POPLA Decisions

Fruitcake

This is the thread related to @ugwaraich's PoPLA decision above, and a most excellent decision it is.

Unfair CEL PCN? — MoneySavingExpert Forum

It warrants a complaint to the landowner and the BPA and the DVLA and ugwaraich's new MP, as well as complaints to the local council planning department about the lack of planning permission and lack of advertising consent, the latter being a criminal offence.

In the MP complaint, they should be asked to warn the MP where the alleged event occurred about problems that are occurring there.

Coupon-mad

Fruitcake said:

This is the thread related to @ugwaraich's PoPLA decision above, and a most excellent decision it is.

Unfair CEL PCN? — MoneySavingExpert Forum

It warrants a complaint to the landowner and the BPA and the DVLA and ugwaraich's new MP, as well as complaints to the local council planning department about the lack of planning permission and lack of advertising consent, the latter being a criminal offence.

In the MP complaint, they should be asked to warn the MP where the alleged event occurred about problems that are occurring there.

Agreed. This must be happening to many local victims.

This was a good POPLA Assessor, diligent stuff:

"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."

EagleEye19902488

any help or insight on the below please. It seems they have ignored many of my points and case law cited and after reading others i can see appeals have been allowed on demonstrating actual loss however i was again quoted beavis by the assessor

Unsuccessful

Assessor Name

Taylor-Jade Ryan

Assessor summary of operator case

The parking operator has issued the parking charge notice (PCN) due to failing to park fully within a marked bay.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. • They suffer from panic attacks and was having one at the time in question • A vehicle to the left at the time forced them to park outside of their bay • A vehicle was still able to park to the right of them • No financial loss was suffered and the appellant quotes Vehicle Control Services Ltd vs Mrs R Ibbotson • The charge is unlawful, levied punitive and is unenforceable against them in line with the Unfair Terms in Consumer Contracts Regulations 1999 • No VAT is itemised on the PCN and so it must be concluded that the charges are damages or penalties • No evidence that they are authorised to act on the land • Signage is not compliant with the British Parking Association (BPA)’s Code of Practice • The operator has failed to comply with 22.2 of the Code • No contract was entered into • Their vehicle was damaged by the sticky residue left by the PCN • The appellant raises several court cases After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal, expanding on certain areas of their original grounds. The appellant has provided 1. An image of their vehicle parked 2. An image of the machines 3. 2 x close up image of their windscreen 4. 2 x images of the entrance of the car park The above evidence has been considered in making my determination.

Assessor supporting rational for decision

I note the appellant has raised in both appeals to POPLA and the parking operator that they suffer with panic attacks. I empathise with the appellant regarding these attacks they are experiencing. 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 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. On review of the image evidence provided by both the operator and the appellant it is clear that there is signage at the entrance of the car park, and throughout the site itself which advise drivers of the terms and conditions of the car park. An entrance sign is only present to warn motorists that they are entering private land, there is no requirement for a driver to try and read a sign as they are actively driving into the car park. However, the onus does lie with the driver to ensure that they read and understand the terms and conditions before they leave the vehicle parked within the car park. 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. In this case, the appellant left their vehicle within the confines of the car park and by doing so, they accepted and entered into the contract offered by the parking operator and were therefore liable for receiving a PCN in the event a breach was identified. The appellant raises section 22.2 of the BPA Code, and that the operator has not proven the checks completed. However, this section of the Code relates to ANPR images and cameras which this car park does not operate. In this case, a driver is required to pay for their parking, and park wholly within an authorised bay. The operator has provided images of the appellants vehicle, which clearly shows it parked over 2 bays, which is a breach of the terms and conditions listed on the signs. I appreciate that there may have been another vehicle present when they parked which meant this was the only way to park in this bay, but that did not mean they could park in such a way without consequence. If the appellant was unable to park fully within the confines of this bay due to how other motorists were parked, they had the option to locate an alternative parking bay. I appreciate another vehicle was still able to park next to them, but this makes no material difference to the charge issued. 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 witness statement which confirms that the landowner is permitted to act on the land, and this authorisation was in place at the time of the alleged parking event. I appreciate the appellant has made comments on the document itself, however these comments to not effect the validity of the PCN issued and so I have not considered them further. There is no requirement for the operator to display VAT on the PCN’s. There have been discussions had with HMRC. The BPA has published this on its website where it has been agreed with HMRC that operators are able to issue PCN’s outside the scope of VAT. As this is a third-party concern, any further questions or queries surrounding this subject will need to be addressed with the parking operator, HMRC and the BPA. The appellant has told us in their response that they consider the charge is unfair contrary to the Unfair Terms in Consumer Contract Regulations 1999. The fairness of parking charges was considered more broadly by the Supreme Court in the case of Parking Eye v Beavis. The Court recognised that parking charges have all the characteristics of a contractual penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists. Whilst this specific case does not relate to an overstaying motorist, the court case also 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. After reviewing the signage provided by the operator, I am satisfied that the charge is appropriately prominent and in the region of £85 and is therefore not unfair. I also acknowledge the appellant states the charge is not a genuine pre-estimate of loss, but this has no bearing on my decision. As explained above the Supreme Court considered private parking charges in Parking Eye v Beavis and decided that a charge did not need to reflect any actual loss incurred by a parking operator or landowner. The Court’s full judgement in the case is available online should the appellant want to read it. I understand the appellant has raised concerns over damage to their vehicle from the PCN issued to it. I must advise that my role is to determine if a PCN has been issued correctly in line with the terms and conditions of the car park. It is not for me to comment on potential damages that have occurred during the parking process. Any further conversations will need to be had with the parking operator directly. I note the appellant has raised several different court cases throughout their appeal to POPLA, however none of these court cases bare any relevant to the charge in question or why it has been issued, and so I will not discuss them further. Ultimately, the vehicle was parked across 2 parking bays, which was a breach of the terms and conditions of parking. Therefore, at the point the vehicle was observed parked in such a way, the operator was correct to issue a PCN to them. POPLA’s role is to assess if the operator has issued the charge in accordance with the conditions of the contract. As the terms and conditions of the car park have not been met, I conclude that the operator has issued the parking charge correctly, and the appeal is refused.

