POPLA Decisions

Jamzero

Operator name
Parking Solutions 24

Location
Salford University - Museum car park

Decision

Successful

Assessor Name

Eileen Ioannou

Assessor summary of operator case

The parking operator has issued the Parking Charge Notice (PCN) for failing to adhere to the terms and conditions.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. • No landowner authority • Unclear signage • No keeper liability in the absence of a Notice to Keeper in line with the Protection of Freedom Act (PoFA) 2012 under 4 (1), 6 (1) adding that the notice should be delivered inside the relevant period inside 56 days

Assessor supporting rational for decision

From the evidence the operator has provided, I can see that the operator is pursuing the appellant as the keeper of the vehicle. As the driver of the vehicle has not been identified, the provisions laid out in the Protection of Freedoms Act 2012 will need to be followed in order to transfer liability from the driver of the vehicle to the keeper of the vehicle. Within their appeal, the appellant has indicated they are the keeper of the vehicle. In response to this, the operator has begun to pursue the appellant for the unpaid parking charge. The operator has not made reference to PoFA 2012 and it has not provided any evidence to show that a notice to keeper has been issued. As the notice to keeper has not been provided, I am unable to determine whether the parking operator has followed the correct process to allow it to pursue the keeper of the vehicle for the unpaid parking charge. There is no evidence provided to suggest that the operator has made a request for keeper details to the DVLA. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is liable for the parking charge.

SkyeScrambler

Quick update with some good news on my unsuccessful POPLA decision posted on 8 March. I went back to square one and wrote an angry complaint letter (found template on here) to the retail park landowner/agent. Got an email from their business support team that my parking charge has been cancelled. Yes, I know now that I should have done that in the first place and skipped all the scamming POPLA process. You live and learn. 

Umkomaas

Yes, I know now that I should have done that in the first place and skipped all the scamming POPLA process. You live and learn. 

Yes, Plan A always advised as first step, but draw comfort on two counts - (1) the PPC, despite thinking they'd got one over on you, instead has been told by the landowner to push off and (2) they will have had to pay POPLA £30 for dealing with the appeal. 😄

Which parking firm?

dragoat

I'd like to thank everyone for all the advice on this forum. Without it I wouldnt have been able to get a successful decision.

I started with a complaint letter to the retailer - they did not care! Most importantly I never contacted the operator of the car park, and I never identified the driver. The NTK did not include any wording to pass the NTK to the driver and so the Popla appeal was successful based on the NTK not complying with PoFA 2012.

Here are the details. 

Operator name
Premier Park

Location

Silver Blades, Gillingham (ANPR)

Popla Ref:
6660663597

Date
08/05/2023

Decision

Successful

Assessor Name

Naomi Littler

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to whole period of parking not paid for.

Assessor summary of your case

The appellant has provided a detailed document containing their grounds of appeal. For the purpose of this report the appellants grounds have been summarised into the following points. • The Notice to Keeper does not comply with the Protection of Freedoms Act (PoFA) 2012. • The payment machine was not functioning correctly. Resulting in frustration of contract and the terms void for impossibility.• The signage is inadequate. • There is no evidence of landowner authority. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal

Assessor supporting rational for decision

The driver’s details are unknown therefore, I need to assess if the PCN is complaint with the relevant aspects of the Protection of Freedoms Act (PoFA) 2012, in order to transfer the liability to the registered keeper. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. Parking operators must follow certain rules including warning the registered keeper that they will be liable for the charge if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question does not state “pass this notice to the driver” or words to this eff etc, and therefore the parking operator has failed to transfer the liability onto the registered keeper. I note the appellant submitted other grounds of appeal to POPLA. I do not feel that the additional grounds require any further consideration as I have concentrated my decision on the reasoning above. Accordingly, I must allow the appeal.

