POPLA Decisions

hirersezn

Operator: Euro Car Parks

Decision

Successful

Assessor Name

Robert Andrews

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to the vehicle being parked for longer than the maximum period allowed.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: • They were the hirer of the vehicle. • The parking operator has failed to deliver a Notice to Hirer that is fully compliant with the Protection of Freedoms Act (PoFA) 2012. They refer to paragraphs 13 and 14 of PoFA in this regard and note that the PCN must be delivered within a relevant period and the parking operator must be provided with a copy of documents mentioned here. • The parking operator has not shown that they are pursuing the driver for the PCN. As they cannot rely on PoFA to hold the hirer liable, they must hold the driver liable. They also do not have to name the driver and there is no presumption that the hirer or keeper was the driver at the time. • There is no evidence of landowner authority and the operator has been put to strict proof regarding this and it cannot be assumed that because they have some signs, they can issue PCNs on this land. They refer to section 7 of the British Parking Association (BPA) Code of Practice. • There is insufficient and unclear signage. They refer to the ParkingEye v Beavis case and how the PCN amount was the largest part of the sign. • They state the PCN does not show where the vehicle was parked. After reviewing the parking operator’s evidence, the appellant expands their grounds of appeal in relation to: • The parking operator did not provide them with the hire documents included within the case file. • There is no evidence that the landowner contract was renewed. • The font on the signage is so small that is cannot be read from even a close distance. 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: Firstly, I note that the appellant has raised multiple appeals with POPLA. I must advise that POPLA assess all appeals on an impartial case by case basis and as such each PCN must be appealed by the motorist separately. In this instance I am only assessing the appeal for POPLA code: ooooooo which was issued to PCN number ooooooo. Within their appeal to both POPLA and the parking operator, the driver’s details have not been provided. PoFA 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. PoFA lets parking operators transfer liability for a parking charge from the unknown driver of a vehicle to the hirer of the vehicle if certain rules are followed. The rules say an operator must obtain specific documents from the hire company and send those documents to the hirer, but there is no evidence that the required documents were sent to the appellant. I acknowledge the parking operator has referred to the Memorandum of Understanding however, as it is a requirement of PoFA that the documents be sent to the appellant, this is not sufficient to show they have complied with PoFA. 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.

Umkomaas

@hirersezn - so any future reader has some context, could you please share the name of the parking operator?

Bullen90

Operator name: Civil Enforcement Ltd

Decision

Unsuccessful

Assessor Name

Jason Cookson-Dean

Assessor summary of operator case

The parking operator has issued a parking charge notice as payment not made in accordance with notified terms.

Assessor summary of your case

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

• A grace period has not been applied which is not complaint with the British Parking Association (BPA) code of practice.

• The entrance signs are not sufficiently visible upon entry and signs in this car park are not prominent, clear or legible from all parking spaces. There is also significant confusion with signage from a directly adjacent neighbouring car park.

• There is no Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

• Failure to comply with the data protection 'ICO Code of Practice' applicable to Automatic Number Plate Recognition (ANPR), (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

• The notice to keeper does not meet the Protection of Freedoms Act 2012 (PoFA). • The ANPR system is neither reliable nor accurate.

• The signs fail to warn drivers of what the ANPR data will be used for.

• No planning permission from Nottingham, City Council for pole mounted ANPR cameras and no advertising consent for signs. After reviewing the parking operator’s evidence, the appellant reiterates their grounds of appeal and raises new grounds of appeal regarding Vine V London Borough of Waltham Forest and the Beavis case.

Assessor supporting rational for decision

The appellant has identified as the keeper of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the keeper. For an operator to transfer liability of unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. Having viewed the notice to keeper issued to the appellant I am satisfied that the operator has complied with Schedule 4 paragraph 9 of PoFA 2012, and that liability of the parking charge was successfully transferred to the keeper at the time of the event.

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 appellant advises a grace period has not been applied which is not complaint with the BPA code of practice. The BPA monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet and comply with. In its Code of Practice section 13.3 it states: “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.” As the appellant has not paid within 10 minutes of arriving at the car park a grace period would not be taken into consideration as the terms and conditions have not been met.

