POPLA Decisions

bergkamp

Coupon-mad said:

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

Maybe not though. I have added a comment on that thread re ' WARN and ADVISED'  on the NTK.

ParkingBabe

Site: Fistral Beach Car Park

Link to original thread: https://forums.moneysavingexpert.com/discussion/6471826/parking-fine-appeal-help-please-fistral-beach-initial-parking/p1

Parking Operator: InitialParking

Reason of Successful Appeal: Initial Parking do not have up to date landowner authority at Fistral Beach.

Decision: Successful

Assessor summary of operator case

The parking operator issued the Parking Charge Notice (PCN) for having an unpaid tariff time.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal • The operator has not offered a grace period in line with the British Parking Association (BPA Code of Practice. • They required time to look for a parking space, time taken to attempt to pay for parking using their mobile as well as time to leave the car park. • There are no clear, legible or prominent signage within the car park and the signs on site are not legible from all parking spaces. • There is no evidence of landowner authority and the operator it put to strict proof to show full compliance with the BPA Code of Practice. • The operator fails to comply with the requirements of the Companies Act 2006 section 44. • The operator fail to comply with the data protection 'ICO Code of Practice' applicable to ANPR. • There is no evidence of the period that the vehicle was parked on site. • The Notice to Keeper does not meet the requirements of the Protection of Freedoms Act (PoFA) 2012. • They are the registered keeper of the vehicle and are not liable for the PCN issued. After reviewing the operator’s evidence, the appellant expands on their grounds of appeal in regards to issues with the signage on site, issues with the contract between the landowner and the operator, issues with the ANPR cameras and issues with the JustPark mobile payment app. The appellant has provided the following as evidence to support their appeal: • An image from google maps showing an ariel view of the beach and car park • Two images from a newspaper article showing the beach and how it was busy • An image from google maps showing the car park in question • An image they say shows the lack of signs on site in comparisons to where they parked • An image of a sign on site • Two images showing the payment being made on JustPark • An image showing the payment made for parking • An image showing information regarding the judgement from Lord Justice Newey in NCP v HMRC. The above evidence will be considered in making my determination.

Assessor supporting rational for decision

I am allowing this appeal, with my reasoning outlined below: The appellant has raised several grounds for appeal. However, my findings will focus on the Landowner Authority ground of appeal has persuaded me to allow the appeal. Within their grounds of appeal and within their comments, the appellant has questioned if the operator has authority to issue PCNs. The have questioned how the contract shows no expiry date and how the hours of operation on the contract is different to the hours of operation on the signs on site. They have said that this confirms that the contract is either incorrect, the signage is incorrect and that the operator is not following the terms of the contract. The British Parking Association has a Code of Practice which set the standards its parking operators need to comply with. 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. Section 7.3 of the BPA Code of Practice outlines that 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. who has the responsibility for putting up and maintaining signs. E: the definition of the services provided by each party to the agreement. I can see that the operator has provided a copy of the their ‘contract for parking enforcement’ that has been signed by themselves and the landowner in January 2019. This confirmed that the hours of operation are between 08:00 and 18:30. The operator has provided images of the signs on site that are dated September 2022, which confirm the hours of which the tariffs apply are from 08:00 until Midnight. It is clear to see that the terms and conditions of parking have changed since the contract has been agreed with the landowner, due to there being a difference in the operating hours. Therefore, after reviewing the evidence provided by the parking operator, it is clear that the landowner contract does not demonstrate that the operator has the rights to manage the site in question, in the way that they operator are managing it. In this case, the operator has not rebutted the appellants grounds and I cannot determine if the PCN has been issued correctly. As such, I am allowing the appeal. The appellant has raised other grounds in their appeal, but as I am allowing the appeal, it is not necessary for me to address these.

Bobthethird

Successful appeal against UKPC for "driver left site"

I successfully appealed a PCN Issued at stevenage leisure park for UKPC's claim "driver left site" after going through the steps on this forum then appealing to POPLA UKPC withdrew the fine. I would encourage anyone with a driver left site charge to challenge it as it would appear the chances of success are very high (from what I've seen) as they never have any evidence to back it up nor does the signage provide sufficient information for it to be enforceable

Edd12

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?

