Britannia Parking - Appeal Rejected

Coupon-mad

I'm wondering now if that is the end of the process?

What, even thought Britannia showed no NTK and no evidence of who was driving?

If that's true, draft a short COMPLAINT to POPLA about the Assessor erring by not considering first, whether they knew who was driving or to look for a NTK.

Are you sure there was no NTK in the PPC's evidence?

IamDan

Below is the assessors decision:


When parking on private land, it is the responsibility of the motorist to ensure they adhere to the terms and conditions of the car park. The operator has provided photographs of the signage explaining the terms and conditions, as displayed on signs throughout the site. The signage states: “PAY ON ARRIVAL..RESTRICITION AND CHARGES APPLY AT ALL TIMES…SEE MAIN TARIFF BOARD BY PAYMENT MACHINE FOR DETAILS…£100 Parking Charge Notice may be issued to all vehicles which…Fail to purchase a valid ticket, voucher or permit”. The operator has provided a photograph of the tariff board at the site. The tariff board states: “UP TO 1 HOUR £1.50…UP TO 2 HOURS £3.50…ALL DAY £5.00…Please enter the FULL and correct vehicle registration into the payment machine when paying the tariff”. The operator has provided images from the Automatic Number Plate Recognition (ANPR) system, which shows the appellant’s vehicle, WF64 VRJ, entered the site at 12:45 and exited the site at 14:32 on 29 June 2018. A total stay of one hour and 46 minutes. The operator has provided a list of the vehicle registrations it received payment for on 29 June 2018, the appellant’s vehicle is not on this list. The operator has issued the PCN as the motorist failed to validate their stay or make a valid payment. The appellant say that the PCN is not compliant with the PoFA 2012 and it cannot hold the keeper liable for the PCN. The appellant says the operator has not shown that the individual it is pursuing is the driver of the vehicle. Firstly, as the driver has not been identified within the appeal to POPLA or to the operator, I need to ensure that the operator has shown strict compliance with PoFA 2012. PoFA 2012 is used to transfer liability from the driver of the vehicle to the keeper of the vehicle when the driver has not been identified. I have reviewed the Notice to Keeper and I am satisfied that the operator has shown strict compliance with PoFA 2012 and as such, liability has been transferred to the keeper of the vehicle. The appellant says the signs in the car park are not prominent, clear of legible from all parking spaces and there is insufficient notice of the PCN amount. Ultimately, it is the responsibility of the motorist to ensure that when they enter private land, they have understood and complied with the terms and conditions displayed throughout the site. After reviewing the photographs that the operator has provided, I determine that the signage at the site is sufficient to make motorists aware that they are required to pay for their parking and how much they are required to pay. The signage also makes motorists aware of the consequences for failing to comply. If the appellant was in disagreement with the terms and conditions of the site or felt that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining on the car park, the appellant accepted the terms and conditions displayed throughout the car park and entered into a contract with the operator. The operator has demonstrated that the appellant failed to make a payment for their parking. 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.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the British Parking Association (BPA) Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. POFA 2012 defines “adequate notice” as follows: “(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”. Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, 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. The appellant says there is no evidence of landowner authority. The operator has provided a witness statement signed on behalf of the landowner. After assessing the witness statement, I am satisfied that the operator had the landowner’s authority to enforce the terms and conditions of the car park at the time of the contravention. The appellant says the operator has failed to comply with data protection. If the appellant has genuine concerns about data protection, they may wish to raise these with the Information Commissioner’s Office (ICO). POPLA’s remit is to establish if a parking contract was offered, agreed and breached. It is outside of POPLA’s remit to assess concerns about data protection. I conclude that the appellant breached the terms and conditions by failing to pay for their parking. As the operator has demonstrated that it issued the PCN correctly, I must refuse this appeal.

IamDan

The point I raised regarding only showing the coin machine transactions and not the pay by phone payments was totally missed. The annoying thing is that my partner paid via the app but incorrectly selected the wrong location on the day. Human error!

LoneStarState

Would the tariff have been the same for both car parks?


There may be scope for a rectification notice here to the data protection officer of Britannia although I'm not entirely sure.


One of the more experienced regulars might impart their wisdom.


ALSO, please break up the assessor's response into paragraphs as best as you can. Other contributors won't bother reading when it's a slab of text like that and could lead to you losing out on some advice.

Coupon-mad

I can't even begin to read that, can you put ten paragraph breaks in please - and answer my earlier question? You said there was no NTK, yet the Assessor said:

I have reviewed the Notice to Keeper

IamDan

Pola Decision is below:


When parking on private land, it is the responsibility of the motorist to ensure they adhere to the terms and conditions of the car park. The operator has provided photographs of the signage explaining the terms and conditions, as displayed on signs throughout the site. The signage states: “PAY ON ARRIVAL..RESTRICITION AND CHARGES APPLY AT ALL TIMES…SEE MAIN TARIFF BOARD BY PAYMENT MACHINE FOR DETAILS…£100 Parking Charge Notice may be issued to all vehicles which…Fail to purchase a valid ticket, voucher or permit”. The operator has provided a photograph of the tariff board at the site. The tariff board states: “UP TO 1 HOUR £1.50…UP TO 2 HOURS £3.50…ALL DAY £5.00…Please enter the FULL and correct vehicle registration into the payment machine when paying the tariff”.


