POPLA Decisions

LDast

BeachWalker said:

Assessor supporting rational for decision

To provide some context: the PCN was issued for not paying for parking.

I note the appellant's comments and appreciate that they paid for parking

Upon consideration of the evidence provided, the evidence proves that the appellant never entered their full, correct vehicle registration when at the gym ((  i was at the beach for a walk not the gym dont know where they got from ? ))and were therefore in breach of the site’s terms and conditions. This PCN was issued correctly and the operator dealt with the initial appeal appropriately. Accordingly, I have refused this appeal.

Shows the intellectual malnourishment of some assessors. PCN issued for not paying for parking. Assessor 'appreciates" they did pay for parking. Appeal unsuccessful because correct VRM was not entered.

If the PCN was for not paying and they did pay, entering the correct VRM is irrelevant.  Hey ho... the POPLA decision is not binding and move on to the next stage.

knrumble

ecision

Unsuccessful

Assessor Name

Heidi Brown

Assessor summary of operator case

The parking operator has issued a parking charge notice due to the appellant failing to pay for the whole period of parking.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: - The appellant states they paid for parking and provided evidence of this. They state they believe the operator should have considered the circumstances as a minor keying error, in accordance with the British Parking Association (BPA) Code of Practice because they added G into the registration. - The appellant states the operator has changed the reason for issue after the first appeal. - The appellant states the operator has suffered no loss. Upon reviewing the operator’s evidence, the appellant has reiterated their grounds and raised new grounds. The appellant has provided a copy of the ticket as evidence to support their appeal. The above evidence will be considered in making my decision.

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. When entering a site, it is the motorist’s responsibility to read the signs and adhere to the terms and conditions stated. In this case, the signs state payment is required, and payment instructions are provided. The parking operator has provided a transaction report which shows no record of payment against the appellant’s full and correct registration. Therefore, the terms and conditions of the site were breached, and a charge was issued for £100. - The appellant states they paid for parking and provided evidence of this. They state they believe the operator should have considered the circumstances as a minor keying error, in accordance with the British Parking Association (BPA) Code of Practice because they added G into the registration. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 17 of the Code recognises that drivers are more frequently required to enter their vehicle registration when paying for parking or registering for a permit. Section 17.4A requires the parking operator to have a process for dealing with minor keying errors. This is where there is only one character wrong or if the registration number has been entered in the incorrect order. In these circumstances the PCN should be cancelled at the first stage of the appeal. Section 17.4B requires the parking operator to have a process for dealing with major keying errors. Where more than one character has been incorrectly entered, it requires the parking operator to offer to reduce the amount of the PCN to £20 if it can be shown that the driver was a genuine user of the site. In this case, the appellant registration is YL£$ ~@# but they entered GY£$ ~@#. This is two errors as they have added a G and missed out the L. Therefore, it is considered a major keying error. As the appellant provided evidence of their payment, the operator acknowledged a keying error by offering a reduced charge of £20 to cover administration costs. The appellant rejected this offer and chose to appeal to POPLA. This offer no longer stands and the appellant is liable for the full charge amount as advised on the POPLA website. - The appellant states the operator has changed the reason for issue after the first appeal. This site is managed by Automatic Number Plate Recognition (ANPR) cameras which capture vehicles on entry and exit and later match this with payment data. It is vital motorists pay against their full VRM as it is impossible for the system to recognise an incorrect or partial registration due to there being infinite VRM possibilities. As no payment was made against the appellant’s correct registration number, a charge was issued for failing to pay for the whole duration of stay. The operator did not change the reason for issue in the rejection letter but acknowledged that a payment was made against the incorrect registration. It would be impossible for the parking operator to know this until after the appeal was submitted. - The appellant states the operator has suffered no loss. The appellant has told us in their response that they consider the charge is unfair contrary to the Unfair Terms in Consumer Contract Regulations. The fairness of parking charges was considered more broadly by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. To conclude on whether the charge is fair, I must first look at what the Court said. The Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It 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. The Court made it clear that the same considerations that means it was not a penalty also mean it is not unfair: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations.” (paragraph 104) With that in mind, to conclude whether it is unfair according to the Unfair Terms in Consumer Contract Regulations, I have to take into account the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore not unfair. I note that the appellant has raised additional grounds for appeal in their comments despite not raising this when submitting the initial appeal. Please note that POPLA does not accept new grounds of appeal at the comment stage. Instead, the comment stage is to be used to expand on the initial grounds of appeal after seeing the evidence pack from the operator. As these were not raised in the initial appeal, I cannot consider these this as part of my decision. The appellant has reiterated their original grounds of appeal after reviewing the operator’s case file. As I have addressed these issues above, I will not comment further. After considering the evidence from both parties, the appellant failed to pay for the whole period of parking 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.

