POPLA Decisions

yarpsnehpets

It's just the way the idiots at POPLA word this circumstance.

They do all they can to avoid saying "Your appeal has been successful because they operator has realised that the notice was issued in error."

Umkomaas

https://forums.moneysavingexpert.com/discussion/comment/82104939#Comment_82104939

I wonder what their rational is for saying that? 🙈

Le_Kirk

I wonder what their rational is for saying that?

Not just me then! They don't have rational or even a rationale. I did challenge them on this a few years ago and was told it would be addressed next time they updated their system - still waiting. I was pleased to see the "has withdrawn your appeal" recently as I helped my daughter with an NCP PCN appeal. She had to call me and asked me what it meant! I was pleased to be able to tell her, it meant she had WON!

intex310

Decision

Unsuccessful

Assessor Name

Gary Milne

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to parking in a no parking area.

Assessor summary of your case

The appellant has provided a detailed account surrounding the parking event in question. For the purpose of my report, I have summarised the grounds raised into the points below. • Grace Period: BPA Code of Practice – non complaint. No consideration period applied. The driver located signage, read to interpret the signage and left within 5 mins. • Signs do not make the boundaries clear. There are no entrance signs for the regular entry and signs in this car par are not prominent, clear or legible from all parking spaces. Furthermore, there is no boundary of the venue. Starting or entering the site claimed is not clear. • The original notice to keeper is not PoFA complaint as it does not contain the information required by Schedule 4 Paragraph 9(2)(b). • No evidence of Landowner Authority. The appellant has provided 1. Their appeal in a separate letter. After reviewing the operator’s evidence, the appellant reiterates much of their concerns from the initial appeal. The add that the vehicle seems to have stopped, read the confusing signage and moved off. The appellant raised further issues regarding wording ‘that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full’ and is looking for a verbatim quote which specifies that 'the parking charges have not been paid in full’. All of the above has been considered in making my determination.

Assessor supporting rational for decision

The appellant has identified as the keeper of the vehicle on the day of the parking event.

The operator has provided evidence to demonstrate it has complied with the Protection of Freedoms Act (PoFA. 2012). As such, I am considering the appellant ’s liability for the PCN, as the keeper. There is no requirement for POPLA to quote verbatim from the PCN when it complies with PoFA. 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. I note the appellant is looking for a verbatim quote which specifies that the parking charges have not been paid in full. However, the issue of this case is not whether the appellant could have paid for parking, rather that they parked in a no parking area. The PCN does state this as the parking infringement and therefore the PCN was issued correctly. No further consideration needs to be given with regard to the PCN in relation to the parking offence.

The operator has provided photographic evidence of the signage in place in the car park, which detail the terms and conditions of parking. The signs advise No Parking At Any Time. The motorist is advised that failure to comply with the terms and conditions will result in a PCN being issued for £100. The operator has provided photographs of the signage and a site map to demonstrate location of the signage in the area. The operator has also provided photographs showing the appellant vehicle parked between 15:00:12 to 15:04:02. The appellant has stated the signs do not make the boundary clear. However, within the photographs provided by the operator of the parking infringement, there is a sign on the wall where the appellant parked stating the terms of No Parking. I am satisfied that the appellant parked in an area where it was clearly displayed no parking was allowed. I have also considered the signage in relation to the relevant code. Section 3.1.3 of the Single Code of Practice contains the requirements for signs displaying the terms and conditions. The signs must be placed throughout the site, so that drivers have the opportunity to read them when parking or leaving their vehicle. The terms and conditions must be clear and unambiguous, using a font and contrast that is be conspicuous and legible. In this case the operator's evidence clearly demonstrates the signage complies with the code and clearly communicated the terms and conditions to the appellant.

The appellant has raised concerns over the consideration and grace periods. Section 5.1 of the Single Code of Practice states that parking operators must allow a consideration period of appropriate duration, subject to the requirements set out in Annex B to allow a driver time to decide whether or not to park. It is to allow the user time to leave the car park if they do not wish to accept the terms for parking on the site. However, in a no parking area, there is no consideration time, the appellant should stop and leave their vehicle. Section 5.2 of the Single Code of Practice also requires a parking operator to allow a grace period of 10 minutes in addition to the parking period. The Code advises that grace periods do not apply other than where a driver has parked in compliance with the terms and conditions of the area. The grace period is not a period of free parking. In this case, there is no grace period and there is no allowed parking period.

The appellant has stated the operator has not demonstrated that it has the necessary authority from the landowner to issue and enforce parking charges at this location. Section 14.1 of the Code states that where controlled land is being managed on behalf of a landowner, written confirmation must be obtained before a parking charge can be issued. The evidence provided in relation to this appeal meets the criteria POPLA requires, and therefore I am satisfied that the operator has sufficient authority at the site on the date of the parking event. 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, as parked in a no parking area, I conclude that the operator has issued the parking charge correctly, and the appeal is refused.

yarpsnehpets

What a mess from Gary Milne who shows that he does not understand the requirements of PoFA.