The operator has provided images from the Automatic Number Plate Recognition (ANPR) system, which shows the appellant’s vehicle, WF64 VRJ, entered the site at 12:45 and exited the site at 14:32 on 29 June 2018. A total stay of one hour and 46 minutes. The operator has provided a list of the vehicle registrations it received payment for on 29 June 2018, the appellant’s vehicle is not on this list. The operator has issued the PCN as the motorist failed to validate their stay or make a valid payment. The appellant say that the PCN is not compliant with the PoFA 2012 and it cannot hold the keeper liable for the PCN. The appellant says the operator has not shown that the individual it is pursuing is the driver of the vehicle. Firstly, as the driver has not been identified within the appeal to POPLA or to the operator, I need to ensure that the operator has shown strict compliance with PoFA 2012. PoFA 2012 is used to transfer liability from the driver of the vehicle to the keeper of the vehicle when the driver has not been identified. I have reviewed the Notice to Keeper and I am satisfied that the operator has shown strict compliance with PoFA 2012 and as such, liability has been transferred to the keeper of the vehicle.


The appellant says the signs in the car park are not prominent, clear of legible from all parking spaces and there is insufficient notice of the PCN amount. Ultimately, it is the responsibility of the motorist to ensure that when they enter private land, they have understood and complied with the terms and conditions displayed throughout the site. After reviewing the photographs that the operator has provided, I determine that the signage at the site is sufficient to make motorists aware that they are required to pay for their parking and how much they are required to pay. The signage also makes motorists aware of the consequences for failing to comply. If the appellant was in disagreement with the terms and conditions of the site or felt that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator.


By remaining on the car park, the appellant accepted the terms and conditions displayed throughout the car park and entered into a contract with the operator. The operator has demonstrated that the appellant failed to make a payment for their parking. 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.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the British Parking Association (BPA) Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. POFA 2012 defines “adequate notice” as follows: “(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”. Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist.


Therefore, 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. The appellant says there is no evidence of landowner authority. The operator has provided a witness statement signed on behalf of the landowner. After assessing the witness statement, I am satisfied that the operator had the landowner’s authority to enforce the terms and conditions of the car park at the time of the contravention. The appellant says the operator has failed to comply with data protection. If the appellant has genuine concerns about data protection, they may wish to raise these with the Information Commissioner’s Office (ICO).


POPLA’s remit is to establish if a parking contract was offered, agreed and breached. It is outside of POPLA’s remit to assess concerns about data protection. I conclude that the appellant breached the terms and conditions by failing to pay for their parking. As the operator has demonstrated that it issued the PCN correctly, I must refuse this appeal.

IamDan

They have ignored my point regarding the PaybyPhone App payments. My partner actually used the App to pay, however they selected the incorrect location code!


Human Error!!

IamDan

Yes, I believe the tariff is exactly the same for both carparks - both central Newcastle.

IamDan

Sorry I have copied that in error. I did receive a NTK through the post 6 days after the contravention.

Coupon-mad

IamDan wrote: »

They have ignored my point regarding the PaybyPhone App payments. My partner actually used the App to pay, however they selected the incorrect location code!
Human Error!!

OK so who is the phone app provider, PayByPhone?

The phone owner needs to send them (PBP) a RECTIFICATION NOTICE under the GDPR, telling them that the wrong location code was entered and this is a formal Rectification Notice under the GDPR, rectifying the error.

The VRN was xxx xxxx, and the date/time of payment was xx/xx/18 at xxpm, and it was allocated inaccurately to xxxx location code. The accurate data should read xxxx as the correct location code. The data subject requires that PBP's Data Protection Officer rectifies the known inaccurate data and allocates the payment to the right code and recipient.

If they refuse they must reply and explain why, and then the data subject will complain to the Information Commissioner's Office about refusal to rectify inaccurate data.

The failed POPLA appellant sends the SAME sort of Rectification Notice under the GDPR to Britannia, only adding the PCN number so they can identify the case easily, and changing the wording to make sense (i.e. obviously remove the bit asking PBP to reallocate the money!).

You both then wait for replies.

Both companies MUST surely have a data concerns/privacy page on their websites with contact details, send the RNs there, ideally by email, and keep copies. Don't just post a random letter Royal Mail to any old address, look at their Privacy policy page.

The idea is to leave Britannia with no legitimate interest to pursue the charge, as they have to rectify data that's known to be inaccurate, and they cannot merely sue someone as 'punishment' for an error that they were told about, and were required to correct at no cost, way back!

The final step will be an ICO complaint. Don't ask what the ICO is (explained above).

Search the forum for RECTIFICATION NOTICE and read some done recently.