The appellant advises the entrance signs are not sufficiently visible upon entry and signs in this car park are not prominent, clear or legible from all parking spaces. There is also significant confusion with signage from a directly adjacent neighboring car park. In its Code of Practice section 19.2 it 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.” In its Code of Practice section 19.3 it states: "Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place 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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand." The parking operator has provided photos of the entrance signs and the signs at the car park which state that payment must be made within 10 minutes of arrival. The signs also say that a PCN of £100 will be issued for not complying. It is the responsibility of the motorist when entering a car park that they make themselves aware of the signs and what the restrictions are. It is of my opinion that the signs are clear and legible to all motorists when entering the car park. I am satisfied from the photos of the signs in place at the car park that the parking operator has provided that it has complied with section 19.2 and 19.3 of the code.

The appellant advises there is no Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. The code of practice section 7.1 states: “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 operator has provided evidence of a witness statement for landowner authority dated 19 January 2023, therefore I am satisfied that the operator does have landowner authority.

The appellant says there is a failure to comply with the data protection 'ICO Code of Practice' applicable to Automatic Number Plate Recognition (ANPR), (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach. Section 22.1 of the BPA 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:” The parking operator has provided photographic evidence of the signs in place in the car park, which has the information regarding ANPR and what the data will be used for. The signage states: “ANPR and/or CCTV, and manual patrols and may contact the DVLA to requests the registered keeper’s details in order to send a Parking Charge Notice (PCN).” and goes on to state what the information will be used for. I am satisfied that the operator has met this condition. The sign also advises of the data protection information, it states: “Data protection information is displayed at the entrance to this car park. View our full privacy policy at www.ce-service.co.uk/privacypolicy or email dataprotectionofficer@ce-service.co.uk” I am satisfied that the parking operator has complied with section 22.1, and also provided information regarding data protection.

The appellant says the notice to keeper does not meet the Protection of Freedoms Act 2012 (PoFA). I have discussed this at the top of my assessment and am satisfied that the PCN does comply with PoFA. The appellant advises that the ANPR system is neither reliable or accurate. The site in question is operated by Automatic Number Plate Recognition (ANPR) technology. 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, which is why it is important that motorists enter their full, correct registration so this can be calibrated to the images of their vehicle obtained from the ANPR cameras to determine whether the vehicle did in fact pay for adequate or inadequate time. Independent research has found that ANPR technology is generally reliable. I appreciate that 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 registration ***** entering site at 11:04 and vacating at 12:29. 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 during the times stated. As the appellant has not provided any evidence to the contrary, I will work on the basis that the information is accurate. The appellant states that the signs fail to warn drivers of what the ANPR data will be used for. This has been discussed above and the details of what the sign state listed.

The appellant advises there is no planning permission from Nottingham, City Council for pole mounted ANPR cameras and no advertising consent for signs. When looking at appeals, POPLA considers whether a parking contract was formed between the motorist and the parking operator 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 relevant planning authority directly. In relation to the new grounds of appeal raised, the motorists’ comments section is where you can expand on the original grounds of appeal in rebuttal to what the parking operator has provided, it is not an opportunity to offer new grounds that the parking operator has not had the opportunity to review. As such I cannot consider these as part of the decision.

After considering the evidence from both parties, the appellant has not paid within 10 minutes of arriving at the car park and therefore 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.

Thread link: https://forums.moneysavingexpert.com/discussion/6522697/cel-evidence-rebuttal-comments-popla-appeal-breastfeeding-mother-not-paying-within-10-minutes

Fruitcake

@Bullen90 the assessor has failed to consider para 12 of the PoFA with regards to lack of advertising consent. I doubt it will do any good, but you could complain to the lead adjudicator about this failure.

12(1)The fourth condition is that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate.

(2)The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land.

The operator failed para 12 (1) because the applicable requirements (advertising consent being a regulation made by statutory instrument) were not met at the beginning of the parking period.

hirersezn

Umkomaas said:

@hirersezn - so any future reader has some context, could you please share the name of the parking operator?

