POPLA Decisions

DaisyTheDoormouse

Highview Parking

Appeal Withdrawn by The operator

Received PCN notifying me under Protections of Freedoms (PoF).   However (I learnt after a quick bit research here)  that to comply with PoF it had to be delivered  within 14 days.  It was dated exactly 14 days after parking but delivery is presumed 2 working days later - making it out of time.  I appealled to them citing the relevant sections of the PoF.  They rejected my appeal - saying there were adaqaute signs and "We confirm the Charge was issued under Schedule 4 of the Protection of Freedoms Act 2012. As no driver details have been provided, we are holding the registered keeper of the vehicle liable." . They did not address my specfic point that the Charge was delivered too late for PoF to apply. 

I find it very diffcult to beleive that Highview / Nexus are unaware  of the terms of the PoF. This is clearly a delibarate attempt by this organisation to misrepresent the law in order to coerce money out of people for which they are not liable.

I appealled to POPLA.  The operator had 21 days to respond. On the 21st day I recieved this email from POPLA.

Dear Mr XXXXXX,

The operator has contacted us and told us that they have withdrawn your appeal.

If you have already paid your parking charge, this is the reason your appeal will have been withdrawn. Unfortunately, you cannot pay your parking charge and appeal, which means that POPLA’s involvement in your appeal has ended. You will not be able to request a refund of the amount paid in order to resubmit your appeal to us.

If you have not paid your parking charge, the operator has reviewed your appeal and chosen to cancel the parking charge. As the operator has withdrawn your appeal, POPLA’s involvement has now ended and you do not need to take any further action.

Kind regards

POPLA Team

I had not paid!

I have heard nothing from Highview.

So it was a victory - but I can't help feeling that Highview got away with some very questionable practices.

Rob_Bee

Hi All,
I've received my Polpa decision. Not what I'd hoped for but thought I'd post it here. I dont believe I just expanded on my original grounds in the comments for the appeal; there you go. Also, thanks to all who contribute to this area of the forum. I'm really amazed by the support you offer.

Decision

Unsuccessful

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to unpaid tariff time.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: • The ANPR system is neither reliable nor accurate. • The ticketing and payment recording systems are not sufficiently integrated. • Failure to comply with ICO code of practice applicable to ANPR, there is no information about SAR rights, privacy statement, no justification for 24/7 ANPR enforcement. • Signs in the car park are not prominent, clear or legible from all parking spaces. • No evidence of landowner authority. • They paid for 5 hours of parking. It is important to note that the appellant was provided the opportunity to comment on the operator’s case file, the appellant has expanded on their initial grounds within the comments. The appellant has provided a detailed appeal document as evidence to support their appeal. The above evidence will be considered in making my determination.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. 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 have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows the signs at the site state the terms and conditions of parking. The appellant has also made a payment to park at the site so they must have seen the signs to make this payment. I am satisfied the images the parking operator have provided reflect the signs on the site and they have complied with BPA code 19.3 and motorists are sufficiently informed of the terms and conditions of using the site. Section 22.1 of the Code of Practice says that parking operators may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The signs at the car park must tell drivers that this technology is being used and what the data captured by ANPR cameras will be used for. The signs inform motorists that data collected will be used to issue a PCN if a breach of the terms and conditions of parking occurred. I note the appellant has said that the parking operator has breached the ICO code of practice. POPLA assess appeals against the BPA code of practice. Any queries relating to the ICO would need to be raised directly with the ICO. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the parking operator has provided a contract signed by the landowner authorising them to manage the land. I am satisfied this gives the parking operator authority to manage the land and issue PCNs when a breach of the terms and conditions occur. The parking operator uses Automatic Number Plate Recognition (ANPR) cameras at the site to record how long each vehicle stays on the site for, this is then compared to the transaction list to check each vehicle has purchased the correct amount of parking time. As the transaction list provided by the operator only shows that 4 hours were purchased the PCN has been issued by the parking operator as an overstay of 50 minutes has occurred. The site in question is ANPR operated. Every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by. Independent research has found that ANPR technology is generally reliable. As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the appellant’s vehicle was elsewhere for this duration of time. Two ANPR images featured on the PCN show the appellant’s vehicle entering site at 12:27:01 and vacating at 16:40:32, 4 hour 50 minutes 35 seconds after arriving. However, no evidence has been provided by the appellant to show that they were in an alternative area between the time frames pictured on the PCN, so we are unable to presume that they were not on site after being pictured entering at 12:27:01 and not leaving until 4 hour 50 minutes 35 seconds later. As the appellant has not provided any evidence to the contrary, I will work on the basis that the information is accurate. I accept from the evidence that the appellant paid £5 for parking on site, however I cannot accept that this payment covered parking for any longer than 4 hours. Signs on site made clear that a payment of £4 would cover up to four hour’s parking, whereas a payment of £8 was required to cover up to 12 hours parking. There was no information on the signs to suggest that payment of any amount falling between the listed tariff charges would cover periods falling between the listed times on a pro-rata basis. It is important for me to explain that the tariffs on site are set tariffs and are non-negotiable, there is no option to purchase 5 hours of parking time, if a motorist is staying longer than 4 hours, they would need to purchase the up to 12 hour tariff for £8. Whilst I note the appellant has raised comments to POPLA after reviewing the operator’s case file, the comments reiterate the initial grounds raised and I have addressed those within my report. Therefore, the comments do not require any further consideration. After considering the evidence from both parties, the driver did not purchase enough parking time to cover their stay and therefore they did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