You will get bombarded with letters all saying "it's your last chance!!! Be careful otherwise lawyers will get in involved !!" I've now started being spammed with emails from their 'escalations department' by the company they've outsourced to collect. Just wish they'd take me to court already - can't believe they can hold this over you for 6 years.

Coupon-mad

Edd12 said:

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?

You will get bombarded with letters all saying "it's your last chance!!! Be careful otherwise lawyers will get in involved !!" I've now started being spammed with emails from their 'escalations department' by the company they've outsourced to collect. Just wish they'd take me to court already - can't believe they can hold this over you for 6 years.

We agree: please tell that to this Committee:

https://committees.parliament.uk/committee/102/justice-committee/news/198166/new-inquiry-justice-committee-launches-new-inquiry-on-the-work-of-the-county-court-amid-capacity-and-resource-concerns/

Inquiry here. Closes in a fortnight!
https://committees.parliament.uk/work/7972/work-of-the-county-court/

Please do answer it attaching your threatograms and telling the Committee that parking firms need controlling by a new 'parking pre-action protocol' and an ADR, to stop them stringing cases out with threats then cashing in with CCJs years later, due to not bothering to check for new addresses.

Parking Cases should be kept out of court. Needs an ADR to resolve them fairly.

Needs its own pre-action protocol.

And six years is too long.

SAY THAT. Pleeease! 

You don't have to answer all the questions.  Some are not relevant to a person submitting evidence of pre-action aggressive letters only.

Rob_Bee

Edd12 said:

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?

You will get bombarded with letters all saying "it's your last chance!!! Be careful otherwise lawyers will get in involved !!" I've now started being spammed with emails from their 'escalations department' by the company they've outsourced to collect. Just wish they'd take me to court already - can't believe they can hold this over you for 6 years.

Something to look forward to! The more successful POPLA cases I read, the less I understand why mine was turned down.

Rob_Bee

Please do answer it attaching your threatograms and telling the Committee that parking firms need controlling by a new 'parking pre-action protocol' and an ADR, to stop them stringing cases out with threats then cashing in with CCJs years later, due to not bothering to check for new addresses.

Parking Cases should be kept out of court. Needs an ADR to resolve them fairly.

Needs its own pre-action protocol.

And six years is too long.

SAY THAT. Pleeease! 

You don't have to answer all the questions.  Some are not relevant to a person submitting evidence of pre-action aggressive letters only.

Done.       

Pcngone

POPLA assessment and decision

04/12/2023

Verification Code

8452793013

Decision

Unsuccessful

Assessor Name

Rebecca Appleton

Assessor summary of operator case

The parking operator has issued the parking charge notice due to unauthorised parking.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. 

• Consideration and Grace Period: BPA Code of Practice–non-compliance 

• There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location nor boundary of the venue.

 • Non-compliance with POFA 2012 Schedule 4 paragraph 9(2)e 

• No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice • The ANPR System is Neither Reliable nor Accurate

 • No signs to Transparently Warn Drivers of what the ANPR Data will be used. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal and expands on their grounds of appeal. The appellant has provided 1. Appeal document. The above evidence has been considered in making my determination.

Assessor supporting rational for decision

The appellant is appealing as the registered keeper of the vehicle and the driver has not been identified. If the driver has not been identified the keeper can be held liable, providing the requirements of Schedule 4 of The Protection of Freedoms Act 2012 (POFA) have been met. The operator has provided a copy of the PCN in its evidence pack. I have reviewed the PCN and I am satisfied that it does meet the requirements of POFA and therefore the appellant, as the keeper of the vehicle is liable.

 When assessing an appeal POPLA considers if the 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 British Parking Association Code of Practice sets the standards by which its members must abide by. Section 7.1 of the code confirms that if an operator does not own the land on which it is carrying out parking management, it must have the written authorisation of the landowner or their appointed agent. This must confirm the operator has the authority to carry out all the aspects of car park management for the site that it is responsible for. In particular, it must say that the landowner or agent requires the operator to keep to the Code of Practice, the details of the land and that it has the authority to pursue outstanding parking charges. In response to this ground of appeal, the operator has provided a copy of the contract, and on reviewing this, I am satisfied that the operator has sufficient authority to pursue charges on the land.