I have edited my comment. Thank you 

moneylion

Operator name: Civil Enforcement Ltd

Decision Successful

Assessor Name Gemma West

Assessor summary of operator case

The parking operator has issued a parking charge notice due to exceeding the notified maximum free parking period of 1 hour.

Assessor summary of your case

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

• There is no evidence of landowner authority, and the parking operator is put to strict proof of full compliance with the British Parking Association (BPA) Code of Practice. 

• The signs in the car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge. 

• Non-compliance with grace periods. After reviewing the parking operator’s evidence, the appellant expands on their grounds of appeal. The appellant has provided an image of the area as evidence to support their appeal. The above evidence will be considered in making my decision.

Assessor supporting rational for decision

I find in favour of the appellant and allow this appeal, below I will explain my reasoning. It is a parking operator’s responsibility to demonstrate to POPLA that it has issued a parking charge notice correctly and that the parking charge is therefore owed. In this case, the parking operator has issued the parking charge due to exceeding the 1-hour maximum stay by 17 minutes. Upon review of the evidence provided by the parking operator no evidence of the automatic number plate recognition (ANPR) cameras images has been provided which shows the vehicle exceeded the maximum stay. Whilst I acknowledge the parking operator has stated the timings on the parking charge, I would expect images to demonstrate the vehicle had exceeded the maximum stay. As such, I am not satisfied the PCN was issued correctly. I must allow the appeal. I note the appellant has raised additional grounds of appeal; however as I have allowed the appeal on the above basis, I do not need to consider them.

thank you Umkomaas and others for your help along the way. I did not have a topic and followed the guidance to draft my appeal and was successful. The annoying thing is the business owner sees this as a good way to make money rather than concentrate on their core business - groceries. 

Just so Google picks it up as tonnes of people are getting ticketed and needless paying it, the name is VB and Sons, Kenton Road, Harrow - absolutely disgraceful behaviour. They are ticketing on council owned land. The PCNs have no images or timestamps. 

There was some absolutely sterling work done by Mouse007 in working out that they are ticketing on Council land! I followed this to guide me how to appeal

https://forums.moneysavingexpert.com/discussion/6416175/private-pcn-on-street-advice-needed-for-grounds-of-appeal

Coupon-mad

     Wow, rank amateurs, CEL:  

"Upon review of the evidence provided by the parking operator no evidence of the automatic number plate recognition (ANPR) cameras images has been provided which shows the vehicle exceeded the maximum stay."

alicealice

A great result regarding my appeal against MET Parking in McDonalds, Canning Town - they dropped the charge.

Here's my thread and draft POPLA appeal letter for reference https://forums.moneysavingexpert.com/discussion/6535340

POPLA response:

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

This forum is incredible. Thank you!

hirersezn

Operator: ParkingEye

Decision

Successful

Assessor Name

Michael Pirks

Assessor summary of operator case

The parking operator has issued the parking charge notice (PCN) due to not purchasing the appropriate parking time. 

Assessor summary of your case

The appellant has raised the following grounds of appeal in detail: • The parking operator has failed to deliver a Notice to Hirer that was fully compliant with the requirements of PoFA 2012. • The parking operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. • There is no evidence of landowner authority. • There is insufficient and unclear signage in the area where the vehicle was parked. • There is no evidence of period parked. In their comments to the parking operator’s evidence, the appellant has expanded on their grounds of appeal in extensive detail, stating that the parking operator has not provided the relevant documentation to make them liable as the hirer, there is no copy of an unredacted agreement between the parking operator and the landowner ant the witness statement does not provide proof that the landowner has seen the agreement. The appellant has also provided further comments stating that the signage images are close up and cannot be read from a distance. The appellant expands on this ground saying that the signs are not clear and conspicuous. The appellant has provided the following evidence to support their appeal: • A word document outlining the grounds of appeal in extensive detail. 