DE_612183

advice is to move onto the next stage as per the newbees thread - POPLA is not the end of the line, and a loss should be expected.

Zbubuman

MET Parking Services - Location Krispy Kreme in New Malden

Decision

Successful

Assessor Name

Rebecca Appleton

Assessor summary of operator case

The parking operator has issued the parking charge notice (PCN) due to parking longer than allowed.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. •They are the registered the keeper of the vehicle. •The notice to keeper is non-PoFA compliant. •The operator is not the landowner, they have no contract or standing to issue charges in their own name. •The signs on site are inadequate. •There are no signs at the entrance/boundary to warn drivers that they are entering onto private land. •The first available sign is high and out of the line of sight of the driver. •The signage on site is illegible. •The driver did not have a fair opportunity to read the terms. •The signs fail to comply with the case set out in Beavis v Parking Eye. •The operator has failed to comply with the BPA code of practice regarding consideration and grace periods. •No evidence has been provided of the period parked. •ANPR photos have been used to show entry/exit in a location with an unclear boundary due to poor entry signage. •The ANPR system is not reliable nor accurate. •The signs fail to adequately warn drivers of what the ANPR data will be used for. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal and expands on their grounds of appeal raising Appendix B of the British Parking Association Code of Practice in relation to entrance signs and the format in which the signs must follow. The appellant has provided 1.Photos of the entrance to the site. 2.Photo showing the entrance sign. 3.Photos of the signs displayed which are obstructed by vehicles. 4.Close up photo of the sign. 5.Photo of the information regarding data protection to show the font size. The above evidence has been considered in making my determination.

Assessor supporting rational for decision

I am allowing this appeal, with my reasoning outlined below: 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. The appellant in this case raising the adequacy of the entrance signage on site. The state the signs fail to comply with Appendix B of the British Parking Association. With this in mind it is important to refer to the following. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Appendix B refers to entrance signage. Signs at the entrance to the parking area should clearly show the type of parking ;and if, when and how any payment should be made. The capital height for Group 1 text will depend on the approach speed of traffic. Group 2 text should be at least 50% of this size. All other text should be smaller than 50% of the Group 1 text size. However, the name of the car park or parking area, or a brief welcome message(if included),may be larger. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size. The appellant in this case has raised the inadequacy of the entrance sign. It is the operators responsibility to provide evidence to rebut the grounds raised by the appellant. Whilst in this case I note the operator has provided photos of the entrance sign the operator has not confirmed the size of the text on the signage nor the size of the signs themselves. Therefore I cannot be satisfied the operator has rebutted the appellants ground of appeal. As such, I am not satisfied the PCN was issued correctly. I must allow 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.

P.S - This is one where MET submitted out of date photos and site plan. But luckily i took lots of photos and was able to demonstrate that the entrance sign is no longer there. MET seem to do this a lot, as I am aware that there is the same issue in a McDonalds car park they manage where on a POPLA appeal they sent photos alleging an entrance sign which is no longer there. 

Happy to provide the popla case number if anyone needs to use this as evidence. 

Umkomaas

Both above decisions - without the name of the PPC we have absolutely no context. Doesn't really help anyone moving forward. Could @EagleEye19902488 and @Zbubuman please edit posts and add the name of the respective PPC please?