Coupon-mad

Rob_Bee said:

Hi All,
I've received my Polpa decision. Not what I'd hoped for but thought I'd post it here. I dont believe I just expanded on my original grounds in the comments for the appeal; there you go. Also, thanks to all who contribute to this area of the forum. I'm really amazed by the support you offer.

Decision

Unsuccessful

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to unpaid tariff time.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: • The ANPR system is neither reliable nor accurate. • The ticketing and payment recording systems are not sufficiently integrated. • Failure to comply with ICO code of practice applicable to ANPR, there is no information about SAR rights, privacy statement, no justification for 24/7 ANPR enforcement. • Signs in the car park are not prominent, clear or legible from all parking spaces. • No evidence of landowner authority. • They paid for 5 hours of parking. It is important to note that the appellant was provided the opportunity to comment on the operator’s case file, the appellant has expanded on their initial grounds within the comments. The appellant has provided a detailed appeal document as evidence to support their appeal. The above evidence will be considered in making my determination.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. 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 have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows the signs at the site state the terms and conditions of parking. The appellant has also made a payment to park at the site so they must have seen the signs to make this payment. I am satisfied the images the parking operator have provided reflect the signs on the site and they have complied with BPA code 19.3 and motorists are sufficiently informed of the terms and conditions of using the site. Section 22.1 of the Code of Practice says that parking operators may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The signs at the car park must tell drivers that this technology is being used and what the data captured by ANPR cameras will be used for. The signs inform motorists that data collected will be used to issue a PCN if a breach of the terms and conditions of parking occurred. I note the appellant has said that the parking operator has breached the ICO code of practice. POPLA assess appeals against the BPA code of practice. Any queries relating to the ICO would need to be raised directly with the ICO. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the parking operator has provided a contract signed by the landowner authorising them to manage the land. I am satisfied this gives the parking operator authority to manage the land and issue PCNs when a breach of the terms and conditions occur. The parking operator uses Automatic Number Plate Recognition (ANPR) cameras at the site to record how long each vehicle stays on the site for, this is then compared to the transaction list to check each vehicle has purchased the correct amount of parking time. As the transaction list provided by the operator only shows that 4 hours were purchased the PCN has been issued by the parking operator as an overstay of 50 minutes has occurred. The site in question is ANPR operated. Every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by. Independent research has found that ANPR technology is generally reliable. As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the appellant’s vehicle was elsewhere for this duration of time. Two ANPR images featured on the PCN show the appellant’s vehicle entering site at 12:27:01 and vacating at 16:40:32, 4 hour 50 minutes 35 seconds after arriving. However, no evidence has been provided by the appellant to show that they were in an alternative area between the time frames pictured on the PCN, so we are unable to presume that they were not on site after being pictured entering at 12:27:01 and not leaving until 4 hour 50 minutes 35 seconds later. As the appellant has not provided any evidence to the contrary, I will work on the basis that the information is accurate. I accept from the evidence that the appellant paid £5 for parking on site, however I cannot accept that this payment covered parking for any longer than 4 hours. Signs on site made clear that a payment of £4 would cover up to four hour’s parking, whereas a payment of £8 was required to cover up to 12 hours parking. There was no information on the signs to suggest that payment of any amount falling between the listed tariff charges would cover periods falling between the listed times on a pro-rata basis. It is important for me to explain that the tariffs on site are set tariffs and are non-negotiable, there is no option to purchase 5 hours of parking time, if a motorist is staying longer than 4 hours, they would need to purchase the up to 12 hour tariff for £8. Whilst I note the appellant has raised comments to POPLA after reviewing the operator’s case file, the comments reiterate the initial grounds raised and I have addressed those within my report. Therefore, the comments do not require any further consideration. After considering the evidence from both parties, the driver did not purchase enough parking time to cover their stay and therefore they did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

Which PPC please?  

Don't pay just because you lost at POPLA, which isn't properly/fully independent, being provided by the BPA.