Assessor supporting rational for decision

When looking at appeals, POPLA considers whether a parking contract was offered and properly formed and whether the motorist kept to the conditions of the contract. 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. In this case, it is not clear who the driver is and therefore, I must consider whether the parking operator has complied with the requirements of PoFA when it comes to transferring hirer liability to the appellant. As the operator are chasing the appellant as the hirer they will need to comply with Section 13 of PoFA 2012 which states, “A notice to hirer can be issued; If within 29 days of the date of the notice to keeper (starting 2 working days after the date on the notice to keeper, if sent by post) the vehicle hire company provides the operator with • a statement signed by a representative of the vehicle hire company stating that the vehicle was hired out at the time • a copy of the hire agreement • a copy of a statement of liability signed by the person who hired the vehicle stating that the hirer will be responsible for any parking charges incurred while it is hired (it doesn’t matter if it refers to any other charges, it must refer to parking charges) In this case, I can see that the parking operator has provided a copy of the hire agreement however, within this agreement there is no mention to state that the hirer will be responsible for parking charges. As per PoFA 2012, the statement of liability must specifically mention parking charges, which the hirer document provided does not specifically mention parking charges. As such, I am not satisfied that the parking operator’s evidence demonstrates that it has transferred liability onto the driver and therefore, the appellant cannot be held liable. 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.

ugwaraich

Operator: Civil Enforcement Limited

Parking Location : Wycombe Rye Lido Parking, High Wycombe

POPLA Appeal: Successful

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) for payment not being made in accordance with the notified terms.

Assessor summary of your case

The appellant has raised detailed grounds of appeal which I have summarised below.

• The alleged contravention did not occur. The signage stated it was £0.50 for 2 hours parking, this is what the driver paid, and they did not exceed the time paid for.

• The NTK was not delivered in time as per PoFA 2012. The issue date on the PCN is 10 April 2024, and this is the 11th day after the alleged contravention. The NTK was delivered on 15 April 2024, which it the 16th day.

• The signage on site was not adequate and did not comply with Sections 19.2 and 19.3 of the BPA Code of Practice. There was no entrance sign at the road used to access the car park. This meant it took time to locate signage, read the terms in an overcast cloudy, dark, and rainy weather, and decipher the confusing information.

• You cannot read the information on the entrance sign while driving, the signage is high up on a pole and the font size too small. It is not lit and too high to be illuminated by car headlights. The terms and conditions are not displayed at the entrance.

• The amount of the charge is in small print on the signs.

• The operator did not comply with a grace period as per the BPA Code of Practice and referenced Section 13.1 and 13.3. They have these sections do not apply in this case, but a contract was never entered. The grace periods are not mentioned on the signage, and so it was not clear what grace periods were applicable on site.

• They believe the grace periods to be longer than the bare minimum set out in the BPA Code of Practice.

• The parking bays are not clearly marked, causing confusion to the applicability of the contract that was never entered into in the first place.

• The boundary is not clearly marked.

• The payment app was not working.

• Their son was hurt in the park, and this delayed them, and this was out of their control.

• The duration of the visit was not unreasonable.

• There is no evidence of landowner authority, and they have detailed what information a landowner authority contract should contain. They have said witness statements are not sound evidence.

• The vehicle images on the PCN do not comply with the BPA Code of Practice. They have referred to Section 21.5a of the BPA Code of Practice. The time and date stamp and license plate have been provided in a separate section and are not part of the photographs on the PCN, therefore these images cannot be used as confirmation of the incident.

• There is no planning permission from Wycombe District Council for pole mounted ANPR cameras and no advertising consent for signage.

• The ANPR cameras may not be accurate. This process may be biased to suit the operator’s financial objective.

• The PCN is unfair and unacceptable.

The appellant has provided images of the site, including the entrance, and signage, including an entrance sign, a copy of the payment receipt for a payment made to Wycombe Rye Lido, using Phone and Pay and location code 4672, a map showing the entrance and exit to the site and location of the ANPR camera, and images of the vehicle from the PCN. This has been considered in my determination.

After reviewing the operator’s evidence, the appellant has reiterated their case. They have said the operator’s response is erroneous and inaccurate, and they have not responded to certain points.

The appellant has said the operator has provided an incorrect site plan that cannot be relied upon. They have said the entrance sign does not state terms and conditions apply as required. The operator is incorrect to say, without evidence that the entrance sign is clearly legible from the entrance whilst driving the vehicle from 10 meters.