 The British Parking Association (BPA) Code of Practice, paragraph 19.3 states: “signage tells drivers what your terms and conditions are, including the parking charges. You must place signage 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.” Paragraph 19.3 also explains that signs “must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand.” Section 19.2 of the BPA code of practice states: “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use” Having reviewed appendix B also, this refers to entrance signs and when there may be impractical reasons to display them, such as, when the car park is very small. Having reviewed the signage within the case file, I am satisfied that the signs have met the requirements of section 19.2. this is because the operator has shown that there is an entrance sign displayed on the entrance of the car park, which the driver had the opportunity to see on entry to the car park. This sign advised them to read the further terms and conditions within the car park. Therefore, it was down to the appellant to read the further terms and conditions within the car park itself. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site, I am satisfied that the driver was afforded this opportunity.

 In regards to the consideration period and grace period. The British Parking Association (BPA) Code of Practice, paragraph 13.4 states: “13.4 Unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for specific users e.g Blue Badge holders, pick up/drop off or where parking is prohibited such as hatched areas in front of emergency exits, or on entry and exit ramps etc” As such in this case there is no parking allowed, therefore the driver was not entitled to either a grace or a consideration period. 

Section 22.1 of the BPA code of practice states “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent, and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for” In this case the operator has provided photos of the signs, the information on the bottom clearly outlines the use of ANPR and how/why this will be used. As such I am satisfied the operators signage complied with section 22.1 of the BPA code of practice. The site in questions operates Automatic Number Plate Recognition (ANPR) cameras. ANPR cameras capture vehicles entering and exiting the car park to calculate the time a vehicle has remained onsite. Studies have shown ANPR technology to be generally dependable. POPLA will occasionally receive appeals from motorists who claim there has been a fault with the ANPR. When considering these appeals, POPLA must first consider if there is sufficient evidence to cast doubt on the accuracy of the ANPR system. The evidence can be provided from both the appellant and the operator. The operator provides evidence of the images, supporting its version of events. The appellant would then provide evidence or a version of events casting doubt on the validity of the ANPR technology. Our role is to then judge if the evidence is adequate enough to show the technology was not working on the date in question. In this case, whilst I recognise the appellant’s evidence, they have not provided enough sufficient evidence or an adequate explanation as to why they feel the cameras are not reliable in this specific case. I am therefore satisfied the evidence provided by the operator is sufficient and the ANPR is reliable. Although I note that the appellant has commented on how the operator has handled their initial appeal; when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. As this issue holds no impact on the appellant’s ability to comply with the terms on the date of the parking event, I cannot consider it relevant to the assessment. Should the appellant wish to pursue any dispute regarding this matter, they would need to contact the operator directly.

 When assessing an appeal POPLA considers if the 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 vehicle in this case entered the site parked in a no parking area and as such a PCN was issued. Our role is to determine if the terms of the site have been complied with, as such I conclude the terms of the site were breached and a PCN was issued. I note the appellant makes mention of the inconsistencies regarding calling the site a car park. however this would not make a difference as to whether the driver complied with the terms of the site on the date in question. As such if the appellant would like to raise this further they would need to raise a complaint with the operator directly.

 The matter of parking charges was considered in the Supreme Court (ParkingEye vs Beavis 2015). The judgement ruled that parking operators can issue PCNs to motorists who breach the terms as long the signage is clear on the charges and the charge is in the region of £85. In this case, the charge is appropriately prominent and in the region of £85 and is therefore allowable. If the appellant wishes to read more about this case, it can be found here ParkingEye Limited (Respondent) v Beavis (Appellant) - The Supreme Court Having review both the appellants grounds of appeal and the comments raised, I conclude that the terms and conditions of the car park have not been met and the operator has issued the PCN correctly, as such the appeal is refused.

Fruitcake

Pcngone,  Please tell us the name of the PPC and a link to your original thread. I know that's how you received the PoPLA decision, but all I see is an unreadable wall of text, so please will you repost it with some paragraph breaks.

I assume though you know the decision is not binding on the motorist and therefore there is no requirement to pay th charge.

Pcngone

Fruitcake said:

Pcngone,  Please tell us the name of the PPC and a link to your original thread. I know that's how you received the PoPLA decision, but all I see is an unreadable wall of text, so please will you repost it with some paragraph breaks.

I assume though you know the decision is not binding on the motorist and therefore there is no requirement to pay th charge.

The original thread can be found here
https://forums.moneysavingexpert.com/discussion/6474956/help-private-parking-ticket#latest

This PPC is called secure parking solutions