Umkomaas

@dragoat. Very well done, and especially without any handholding from the forum. PoFA failure is fatal for the PPC when it is correctly identified.  Why PP wasted £30 on the POPLA appeal when surely they read your appeal and must have realised you'd holed them below the waterline. Nice one. 👍

And thank you so much for the feedback - of great importance to regulars so we know how POPLA are dealing with things, which influences the advice we give to subsequent cases. 

Coupon-mad

Useful to know with Premier Park cases.  They've struggled with POFA wording for years.

ampersand

Another assessor has a Freudian moment, writing 'complaint', rather than 'compliant'.
Not the first, won't be the last:-)

popla_choice

Many thanks to everyone who has contributed to this forum over the years. I put together a POPLA appeal based on the info here and it seems to have done the trick...

'The operator has contacted us and told us that they have withdrawn your appeal'

It was a 'fluttering ticket' case and the operator was P4Parking. In addition to the usual 'incorrect signage' and 'landowner authority' texts, I added a few bits based on the AOS Code of Practice. No idea what effect they had on the appeal but I'll post them here in case they're of use to anyone...

Incorrect text used when rejecting appeal, in breach of the AOS Code of Practice

P4Parking's appeal rejection email contains the following statement...

By law, we are also required to inform you that Ombudsman Services (www.ombudsmanservices.org/) provides

an alternative dispute resolution service that would be competent to deal with your appeal, however, we have not

chosen to participate in their alternative dispute resolution service. As such should you wish to appeal, then you

must do so to POPLA, as explained above.

 

No such dispute resolution service exists at www.ombudsmanservices.org/, the website address given and hyperlinked in the document. This is another breach of the AOS Code of Practice (23.12b – which is very clear about the text required) and, by the statement's own logic, P4Parking acted unlawfully when rejecting my appeal.

Not only that, acting unlawfully is a further breach of the AOS Code of Practice ('4.3 Under the Code you must keep to all the requirements laid down by law') which is another reason to consider P4Parking not eligible to issue this penalty charge notice.

If you're wondering, the Code of Practice text correctly includes a hyphen in the Ombudsman Services web address, whereas P4Parking's appeal rejection does not. Live by the minor keying error, die by the minor keying error.

And here are a couple of other sections where I questioned the operator's use of intellectual property...

Misleading information regarding the landowner

Evidence of landowner authority (see section below) is doubly important here because the lack of an entrance sign (P4Parking does not comply with paragraph 19.2 of the AOS Code of Practice), and unclear signs elsewhere, means there is nothing on site to identify the landowner. And thanks to an extremely misleading parking charge notice, with the 'Premier Inn' brand name used in a way intended to give the impression that the parking charge was issued by P4Parking working on behalf of Whitbread PLC, I wasted a lot of time communicating with the wrong people within the wrong company regarding this case.

 

Multiple contacts within Whitbread PLC have confirmed that, despite the use of the trademark 'Premier Inn' on the parking charge notice, they are not the landowner of the car park in question.

The confusion caused by the misleading use of the 'Premier Inn' name delayed this appeal as I had approached Whitbread PLC as the presumed landowner rather than as the issuer of the licence to use the 'Premier Inn' name on parking charges relating to this property.

But in any case, Whitbread PLC subsequently confirmed that they don't hold information showing that P4Parking is licenced to use the name 'Premier Inn' on a parking charge notice for this car park. So, for me to be able to clarify the situation properly with Whitbread PLC, I require the landowner and P4Parking to provide the names of their contacts at Whitbread PLC together with all documentation regarding the licensing of Whitbread PLC's intellectual property, the trademark 'Premier Inn', on payment demands relating to the property, and documentation from general counsel at Whitbread PLC, or his office, stating that the parking charge notice, which features the trademark 'Premier Inn', has been approved by Whitbread PLC.