What is particularly frustrating in this case is that in the evidence pack supplied by the private parking company, they provide a picture of a computer system whereby they show evidence of a search made on the computer for the index. Well of course they put in the exact index and due to the keying error they were never going to find it on an exact match. However, the screen grab clearly shows that there is an option to perform a fizzy search on the index which allows for searching for text that matches a term closely. The parking company clearly haven't performed this search as it would have brought up my vehicle. Having highlighted this information AND having mentioned in my initial appeal that the company could have associated the index of my vehicle with the one keyed in to the machine, they did not consider this in the investigation and, even considered this to be "new grounds".

Umkomaas

@knrumble - which parking firm please, otherwise there is not a great deal of context. You do know that you are under no obligation to pay this, despite 'losing' at POPLA. If you need further help, please start a new thread. 

Coupon-mad

As expected.  You'll win in court so no paying just because POPLA think the self-serving BPA CoP is good enough. 

knrumble

Thanks for swift replies. I have no intention of paying. I was fully expecting rejection but i am still utterly gob smacked that this sort of thing is still allowed to happen. 

The company involved is Premier Park LTD. I had created a separate thread with some more details

nuoretrapparit

Thanks to the help of various posters, managed to get this one thrown out as the operator (APCOA)'s landowner contract only allows them to issue PCNs, and not penalty notices which is what they sent me.

Code 
0511844044
Date 
10 October 2024

Decision

Successful

Assessor Name

Claire Brackenridge

Assessor summary of operator case

The parking operator has issued the penalty notice (PN) due to using a private car park without making a valid payment.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. • This is not relevant land under POFA 2012, therefore no registered keeper liability can be established. They have provided a reference number for another POPLA appeal. • The keeper of a vehicle cannot be assumed to be the owner. • As the keeper of the vehicle, it is their right not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. Only Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party. • The burden of proof rests with the operator to show that (as an individual) they have personally not complied with terms in place on the land and show they are personally liable for their parking charge. • APCOA’s online reference to the notice leading to the payment page shows the headline as ‘Parking Charge Notice’, which contravenes the BPA's Code of Practice Appendix G, Paragraph 5.4 where it says ‘Parking Charge Notice’ must not be used if it is a penalty notice. As a result, this has caused confusion because it indicates POFA 2012 is used in this situation and POFA 2012 does not apply on Railway Land. • Furthermore, this also indicates there are two separate notices and if one was paid, the concern was the other notice would be outstanding without any knowledge. • They have raised landowner authority and say they do not believe that APCOA has demonstrated a proprietary interest in the land. • They contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. • They bring into question the authenticity of the photographs taken of the vehicle. The time, location, direction details are added as a black overlay box on-top of the photos. It is within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. They would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos. Furthermore, they would require APCOA to provide evidence of calibration of the timing and technology used to ensure its accuracy is consistent. • The appeal rejection letter used the law of “Vehicle Excise and Registration Act 1994 (C.22)" as a clarification as to the definition of an owner relating to a vehicle in order to enable them to pursue the individual. This legislation does not state this definition. If APCOA claim that it is specified within this legislation, they challenge them to produce evidence of this definition within the legislation and how they came to interpret this for the context of this notice. The appellant has provided a screenshot of the APCOA website that states, “View the evidence, pay or challenge my Parking Charge Notice (PCN/ECN/PN)”, and an image of the front of logbook that states the document is not proof of ownership. The above evidence has been considered in making my determination. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal. They have said the keeper of a vehicle cannot be held liable for any penalty notices issued, whether it is POFA compliant or not, as the front of a logbook states that keeping a vehicle does not prove ownership. The Operator cites Section 22 of the Vehicle Excise and Registration Act (1994), which contains no mention of the word ‘owner’, nor contains any mention, whether explicit or implied, that keeping a vehicle is proof of ownership. They have provided a weblink for this. The operator's assertion of this point, with the prefix ‘For further clarification’, is not supported by the legislation in question. Furthermore, the Ask The Police online resource is clear in its judgement that keeping a vehicle does not prove ownership, and they have provided another weblink. The appellant has said the operator’s signage evidence is irrelevant as this was not raised in their appeal. This suggests a cut-and-paste approach from the operator regarding the pursuit of this Penalty Notice. The Operator's inclusion of correspondence to show consistent terminology was used, is limited to correspondence for which no dispute was raised in the appeal. It is the online platform that mentions Parking Charge Notices, and this is where the confusion arises. The appellant has said neither Govia Thameslink Railway Company Limited nor Govia Thameslink Railways Company Limited, the two landowner entities listed in the agreement, are company names listed on the Companies House register, so they are unclear exactly as to which landowner this agreement even refers to. Even if the agreement did contain the name of an existing legal entity, it states the operator is the creditor of ‘all notices of parking charge issued’, with right to pursue these in the county court. As mentioned in the appeal and as subsequently confirmed by the operator, the notices issued to the keeper by post are Penalty Notices, not Parking Charge Notices, or Notice of Parking Charge, or any such wording. They therefore do not see the relevance of this contract relating to this appeal and strongly challenge the right of the operator to issue Penalty Notices of this kind on behalf of the landowner.