They have said the Parking Eye vs Beavis appeal is a different case, therefore the overstay argument by the operator is inconsistent and misconstrued. It would therefore be erroneous to conclude that the sum claimed must be a genuine pre-estimation of loss.

They have said the operator has not provided proof the NTK was posted the same day it was issued, nor that it was delivered within the 14 days required.

The statement that the parking time was exceeded is false and incorrect. Time and date stamps have not been included on the vehicle images.

The driver did not leave the car park before paying, this is a false allegation by the operator. CCTV was in operation, and they would like to see evidence of them leaving before paying.

It is the operator’s responsibility to ensure that the app is streamlined with the terms applicable at the parking site. There was a glitch with the app that the driver was not aware of at the time. Had the payment been less than £0.50 there were reasonable grounds to claim that driver had paid for less than 2 hours and therefore was aware they needed to cover the full duration of stay or left within 67 minutes. The payment app automatically changes the “Parking End Time” to up to 2 hours if the user of the app manually enters a time within 30 minutes of the “Parking Start Time”. However if the user manually enters a “Parking End Time” to anytime over 30 minutes from the “Parking Start Time” the app does not change the duration to 2 hours instead it keeps the same “Parking End Time” as manually selected by the user. This is a clear anomaly in the app that may have led to a parking end time being entered shorter than 2 hours.

The appellant has said the landowner authorisation evidence is not an un-redacted copy of the full contract. This does not prove a contract has been established nor does it state the duration or the expiration/end date of the contract.

They have said the operator has said they do not have access to CCTV footage but there is a sign above the entrance sign stating CCTV is in operation. The operator has not provided evidence the ANPR cameras are regularly certified to confirm that the date and time stamps taken are accurate.

The appellant has provided a video showing the payment process on the app.

They have provided an image of the site and the operator’s site map indicating the location of bays that are not on the operator’s site map, there is no signage where the site map says there is, and the entrance sign. The appellant has provided an image of a entrance sign from Appendix B of the BPA Code of Practice, which states it should always be mentioned that terms and conditions apply, and a photograph of the entrance sign on site that states, “See car park signs for terms & conditions”, and they have said the data protection information is not legible from the entrance.

They have provided an image of a sign from the operator’s case file and say this is incorrect as no such signage with the same layout is on site. This has been considered in my determination.

Assessor supporting rational for decision

I am allowing this appeal, with my reasoning outlined below:

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 Parking Charge Notice (PCN) correctly.

This PCN has been issued for payment not being made in accordance with the notified terms. The parking operator has provided details from its system to show the appellants vehicle was on site for 1 hours and 41 minutes and the driver paid for a 67-minute stay. The appellant has said the driver paid £0.50 for an up to 2 hours stay and they did not exceed this. In this case, the driver entered the site at 14:50 and made a payment at 15:16. When parking on private land, the parking contract is between the motorist and the operator through the terms on its signs.

The signage evidence the operator has provided does not state payment needs to be made on arrival or within a certain time.

The appellant has provided a copy of a receipt showing £0.50 was paid and I appreciate this shows the payment made at 15:16 expired 57 minutes later at 16:13. However, the lowest tariff available on this site is up to 2 hours for £0.50, and the parking operator has accepted the payment made. As this has been accepted it must have been at least a £0.50 payment. The parking operator has not explained why this payment only authorised the driver to park on site for 67 minutes.

The signage does not show charges only apply at certain times to explain this either. The driver also did not pay after they left the site.

Within the operator’s payment log record, there does seem to be a discrepancy with payments made using the machine and Phone and Pay, with payments being made using Phone and Pay for parking sessions that are less than 2 hours, when there isn’t a tariff lower than this on site.

As the operator accepted the driver’s payment, and the lowest tariff available on site is up to 2 hours, I am satisfied the evidence shows the driver was authorised to park on site for up to 2 hours, and they did not exceed this time.

In this instance, I am not satisfied that the operator has adequately rebutted the appellant’s grounds for appeal. I can only conclude that the PCN was issued incorrectly.

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. Accordingly, I allow this appeal.