Zbubuman

Umkomaas said:

Both above decisions - without the name of the PPC we have absolutely no context. Doesn't really help anyone moving forward. Could @EagleEye19902488 and @Zbubuman please edit posts and add the name of the respective PPC please?

@Umkomaas - All done 

Dourn

Just had a successful appeal decision from POPLA, after a 6-week wait, main grounds for appeal were that the PCN was issued at a harbour port, therefore it is no relevant land, and therefore POFA 2012 does not apply.

Operator: ParkingEye

Decision: Successful

Assessor Name: Richard Beaden

Assessor summary of operator case:

The operator has issued a Parking Charge Notice (PCN) as the driver did not purchase a valid pay and display ticket.

Assessor summary of your case:

The appellant advises that two different operator's have signs on the site. 

They advise that the site is not relevant land as defined by the Protection of Freedoms Act 2012. 

The appellant believes that the operator has breached the British Parking Association code of practice. 

They dispute that they can be held liable for the PCN. 

They have asked to see evidence that the operator has a contract with the landowner. 

They dispute the adequacy of the signs on the site. The appellant has commented on the parking operator’s evidence. 

The appellant has provided a document containing photos and the details of their appeal.

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. I am allowing this appeal. I will explain my reasons below. The operator is using the Protection of Freedoms Act 2012 to hold the appellant liable for the PCN. Schedule 4 sets the requirements for a notice to keeper and advised that they can only be issued in relation to charges issued on relevant land. Relevant land cannot be under statutory control. Harbours and Ports are covered by byelaws and as such would not be relevant land. While this does not apply to all locations it is for the operator to prove that this land is not under statutory control. I am not satisfied that they have done this in this case. As I am allowing the appeal on this basis I do not need to consider any other grounds of appeal.

Umkomaas

Nice one, well done. 

The operator is using the Protection of Freedoms Act 2012 to hold the appellant liable for the PCN. Schedule 4 sets the requirements for a notice to keeper and advised that they can only be issued in relation to charges issued on relevant land. Relevant land cannot be under statutory control. Harbours and Ports are covered by byelaws and as such would not be relevant land.

If you're up for it, complain to the DVLA that PE have attempted to mislead you, and attempted to mislead POPLA as well, by stating that you (as the keeper) are liable for this charge, despite the harbour being under statutory control, covered by bylaws and therefore not relevant land, as prescribed by PoFA. Show them your POPLA Decision.

Potentially there must have been hundreds of keepers mislead by this and paid PE. Ask DVLA if they will institute a thorough review as to how many NtKs have been issued at this harbour stating the keeper is liable under PoFA. 

Wilderness93

Decision Successful

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: • They were a legitimate user of the car park and have evidence  • They did not overstay they were able to park for free • The business website had misleading information regarding the free parking on site • Inconsistent internal appeals outcome and non-compliance with BPA code section 17.4, they were only offered a reduced fee for one of their 3 appeals • Another PCN was issued before their appeal was dealt with which is against BPA code 23.6  • There is inadequate signage at the site and does not comply with 19.3,19.4, 22.1 or appendix b of BPA code • The PCN in not complaint with Protection of Freedoms Act • There is no evidence of the parking operator having landowner authority. It is important to note that the appellant was provided the opportunity to comment on the operator’s case file, the appellant has reiterated their grounds within their comments. The appellant has provided a detailed appeal document containing their appeal, evidence of signs, emails with the parking operator and evidence of car park usage to support their appeal. 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 British Parking Association (BPA) monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet. Section 19.3 of the BPA Code of Practice states that ‘signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand’. Appendix B of the BPA Code of Practice states that ‘Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times’ The responsibility lies with the operator to ensure they are compliant with the BPA Code of Practice and that their signage meets the standards expected. The appellant has advised the signs were inadequate and the parking operator has not complied with appendix b of BPA code. As the operator has not provided evidence of the signage during darkness or that there are lights installed at the car park to provide illumination to the signs at the site, I am unable to assess whether the driver could adequately see or read the signage during the time they were at the site as it was dark when they entered the site as seen by the ANPR images. Ultimately, it is the responsibility of the operator to provide POPLA with sufficient and clear evidence in order to rebut the appellants grounds and prove that the parking charge was issued correctly. I acknowledge why the PCN has been issued however, I am not satisfied that evidence required in order to address the appellants claims has been provided. I must conclude therefore that the PCN has not been issued correctly and, accordingly, allow this appeal. I acknowledge that the appellant has brought other grounds of appeal and evidence to POPLA, but as I am allowing this appeal based on the reasoning above, there is no requirement to address the additional evidence and grounds as they will not affect the outcome of this appeal.