered your relevant comment that the sign the operator is relying on was in fact on a different level.

Nicely done!

But please don't just go away for months now and forget about this forum. One more thing to do...

UK motorists need you!

Please make sure you join us in doing a robust response to the DLUHC's final Public Consultation of course.

Your voice is important.

All covered in the top thread by MSE_JC in a reply I put there.

Obviously to make sure you get alerted when the Consultation opens, you need to bookmark that thread after reading & understanding it, AND enable email alerts on your profile for new posts on bookmarked threads.

Umkomaas

Well done @rob3770 - for context, this was a Premier Park case. 

https://forums.moneysavingexpert.com/discussion/6388766/electric-space-parking-fine#latest

ohmy6od2

Decision

Unsuccessful

Assessor Name

Barry Arledge

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to not gaining the appropriate permit/authorisation.

Assessor summary of your case

The appellant’s case is that the PCN does not give a reason for issue. The appellant says the PCN refers to a car park and gives a location of a service yard. The appellant says they were delivering pallets and boxes to the site. • The appellant submitted 2 identical mages of the driver’s delivery note. • The appellant submitted an image of an emailed proof of delivery. • The appellant submitted a copy of the parking operator’s appeal rejection letter. • The appellant submitted an image of page 1 of the PCN. • The appellant submitted an image of the appeal they made to the parking operator. The appellant has commented on the operator’s evidence pack. Existing grounds have been expanded upon. The appellant has provided feedback on the operator’s evidence and feels parts have been photoshopped. The appellant has questioned the terms and conditions of use offered by the operator for the site.

Assessor supporting rational for decision

In this case, the appellant is a company, ***** ****** Ltd, and the driver of the vehicle is using the vehicle as a company car. Companies are responsible for the actions of their agents. As this is a company car provided to the driver for the purposes of carrying out their duties, I will be considering whether ***** ****** Ltd is responsible for the charge as principal on behalf of their agent, who was driving the vehicle and is not known. 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 operator has provided photographic evidence of the signage in place in the car park, which states: “Staff Only Parking”. The motorist is also advised that failure to comply with the terms and conditions will result in a PCN being issued for £85.00. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 12:26:34, and exiting at 12:58:34, a total duration of 32 minutes. The operator has provided evidence of its transaction report or ‘whitelist’ which details the registration numbers of vehicles against which a parking permit had been obtained. The appellant’s vehicle is not listed. 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. The appellant’s case is that the PCN does not give a reason for issue. The appellant says the PCN refers to a car park and gives a location of a service yard. The appellant says they were delivering pallets and boxes to the site. The parking operator has provided a full copy of the PCN issued to the appellant. The third paragraph on Page 2 gives a reason for its issue as “By not gaining the appropriate permit/authorisation”. As such I am satisfied an adequate reason was provided in the notice to the registered keeper. The appellant has questioned the use of the word car park while the PCN uses the word service yard. I am satisfied the terms car park has been used as a generic term to represent the site or land the operator manages parking upon. The operator has provided a site map which shows areas separate to the main customer car park at the back of the building and units. These areas are evidently a mix of staff car park and a service yard. I do not conclude the terms contradict each other or would invalidate the PCN in any way. I acknowledge the appellant says they were delivering pallets and boxes. I am satisfied that the evidence provided by the appellant supports this was the case. POPLA’s role is to determine if a PCN has been issued correctly based on relevant legislation, codes of practice and evidence from both parties. Whilst I understand the practical aspect of making a delivery highlighted by the appellant in the comments, I can only base this decision on the evidence put to POPLA. The parking operator has provided evidence from ANPR cameras showing the appellant’s vehicle in the service yard area of the site and supplied images showing the signs in place which communicate the terms and conditions to motorists. In this case those signs state the area used was in a staff only parking area. As the driver of the delivery vehicle was not a member of staff, I must conclude the terms and conditions of use were not met. I acknowledge the appellant feels the operator’s images have been photoshopped. I am not satisfied POPLA have been provided with evidence to demonstrate this was the case. In this case, the driver entered the car park in full acceptance of the terms of parking clearly displayed. Terms and conditions are offered; and by remaining in the car park, these are accepted. Ultimately, it is the driver’s responsibility prior to leaving their vehicle in the car park, to seek out the terms of parking, ensure that they understand them and to ensure that the vehicle is parked in accordance with the terms and conditions of that site. Based on the evidence provided by both parties, I conclude that the operator issued the PCN correctly. Accordingly, the appeal is refused.