The misuse of intellectual property, passing off, etc, are potential serious breaches of the of law and paragraph 4.3 of the AOS Code of Practice states that 'under the Code you must keep to all the requirements laid down by law' so failure to provide the requested information proving that P4Parking has sufficient rights to use the trademark 'Premier Inn' means the penalty charge notice must be considered to have been issued incorrectly.

Incorrect information on the parking charge notice

The wrong car park is listed in the 'site' field on the parking charge notice. I was not parked in the 'Premier Inn' car park as indicated on the penalty charge notice (see section above for details) and therefore the penalty charge notice was not issued correctly.

There's a possible alternative to a complaint to landowner in there, if anyone finds their parking charge notice misuses a trade mark as the location. Tesco or whoever might not own the car park in question but they do have people who are paid to care about the use of their intellectual property.

In this case, Premier Inn weren't particularly helpful or sympathetic (and they'll be getting a TrustPilot review making that clear) but they did provide just enough for me to put the ball in P4Parking's court.

Hope that helps. Thanks all once again.

B789

Excellent! I love your one-liner that sums up the PPCs intellectual malnourishment: "Live by the minor keying error, die by the minor keying error."   

popla_choice

B789 said:

Excellent! I love your one-liner that sums up the PPCs intellectual malnourishment: "Live by the minor keying error, die by the minor keying error."   

Speaking of minor keying errors, I also included this section, for my own sanity if nothing else...

A “fluttering ticket” is akin to minor keying error

Look, I know this isn’t going to be considered grounds for a successful appeal but I want to record it here so it’ll be available to refer to in any future court action.

I've been driving (and parking) for over thirty years, and this is the first yellow envelope I've ever seen on my windscreen.

And, as can be seen from the text of my initial appeal to P4Parking – a friendly note to say 'Look, I paid to park, here's the proof, please cancel the charge' – it simply would not have occurred to me, no matter how clear (or unclear in this case) the terms and conditions of the car park, that proof of purchase of a ticket to park, with the vehicle registration number on it, would be insufficient grounds to cancel a parking charge issued after a ticket flipped over on the dashboard.

I think it's always been the case that it wouldn't have occurred to me, but it is especially the case in the 21st century, when most of my parking is paid for using parking apps.

In the mind of a motorist (or at least a motorist who hasn't stared in bafflement, as I did, at a rejected parking charge notice appeal), the paper thing that you put in the window of your vehicle is not the important part of the 'pay & display' process anymore. The electronic record is the thing these days, not the paper slip. The paper slip almost belongs in a different era.

By asking the motorist to type the vehicle's registration number into the payment machine, private parking companies are reinforcing this way of thinking. By not providing adhesive with the tickets, private parking companies are reinforcing this way of thinking. By using apps and websites and ANPR, private parking companies are reinforcing this way of thinking.

The electronic record is the thing.

And the AOS Code of Practice provides a perfect passage to cover a "fluttering ticket" event...

No one wants to receive a parking charge for making a mistake ... when they have paid for the parking event. Motorists, car park operators, service providers and equipment manufacturers all have a responsibility in ensuring that obvious and inadvertent errors do not lead to unjustified charges.

In this case, in paragraph 17.3, the Code is referring to minor keying errors, but the same should apply to "fluttering tickets". No one wants to receive a parking charge when they've gone to the trouble of paying the correct amount and typing in their registration number only to find that the non-sticky paper ticket didn't stay put due to wind or a draught caused by one of the kids climbing clumsily over the seat. It doesn't make logical sense for a motorist to do all the right things but then deliberately invite a parking charge by misplacing the ticket. It is an inadvertent error. Of course it is. And it should not lead to an unjustified charge.

And happily, the minor keying error section of the Code of Practice also provides the perfect remedy, in paragraph 17.4…

If a typing error such as this leads to a PCN being issued and the motorist appeals, the PCN must be cancelled at the first stage of appeal.

There. A precedent is set that an inadvertent error must lead to a cancelled penalty charge notice, and the world does not end. The same should apply to "fluttering tickets". Of course it should.