POPLA Decisions

Umkomaas

Yep, POPLA have got this one right. Well done on achieving that result - POPLA cannot be relied on to understand the finer points of PoFA, but your appeal was either spelled out comprehensively in full, or you were fortunate enough to have an assessor with a bit of grey matter able to understand this stuff (or both). 

That's it, now put firmly to bed. But please do keep anything related to the PCN safely for 6 years. The conveyor belt nature of this appalling 'service' has seen previous POPLA appeals ignored, and even some court case wins resurrected.

Well done in shaking this monkey off your back. 👍

fillymouskwitz

POPLA appeal - rejected

Bum. Perhaps an own goal with appealing too soon, but as it's a lease car, I thought it was key to appeal before the lease provider automatically paid the fine. Not sure of next steps. 

Background: a window PCN at a railway car-park. Vehicle is a lease car. 

The appellant has raised the following points from their grounds of appeal. • As a notice to keeper (NTK) compliant with the Schedule 4 of the Protection of Freedoms Act 2012 (POFA), has not been issued, no keeper liability can be established. • As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. • The operator also failed to deliver a notice to hirer that was fully compliant with the requirements of Schedule 4 of POFA. The operator did not provide copies of any of the hirer documents. • This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains, they are only appealing as the keeper. • There has been no admission as to who may have parked the car, and no evidence of this person has been produced by the operator. • In this case, no other party apart from an evidenced driver can be told to pay. • They have referred to other POPLA appeals relating to keeper liability and that the keeper cannot be assumed to be the driver. • The operator has no standing or authority to pursue charges nor form contracts with drivers as per Section 7 of the BPA Code of Practice. • They put the operator to strict proof to provide POPLA and them with an un-redacted, contemporaneous copy of the contract between the operator and the landowner. They have also detailed the information that should be included in a contract. After reviewing the operator’s evidence, the appellant has said APCOA admits that no notice to owner was sent out within the required time frame. This is fatal to the operator's case because they are seeking keeper/owner liability. The driver has never been identified. It is irrelevant that the keeper appealed after being alerted to the PN on the windscreen.

Assessor supporting rational for decision

I acknowledge the appellant has said they were not the driver at the time in question, and the driver has not been identified. I also acknowledge they have said the operator cannot transferred the liability of the PN to them as the registered keeper as a notice to keeper or notice to hirer that complies with The Protection of Freedoms Act (POFA) 2012 was not sent. POFA 2012 is a law that allows parking operators to transfer the liability to the registered keeper if the driver or hirer is not identified when a PCN has been issued on relevant land. In this case, this penalty has been issued for a breach of the Railway Byelaws. The byelaws make the owner of a vehicle responsible for the charge, who the operator can assume is the registered keeper. Therefore POFA 2012 does not apply. I also acknowledge the appellant has said a notice to owner was not issued. They have said APCOA admits that no notice to owner was sent out within the required time frame, and this is fatal to their case because they are seeking keeper/owner liability. It is irrelevant that the keeper appealed after being alerted to the PN on the windscreen. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Appendix G of the code contains all the relevant sections relating to Byelaws. Section 4.3.1 states the PN should be given by affixing it to the vehicle at the time the alleged breach of Byelaws is identified. Section 4.3.2 states the PN issued by post following a PN affixed to the vehicle should be given in the period of 28 days following the period of 28 days beginning with the day after than on which the initial PN was affixed to the vehicle. In this case, a PN was affixed to the vehicle on the (redacted), and the appellant raised their appeal with the operator on the (redacted) 4. As this was raised before the timescale the notice to owner needed to be sent by post, a notice to owner was not required to be sent. I have seen no evidence that would lead me to conclude that the appellant is not the owner, and I am therefore going to be considering their responsibility as the vehicle owner under the Railway Byelaws. When assessing an appeal POPLA considers if the parking operator has issued the penalty correctly and if the driver has complied with the rules of the car park. The signage at a site states the rules that apply for parking. The signage at this site states payment is required on arrival, and parking is subject to the payment of the correct parking fee as displayed at the tariff board. Failure to purchase a valid parking session, APCOA Connect session or valid parking permit can result in a PN for £100 being issued. The parking operator has provided images of the appellants vehicle parked on site and details from its system to show the driver did not pay for their stay. I acknowledge the appellant has said the operator has no standing or authority to pursue charges nor form contracts with drivers as per Section 7 of the BPA Code of Practice, and they put them to strict proof to provide an un-redacted, contemporaneous copy of the contract between the operator and the landowner, detailing the information that should be included in a contract. 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, and 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 operator has provided a copy of its agreement with the landowner. This can be seen starting on page 39 of the evidence pack. This appears to be a witness statement and therefore is not required to contain all of the details a contract would. This states the contract start date was the 1st of April 2021 and the end date is the 1st of April 2026. Therefore, I am satisfied that the operator had sufficient authority at the site on the date of the parking event. POPLA’s role is to assess if the operator has issued the penalty notice in accordance with the rules of the privately operated car park. As they have not been met on this occasion, I conclude that the operator has correctly issued the penalty charge, and the appeal is refused.