Gary Milne states, "The operator has provided evidence to demonstrate it has complied with the Protection of Freedoms Act (PoFA. 2012). As such, I am considering the appellant ’s liability for the PCN, as the keeper."

He then states, "There is no requirement for POPLA to quote verbatim from the PCN when it complies with PoFA."

The point the appellant was making is that the PCN does not contain the required paragraphs of mandatory wording which PoFA Schedule 4 Paragraph 9(2) demands. The Assessor appears to think that the missing wording is irrelevant in an instance where other requirements of PoFA are complied with? This is nonsense.

Gary Milne then moves on and states, "I note the appellant is looking for a verbatim quote which specifies that the parking charges have not been paid in full. However, the issue of this case is not whether the appellant could have paid for parking, rather that they parked in a no parking area."

Unbelievable - one has to ask if Gary Milne has even read (and understood) the requirements of paragraph 9(2)(b) - regardless of the 'offence' (Gary's word!), the notice must still state the mandatory wording required by Schedule 4.

Absolute nonsense from POPLA again as the Assessor carefully tiptoes around the significant appeal point which clearly demonstrates a non compliant notice. The requirements of 9(2)(e) are not met either.

Jenni_D

Also notwithstanding the fact that you cannot contract to do that which is forbidden (No Parking). 🤷‍♀️

Car1980

I note the appellant is looking for a verbatim quote which specifies that the parking charges have not been paid in full.

Verbatim, or as good as, is a legal requirement and the law specifically states it MUST contain it.

What a tit.

yarpsnehpets

Another shocker from Jamie Macrae.

Background - Car park was gridlocked so the driver was circulating in the hope that a space would open up. Nothing available so the driver left.

According to Jamie Macrae the driver should still of sought out the signage to examine T&Cs. Apparently, simply being on site was enough to form a contract regardless of the fact that no parking was actually available.

Assessor - Jamie Macrae.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. • In ParkingEye Ltd v Hotchin (2014), the court distinguished between a vehicle that is parked and one that is merely waiting or circulating while seeking a space, finding that waiting does not constitute parking.

The circumstances here are similar. The vehicle remained on site for only around 10 minutes, no parking space was occupied, and no parking took place. Therefore, the alleged parking contravention did not occur. • Parking Eye’s relies solely on ANPR images showing the vehicle entering and exiting the site. These images do not prove that the vehicle was parked, occupied a bay, or accepted any parking terms.

The vehicle entered only to check for available spaces. None were available, and severe congestion within the car park prevented an immediate exit. The vehicle remained in moving or stationary traffic and did not park at any time. • The key facts are uncontested; no parking space was occupied at any stage.

No occupant exited the vehicle. The vehicle was never left unattended. The vehicle remained in circulation throughout the entire ANPR period. The total recorded duration was approximately 10 minutes and 21 seconds. Attached supporting evidence showing congestion within the site which was taken by taking additional expense AFTER the notice was issued. • ParkingEye has provided no evidence that the vehicle was parked. Their ANPR images show only entry and exit times and do not demonstrate that the vehicle occupied a bay, was left unattended, or engaged in any activity that could reasonably be described as parking.

The vehicle was simply searching for a space and was delayed by congestion within the car park. ANPR cannot show whether spaces were available or whether traffic conditions prevented an immediate exit. As the burden of proof rests with ParkingEye, and no evidence of actual parking has been provided, the allegation is not established. • No Contract Was Formed, a parking contract can only be formed if the driver has a fair opportunity to read and accept the terms before parking.

Their photographs show the ANPR camera records vehicles before the terms and conditions signage becomes visible. The terms were not readable before entry and could not be properly reviewed from within the vehicle. Furthermore, as no parking space was available, there was no realistic opportunity to park or accept any parking contract. Accordingly, no contract was formed.

After reviewing the parking operator’s evidence, the appellant reiterates their grounds of appeal, they explain the parking operator does not address the central issued raised in their appeal, they explain the parking operator incorrectly refer to a grace period on entry, rather than a consideration period., and the parking operator’s reliance on Parking Eye V Beavis is misplaced. The appellant has provided photos of traffic congestion within the car park, and photos of the parking terms as evidence to support their appeal. The above evidence will be considered in making my decision.

Assessor supporting rational for decision

POPLA is an independent and impartial single-stage appeals service that considers the evidence provided by both parties to determine whether a Parking Charge Notice (PCN) was issued correctly and whether the driver complied with the advertised terms and conditions of the car park. While I acknowledge the appellant's dissatisfaction with the parking operator's handling of their initial appeal, matters relating to customer service or the operator's response process fall outside POPLA's remit. POPLA's role is limited to assessing whether the PCN was correctly issued in accordance with the applicable parking terms and conditions.

