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Lost at POPLA against Parking Eye - what next?
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C4WRX
Posts: 27 Forumite
Hi,
I have had a surprising result from POPLA against Parking Eye saying that my appeal was unsuccessful. This is the first time I have lost at POPLA. What is the next step now? I know I don't have to pay, but will Parking Eye keep hounding me or will they go away if I keep ignoring them? If there a way to appeal the POPLA decision?
I believe the result is not consistent with other POPLA decisions I have had lately.
I don't know if it's my imagination, but the POPLA assessor almost seems to be siding with the parking company. She is even satisfied that the operator has fully adhered to the Protection of Freedoms Act 2012!
Here is the full decision:
DecisionUnsuccessful
Assessor NameCarly Law
Assessor summary of operator case
The operator’s case is that the Parking Charge Notice (PCN) was issued as the appellant’s vehicle was on site for two hours and two minutes, without making payment to park.
Assessor summary of your case
The appellant has raised several grounds for appeal. These are as follows:
1. Not a genuine pre estimate of loss – An offer of parking for a set sum was made in return for payment. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable.
2. Contract with the landowner – The appellant states that the operator does not own nor have any interest or assignment of title of the land in question. As such, he does not believe that the operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. The appellant says that he requires sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner.
3. Notice to Keeper not properly given under POFA 2012 – no keeper liability: The appellant states that this was a Pay and Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the Parking Charge Notice (PCN). He says that due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed. The appellant states that the Notice to Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay. It does not create any certainty of terms
4. Unreliable, unsynchronised and non-compliant Automatic Number Plate Recognition (ANPR) system; Under paragraph 21.3 of the British Parking Association’s (BPA) Code of Practice (CoP), parking companies are required to ensure ANPR equipment is maintained and is in correct working order. The appellant states that they require the operator to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. He states that as the parking charge is founded entirely on two photos of the his vehicle entering and leaving the car park at specific times, it is vital that the operator produces evidence in response to these points.
5. ANPR usage: Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.'
6. Unclear and non-compliant signage, forming no contract with driver; The appellant states that due to their awkward position and the barely legible size of the small print, the signs in this car park are very hard to read. He contends that the signs and any core parking terms that the operator are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice.
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system; The appellant states that some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. He wants the operator to provide proof that it has planning consent.
Assessor supporting rational for decision:
The operator has provided me with photographic evidence of the terms and conditions as displayed throughout the site, which state “Parking tariffs apply 24 hours a day, 7 days a week, You can purchase additional time (if required) at the payment machines or by phone before leaving” and “Failure to comply with the terms and conditions will result in a Parking Charge of: £100”.
The appellant has raised several grounds for appeal. I have addressed each of these below:
Contract with the landowner: ParkingEye have produced a witness statement, signed by a representative of the landowner, stating that the operator had the appropriate authority of the landowner to operate in the car park on the date in question.. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. This meets the criteria set out in the BPA Code of Practice, section 7.
Notice to Keeper; I have reviewed the Notice to Keeper and I am satisfied that the operator has fully adhered to the Protection of Freedoms Act 2012.
Unreliable, unsynchronised and non-compliant Automatic Number Plate Recognition (ANPR) system; The British Parking Association audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate. Independent research has found that the technology is generally accurate. As the appellant is advising he believes that the ANPR system is incorrect, I would expect him to provide evidence to demonstrate this.
ANPR usage: I note the appellant says “Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.' While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park. If the appellant had concerns about the validity of the signage and did not feel that, as a result, they could not comply with the terms and conditions in force, they had the opportunity to reject the contract by not parking in the car park..
Unclear and non-compliant signage, forming no contract with driver; I am satisfied the signs meet the standards set out by BPA. There are 33 signs around the car park site. The operator has provided photographs of signs around the site. They have provided close up photographs of the signs, which I am satisfied they match those in the car park. It is fair to assume the driver of the vehicle would have had plenty of opportunity to read the signs.
Proof of planning consent for current parking conditions, chargeable regime and ANPR system; POPLA’s remit is to establish if a Parking Charge Notice has been issued correctly by the operator in accordance with the conditions of the contract. The operator having the relevant planning permission does not have an impact on the appellant’s ability to adhere to the terms and conditions of the car park. If the appellant has concerns about the site having the correct planning permission in place, he should raise this with his local council.