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 Penalty Notice (PN) correctly. In their appeal, the appellant has raised landowner authority. They have said they do not believe APCOA has demonstrated a proprietary interest in the land. The appellant has said the landowner document provided by the operator states they are the creditor of ‘all notices of parking charge issued’, with right to pursue these in the county court, but in this case, the notices issued to the keeper by post are Penalty Notices, not Parking Charge Notices, or Notices of Parking Charges. Therefore they do not see the relevance of this contract and strongly challenge the right of the operator to issue Penalty Notices of this kind on behalf of the landowner. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the Code 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 as a penalty notice has been issued in breach of railway byelaws, I would expect the landowner agreement to detail this fact. However the agreement the parking operator has provided does not mention penalty notices or railway byelaws. It refers to parking charges and notices of parking charges. Therefore, I cannot be sure the operator has the authority to issue penalties at this site and so I cannot conclude that the PN was issued correctly. 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.

Umkomaas

Well done. How about a complaint to the DVLA that APCOA breached their KADOE contract by issuing Penalty Notices when all they have in place is a landowner contract to issue Parking Charge Notices. The DVLA has been mislead, providing your details to APCOA with no reasonable cause, violating your rights under DPA/GDPR.

Copy them in on the POPLA decision, but please break down the wall of virtually unreadable text into a number of more manageable paragraphs, otherwise they may not read it at all. Send duplicate complaints to:

ccrt@dvla.gov.uk

KADOEservice.support@dvla.gov.uk 

Coupon-mad

nuoretrapparit said:

Thanks to the help of various posters, managed to get this one thrown out as the operator (APCOA)'s landowner contract only allows them to issue PCNs, and not penalty notices which is what they sent me.

Code 
0511844044
Date 
10 October 2024

Decision

Successful

Assessor Name

Claire B

Assessor summary of operator case

The parking operator has issued the penalty notice (PN) due to using a private car park without making a valid payment.

Assessor summary of your case

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

• This is not relevant land under POFA 2012, therefore no registered keeper liability can be established. They have provided a reference number for another POPLA appeal.

• The keeper of a vehicle cannot be assumed to be the owner.

• As the keeper of the vehicle, it is their right not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. Only Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

• The burden of proof rests with the operator to show that (as an individual) they have personally not complied with terms in place on the land and show they are personally liable for their parking charge.

• APCOA’s online reference to the notice leading to the payment page shows the headline as ‘Parking Charge Notice’, which contravenes the BPA's Code of Practice Appendix G, Paragraph 5.4 where it says ‘Parking Charge Notice’ must not be used if it is a penalty notice. As a result, this has caused confusion because it indicates POFA 2012 is used in this situation and POFA 2012 does not apply on Railway Land.  Furthermore, this also indicates there are two separate notices and if one was paid, the concern was the other notice would be outstanding without any knowledge.