The parking operator’s entrance signage at the site states: “Pay on arrival…see signage in the car park for terms and conditions…”. Their terms and conditions signage within the site states: “Parking Tariffs Apply…Up to 1 hour £1.50…Failure to comply with the terms and conditions will result in a Parking Charge of £100…”. The images of the vehicle captured upon entry and exit confirm the time the vehicle was on this land for 10 minutes. The operator has evidenced from its system report that there was no payment registered for this vehicle to park on this land on the date of the event. I will now consider the appellant’s grounds of appeal to determine if they dispute the validity of the PCN.

While I note the appellant is unhappy with the parking operator’s evidence, however, it is important to note that POPLA is an evidence-based service. It is not the role of a POPLA Assessor to gather evidence or contact witnesses for either party. Each party is invited to provide any evidence they wish to be considered, and the decision is based solely on what is submitted. 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. Parking operators have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver.

In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper.

While I understand the appellant’s reference to ParkingEye Ltd v Hotchin, however, as such court cases cannot set a precedent, it will not be considered.

The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators need to comply with. Section 3.1.1 of the Single Code of Practice states that there must be an entrance sign displayed and maintained at the entrance to the site, to inform drivers whether parking is permitted subject to terms and conditions or prohibited. Section 3.1.2 of the Code contains the principles the entrance sign must display, including whether public parking is available and if a payment is required. Its design must also comply with the standard format as described in Annex A. The entrance sign must take into account the speed of vehicles approaching the car park.

Section 3.1.3 of the Single Code of Practice contains the requirements for signs displaying the terms and conditions. The signs must be placed throughout the site, so that drivers have the opportunity to read them when parking or leaving their vehicle. The terms and conditions must be clear and unambiguous, using a font and contrast that is be conspicuous and legible. Signage within a car park is used to communicate the terms and conditions to motorists, and it is important that these are clear and visible so drivers can understand the requirements before parking. The parking operator has provided a series of photos of the site, along with a map with positions of signs highlighted. The appellant has provided the photos above. I can see from the evidence pack there is an entrance sign. Which the motorist passed on their way into the car park. Entrance signs are an important part of establishing a contract and would put the driver on notice that terms and conditions applied. The appellant says the ANPR cameras are positioned before the signage; however, the evidence shows this is not the case. The appellant has provided a photo of the camera with a sign behind it, however, this sign is not an entrance sign, as it displayed the terms and conditions, as above the wording within the entrance sign and terms and conditions signs are different, the map provided by the parking operator shows the entrance sign is in position behind where the appellant took the photo, at the entrance of the site, and in clear view for motorists as they enter the site,

Further, specific terms and conditions signage are placed around this site, detailing the terms of use. These signs are in contrasting colours, and I believe they would have been clear and conspicuous to drivers who wish to use the site. I am satisfied from the evidence provided that the signage at the site meets the requirements of The Code of Practice and that the motorist had sufficient opportunity to familiarise themselves with the terms and conditions.

It is the driver’s responsibility to seek out the terms and conditions and, if you agree with them, stay or if you did not agree with them leave the site. Whether the appellant read the terms and conditions is irrelevant, the appellant was afforded a reasonable opportunity to read them.

When parking on private land car park, motorists must be given sufficient time to decide whether to accept the terms and remain on site or reject them and leave, known as a consideration period. Section 5.1 of the Single Code of Practice states that parking operators must allow a consideration period of appropriate duration, subject to the requirements set out in Annex B to allow a driver time to decide whether or not to park. In this case the consideration period is five minutes, as per Table B.1 Controlled land within The Code.

Once a motorist exceeds this period, they are bound by the contractual terms and conditions detailed within the parking signage.

The appellant became bound by the terms and conditions of the site by parking, waiting, or staying at the location for 10 minutes, exceeding the consideration period by five minutes.

While I note the appellant has explained on the day the site was congested, however, there is no evidence to demonstrate this, as explained by the appellant the photos they have provided of the site were taken after the PCN was issued.

The appellant disputes that the ANPR records do not show the period of parking. As this is an ANPR monitored site, the parking operator is only required to demonstrate the vehicle’s entry and exit times. This is to show the date and length of time the vehicle has remained on a particular car park, and the parking operator considers this to be the period of parking.

There is no requirement for the parking operator to present photographic evidence of the vehicle parked on the car park.

When parking on private land, it is the responsibility of all motorists to be aware of how long their vehicle has remained at the site and to make the appropriate payment for parking to cover the full duration of their stay.

Having considered all the evidence provided, I find that the motorist did not pay for their parking, and did not comply with the site’s terms and conditions. I appreciate the appellant’s explanation and the effort taken to provide detail, but based on the evidence available, I am satisfied that the PCN was issued correctly and the appeal must be refused. Any questions relating to payment of the parking charge should be directed to the operator.

Car1980

That's one of the worst ones I've ever seen.

Jenni_D

Frustrated contract. This will never see a court .. they wouldn't want a judge ruling on that.