Not a genuine pre estimate of loss; The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.
Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “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.” Having considered the decision of the Supreme Court,
I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. As the appellant has remained on the site for two hours and not made payment to park, he has not met the terms and conditions of the car park. Accordingly, I must refuse this appeal.
I have had a surprising result from POPLA against Parking Eye saying that my appeal was unsuccessful. This is the first time I have lost at POPLA. What is the next step now? I know I don't have to pay, but will Parking Eye keep hounding me or will they go away if I keep ignoring them? If there a way to appeal the POPLA decision?
I believe the result is not consistent with other POPLA decisions I have had lately.
I don't know if it's my imagination, but the POPLA assessor almost seems to be siding with the parking company. She is even satisfied that the operator has fully adhered to the Protection of Freedoms Act 2012!
Here is the full decision:
DecisionUnsuccessful
Assessor NameCarly Law
Assessor summary of operator case
The operator’s case is that the Parking Charge Notice (PCN) was issued as the appellant’s vehicle was on site for two hours and two minutes, without making payment to park.
Assessor summary of your case
The appellant has raised several grounds for appeal. These are as follows:
1. Not a genuine pre estimate of loss – An offer of parking for a set sum was made in return for payment. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable.
2. Contract with the landowner – The appellant states that the operator does not own nor have any interest or assignment of title of the land in question. As such, he does not believe that the operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. The appellant says that he requires sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner.
3. Notice to Keeper not properly given under POFA 2012 – no keeper liability: The appellant states that this was a Pay and Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the Parking Charge Notice (PCN). He says that due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed. The appellant states that the Notice to Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay. It does not create any certainty of terms
4. Unreliable, unsynchronised and non-compliant Automatic Number Plate Recognition (ANPR) system; Under paragraph 21.3 of the British Parking Association’s (BPA) Code of Practice (CoP), parking companies are required to ensure ANPR equipment is maintained and is in correct working order. The appellant states that they require the operator to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. He states that as the parking charge is founded entirely on two photos of the his vehicle entering and leaving the car park at specific times, it is vital that the operator produces evidence in response to these points.
5. ANPR usage: Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.'
6. Unclear and non-compliant signage, forming no contract with driver; The appellant states that due to their awkward position and the barely legible size of the small print, the signs in this car park are very hard to read. He contends that the signs and any core parking terms that the operator are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice.
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system; The appellant states that some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. He wants the operator to provide proof that it has planning consent.
Assessor supporting rational for decision:
The operator has provided me with photographic evidence of the terms and conditions as displayed throughout the site, which state “Parking tariffs apply 24 hours a day, 7 days a week, You can purchase additional time (if required) at the payment machines or by phone before leaving” and “Failure to comply with the terms and conditions will result in a Parking Charge of: £100”.
The appellant has raised several grounds for appeal. I have addressed each of these below:
Contract with the landowner: ParkingEye have produced a witness statement, signed by a representative of the landowner, stating that the operator had the appropriate authority of the landowner to operate in the car park on the date in question.. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. This meets the criteria set out in the BPA Code of Practice, section 7.
Notice to Keeper; I have reviewed the Notice to Keeper and I am satisfied that the operator has fully adhered to the Protection of Freedoms Act 2012.
Unreliable, unsynchronised and non-compliant Automatic Number Plate Recognition (ANPR) system; The British Parking Association audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate. Independent research has found that the technology is generally accurate. As the appellant is advising he believes that the ANPR system is incorrect, I would expect him to provide evidence to demonstrate this.
ANPR usage: I note the appellant says “Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.' While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park. If the appellant had concerns about the validity of the signage and did not feel that, as a result, they could not comply with the terms and conditions in force, they had the opportunity to reject the contract by not parking in the car park..
Unclear and non-compliant signage, forming no contract with driver; I am satisfied the signs meet the standards set out by BPA. There are 33 signs around the car park site. The operator has provided photographs of signs around the site. They have provided close up photographs of the signs, which I am satisfied they match those in the car park. It is fair to assume the driver of the vehicle would have had plenty of opportunity to read the signs.