• They have raised landowner authority and say they do not believe that APCOA has demonstrated a proprietary interest in the land.

• They contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

• They bring into question the authenticity of the photographs taken of the vehicle. The time, location, direction details are added as a black overlay box on-top of the photos. It is within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. They would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos. Furthermore, they would require APCOA to provide evidence of calibration of the timing and technology used to ensure its accuracy is consistent.

• The appeal rejection letter used the law of “Vehicle Excise and Registration Act 1994 (C.22)" as a clarification as to the definition of an owner relating to a vehicle in order to enable them to pursue the individual. This legislation does not state this definition. If APCOA claim that it is specified within this legislation, they challenge them to produce evidence of this definition within the legislation and how they came to interpret this for the context of this notice. The appellant has provided a screenshot of the APCOA website that states, “View the evidence, pay or challenge my Parking Charge Notice (PCN/ECN/PN)”, and an image of the front of logbook that states the document is not proof of ownership.

The above evidence has been considered in making my determination.

After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal. They have said the keeper of a vehicle cannot be held liable for any penalty notices issued, whether it is POFA compliant or not, as the front of a logbook states that keeping a vehicle does not prove ownership. The Operator cites Section 22 of the Vehicle Excise and Registration Act (1994), which contains no mention of the word ‘owner’, nor contains any mention, whether explicit or implied, that keeping a vehicle is proof of ownership. They have provided a weblink for this. The operator's assertion of this point, with the prefix ‘For further clarification’, is not supported by the legislation in question. Furthermore, the Ask The Police online resource is clear in its judgement that keeping a vehicle does not prove ownership, and they have provided another weblink. The appellant has said the operator’s signage evidence is irrelevant as this was not raised in their appeal. This suggests a cut-and-paste approach from the operator regarding the pursuit of this Penalty Notice.

The Operator's inclusion of correspondence to show consistent terminology was used, is limited to correspondence for which no dispute was raised in the appeal. It is the online platform that mentions Parking Charge Notices, and this is where the confusion arises.

The appellant has said neither Govia Thameslink Railway Company Limited nor Govia Thameslink Railways Company Limited, the two landowner entities listed in the agreement, are company names listed on the Companies House register, so they are unclear exactly as to which landowner this agreement even refers to. Even if the agreement did contain the name of an existing legal entity, it states the operator is the creditor of ‘all notices of parking charge issued’, with right to pursue these in the county court.

As mentioned in the appeal and as subsequently confirmed by the operator, the notices issued to the keeper by post are Penalty Notices, not Parking Charge Notices, or Notice of Parking Charge, or any such wording. They therefore do not see the relevance of this contract relating to this appeal and strongly challenge the right of the operator to issue Penalty Notices of this kind on behalf of the landowner.

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 Penalty Notice (PN) correctly. In their appeal, the appellant has raised landowner authority. They have said they do not believe APCOA has demonstrated a proprietary interest in the land.

The appellant has said the landowner document provided by the operator states they are the creditor of ‘all notices of parking charge issued’, with right to pursue these in the county court, but in this case, the notices issued to the keeper by post are Penalty Notices, not Parking Charge Notices, or Notices of Parking Charges.

Therefore they do not see the relevance of this contract and strongly challenge the right of the operator to issue Penalty Notices of this kind on behalf of the landowner. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the Code 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 as a penalty notice has been issued in breach of railway byelaws, I would expect the landowner agreement to detail this fact. However the agreement the parking operator has provided does not mention penalty notices or railway byelaws. It refers to parking charges and notices of parking charges. Therefore, I cannot be sure the operator has the authority to issue penalties at this site and so I cannot conclude that the PN was issued correctly. 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.

We must use this point every time in APCOA byelaws PN cases.

LDast

But it isn't even a Penalty Notice. It is an "offered contract" to not prosecute the penalty if £100 (or whatever amount) is paid to APCOA.

Coupon-mad

Yep but let's not complicate what should now be SINGLE POINT easy POPLA appeals for APCOA PNs.