Rob_Bee

PPC was Initial Parking ltd

Rob_Bee

Thanks Coupon-Mad. I still maintain I paid for the correct amount of parking so no plans to pay on the basis of the POLPA. Is my next step to wait for the PPCs to act?

Umkomaas

Rob_Bee said:

Thanks Coupon-Mad. I still maintain I paid for the correct amount of parking so no plans to pay on the basis of the POLPA. Is my next step to wait for the PPCs to act?

Yep, their move, let's see how they proceed, probably debt collector nonsense. Ignore that stage - read NEWBIES FAQ Announcement, fourth post, all about debt collectors. 

bergkamp

Euro Car Parks

Decision

Successful

Assessor Name

Michael Pirks

Assessor summary of operator case

The parking operator has issued the parking charge notice (PCN) as the vehicle was parked for longer than the maximum period allowed.

Assessor summary of your case

The appellant has raised the following grounds of appeal in detail:

• The parking operator has failed to comply with the requirements of Schedule 4 of the Protection of Freedom Act 2012 (PoFA 2012), as the PCN amount does not stand out on the signage. They have quoted this section of PoFA in support of the appeal.

• The parking operator has not established itself as the creditor and has no standing to issue parking charges. In their comments to the parking operator’s case file, the appellant has expanded on their grounds for appeal in further detail.

The appellant has provided the following evidence to support their appeal:

• A word document expanding on their grounds for appeal in further detail.

Assessor supporting rational for decision

I find in favour of the appellant.I will explain my reasoning below.

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. It is not clear who the driver is in this case and therefore, I must consider whether the parking operator has complied with the requirements of PoFA.

Parking operators must follow certain rules including telling the keeper that if they were not the driver they need to pass the PCN to the driver. In this case, the PCN in question does not mention this and therefore, the parking operator has failed to transfer the liability onto the registered keeper.

I have not considered any other grounds for appeal, as they do not have any bearing on my decision.

Accordingly, I must allow the appeal.

POPLA appeal below;

As registered keeper of VRM XXXXXXXX I am not liable for this charge.

Euro Car Parks have failed to comply with the strict protocols of Schedule 4 of the Protection Of Freedoms Act 2012;

Section 2

1. The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).

2. For the purposes of sub-paragraph (2) “adequate notice” means notice given by— (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or

   (b) where no such requirements apply, the display of one or more notices which— (i) specify the sum as the charge for unauthorised parking; and

   (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

As the enclosed photo of the signage at this site shows,the PCN amount does not stand out, is in small text and blends in with the rest of the sign.

Also Euro Car Parks have identified themselves as the 'creditor' in the Notice To Keeper I received.

The signage clearly states that Euro Car Parks manage the car park on behalf of Morrisons.

A disclosed principal means that the contract is with Morrisons, especially where an agent takes no responsibility for the land.

The authority of Fairlie v Fenton (1870) LR 5 Ex 169, is authority for the legal position, that where there is a disclosed principal, an agent cannot sue.

Therefore Euro Car Parks is not established as the creditor, has no standing to litigate and is merely acting as an agent, issuing charges on behalf of the principal, the disclosed landowner Morrisons.

Therefore as Registered Keeper, I cannot be held liable for this charge.

Rebuttal to ECP evidence pack below;

REBUTTAL

As has been made clear in my original appeal to ECP and in my POPLA appeal,the NTK I received and the signage on site do NOT comply with Schedule 4 of the Protection of Freedoms Act 2012.

ECPs own evidence pack shows this. It states;

• Figure 3 confirms that the NTK is POFA compliant.

Figure 3 bears no resemblance to the actual NTK I received, which is included earlier in the pack. It is a totally different document in wording and layout. From the NTK;

' If you were not the driver at the time the Parking Charge Notice was issued,please provide full name and address of the driver in writing.'

POFA 2012 Schedule 4

9 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must—

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i) to pay the unpaid parking charges; or

(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

Assessor  allowed the appeal on the rebuttal...... 

Umkomaas

Have POPLA got a bit of a downer on ECP, because they've found against them on what might have been regarded as 'minor' and I'm sure I've seen ignored with other PPCs, viz, the lack of visibility of the £100 charge, and now in this case the omission of 'passing the notice to the driver'. Long may it continue! 😄

Well done by the way @bergkamp.

bergkamp

Umkomaas said:

Have POPLA got a bit of a downer on ECP, because they've found against them on what might have been regarded as 'minor' and I'm sure I've seen ignored with other PPCs, viz, the lack of visibility of the £100 charge, and now in this case the omission of 'passing the notice to the driver'. Long may it continue! 😄

Well done by the way @bergkamp.

I have another ECP  appeal currently being assessed at POPLA ,different location, same appeal points, so we will see...  

Coupon-mad

I just added to the 'NTK pictures' thread, a new ECP NTK with subtle differences in the wording which now make it POFA compliant.