Proof of planning consent for current parking conditions, chargeable regime and ANPR system; POPLA’s remit is to establish if a Parking Charge Notice has been issued correctly by the operator in accordance with the conditions of the contract. The operator having the relevant planning permission does not have an impact on the appellant’s ability to adhere to the terms and conditions of the car park. If the appellant has concerns about the site having the correct planning permission in place, he should raise this with his local council.
Not a genuine pre estimate of loss; The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.
Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “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.” Having considered the decision of the Supreme Court,
I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. As the appellant has remained on the site for two hours and not made payment to park, he has not met the terms and conditions of the car park. Accordingly, I must refuse this appeal.
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Comments
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PE wont "go away" , they issue tens of thousands of court claims per annum and have up to 6 years to demand payment, including court
you can expect them to chase up the alleged debt and can expect a court case if its not paid
of all the parking companies to be involved with, PE are the most litigious0 -
WHF
"An operator does not need to provide a full contract due to this containing commercially sensitive information."
"The British Parking Association audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate."
" 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.' While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park."
"I am satisfied the signs meet the standards set out by BPA. "
"While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court."
other idiosyncratic / nonsensical / dubious statements are available ...
again WHF is going on at POPLA and who does the training ?
how can this be allowed to go on ?
as redx said you can expect further crap from parkinglie ......
forum members will advise as to likely success at a small claims court ......
good luck
Ralph:cool:0 -
The BPA / POPLA are well past their sell by date and can no longer to be seen as a fair system or trustworthy0
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it seems to me that with all these terrible failures at popla, that the mailbag for the ISPA , Nicola Mullaney , needs filling with detailed complaints about these matters and the lack of a further LEAD ADJUDICATOR assessment
otherwise, you have the right to defend yourself in court, I suggest you exercise that right , but start getting your ducks in a row now, and a popla complaint is one of the first steps, asking for a reassessment by a lead adjudicator, then an ISPA complaint0 -
https://forums.moneysavingexpert.com/discussion/comment/70366762#Comment_70366762
You need to complain to POPLA by email being careful not to criticise the decision as 'wrong' but picking out that the part quoted there is at odds with all other POPLA decisions seen in the public domain in 2016 on that exact same appeal point.
For consistency, the decision should have been that the appeal was upheld in your favour because the Assessor has admitted that the signs DO NOT say 'what the ANPR data will be used for'. This specific finding (below) erred and is so much at odds with other POPLA decisions that the case will be the subject of a formal complaint to ISPA and the BPA if not fairly reviewed by another Assessor or the Lead Adjudicator, due to the unfairness and inconsitency of dismissing an appeal point which has won POPLA appeals v ParkingEye several times recently:While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park. If the appellant had concerns about the validity of the signage and did not feel that, as a result, they could not comply with the terms and conditions in force, they had the opportunity to reject the contract by not parking in the car park..PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks very much for all your helpful replies. You have given me some hope. I will send POPLA and ISPA an email and will let you all know what they come back with.0
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"The British Parking Association audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate."
So did Parking Lie provide the up to date audit or history of this in their evidence?
"Independent research has found that the technology is generally accurate."
"Generally accurate" what exactly does this sloppy description actually mean?
A very flawed outcome in my view, this assessor hasn't the feigntest idea of what evidence is! They just seem to have read the BPA code of practice and believed because they have said it, it must be true!0 -
Surely there is now sufficient double dipping evidence to prove that PE's ANPR cameras are not fit for purpose.You never know how far you can go until you go too far.0
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POPLA have misapplied Beavis. If you check the judgement and the Appleal Court judgement before it, it explicitly EXCLUDES pay-per-hour type car parks (which I think this was [STRIKE]- you really could have helped yourself an awful lot by breaking the POPLA text into readable paragraphs, it really is completely unreadable as it stands[/STRIKE]). Therefore they have no case under Beavis, and are back to GPEOL only.0
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Might be an idea to post an email on here before sending it. Will need wording carefully to reduce the risk of a simple fob-off.
Also, your username looks like a car reg number, I trust it's not yours?0
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