Coupon-mad

This isn't true and you are certainly not the owner!

"As this was raised before the timescale the notice to owner needed to be sent by post, a notice to owner was not required to be sent."

Oh yes it is! However it is slightly complicated if this was a Penalty Notice because the POFA doesn't apply, so you can't really say that the POFA requires a NTO in these circumstances.  Albeit POPLA definitely are wrong to say the above.

As it's a Penalty Notice (I assume) just ignore APCOA and it times out in 6 months.  Perfectly safe to totally ignore the £170 demands that will follow this farce of a decision. Nothing will happen.

LDast

It's not even a real Penalty Notice. It is a fake one and unlawful because the language used in it. Simply ignore everything from now on or dare APCOA to try and initiate a private criminal prosecution in the magistrates court. They wouldn't dare because they would be exposed to the fraudulent nature of their operation.

POPLA have no standing to adjudicate on a Penalty Notice, if it were a real one. The only way to try and recover a "fine" issued under statutory powers is through the magistrates court where the threshold for evidence is much higher than in the county court.

Anyway, APCOA (and SABA) are going to get their comeuppance when they are exposed nationally for their fraudulent behaviour and I would expect there to litigation against them for all the £millions they have defrauded recipients of the fake PNs.

fillymouskwitz

As ever, grateful for the advice. Does the six months timeout from the Penalty Notice or the appeal rejection do you know?

Umkomaas

fillymouskwitz said:

As ever, grateful for the advice. Does the six months timeout from the Penalty Notice or the appeal rejection do you know?

If you work on the later of the two you'll be safe. 

Coupon-mad

fillymouskwitz said:

As ever, grateful for the advice. Does the six months timeout from the Penalty Notice or the appeal rejection do you know?

Doesn't matter but it's from the date of breach of byelaw AFAIK (the parking event date). It doesn't matter because NOTHING will happen with APCOA.

13zero8

Forum thread:

https://forums.moneysavingexpert.com/discussion/6543232/euro-car-parks-ntk 


POPLA Decision:

Decision

Successful

Assessor Name

Richard Beaden

Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) as the vehicle was parked in a no parking area.

Assessor summary of your case

The appellant has provided three copies of a document detailing their appeal. The appellant advises that they are the keeper of the vehicle. They dispute that the vehicle was parked and explain that it was not parked in the location stated by the operator at any time. They explain that the vehicle was loading and not parked. They dispute that any evidence was provided which shows that the vehicle was parked. They advise that the staff on site confirmed that the vehicle was ok to load in this location. The appellant advises that the operator has stated that the vehicle was parked in a no parking location but if this was the case no contract could have been formed. They dispute that a contract can prevent them from doing something without an offer. The appellant has asked to see evidence that the operator has a contract with the landowner. They question the adequacy of the signs on site. They dispute that the signs are clear regarding the use of ANPR. They also question compliance with the ICO Code of Practice. They do not believe that the PCN complies with the requirements established within the Protection of Freedoms Act 2012. They also believe that the images on the PCN comply with the British Parking Association code of practice. The appellant has commented on the parking operator’s evidence.

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 appellant challenges that a valid parking contract was formed. The signs on site advise that this location is a no parking area and there is no option for a motorist to park in this location. The operator can issue a parking charge notice for trespass but this is not what has happened. The operator has referred to the site as a car park and has advised the PCN advises that the driver was parked in breach of the terms and conditions but there were no parking facilities which the driver could have used. The PCN makes no mention of trespass and the driver would not have to form a contact to have been trespassing. The operator has issued the PCN as though the driver had breached the terms and conditions but the operator should have treated this as a case of trespass. As such I must conclude that the PCN has not been correctly issued and on this basis I am allowing the appeal.

Coupon-mad

Flipping heck!  ...that's great!

We have NEVER seen POPLA show this sort of Judge-like legal thinking:

"The appellant challenges that a valid parking contract was formed. The signs on site advise that this location is a no parking area and there is no option for a motorist to park in this location.

The operator can issue a parking charge notice for trespass but this is not what has happened. The operator has referred to the site as a car park and has advised the PCN advises that the driver was parked in breach of the terms and conditions but there were no parking facilities which the driver could have used.

The PCN makes no mention of trespass and the driver would not have to form a contact to have been trespassing.

The operator has issued the PCN as though the driver had breached the terms and conditions but the operator should have treated this as a case of trespass."

Umkomaas

The operator has issued the PCN as though the driver had breached the terms and conditions but the operator should have treated this as a case of trespass."

But they wouldn't be able to claim £100 for a trespass!