Stopping not parking

Paul_Parker

Here's a reformatted version as requested (arbitrary decisions on placement of paragraph breaks are mine):

Decision
Unsuccessful
Assessor Name
Ashlea Forshaw
Assessor summary of operator case
The operator has issued a Parking Charge Notice (PCN) for the following reason, “stopping in a no stopping area”.
Assessor summary of your case

The appellant has provided a document to POPLA which outlines their grounds of appeal. The grounds are as follows:

• The incident does not involve parking

• Signs in this car park refer to ‘parking’ not ‘stopping’.

• The signs in this car park are not prominent.

• No grace period.

• No evidence of landowner authority has been provided.

To support this appeal, the appellant has provided images of the car park and the signs in situ. The appellant has also provided a link within his appeal to a parking cowboys website, which will not be considered.

Assessor supporting rational for decision

The appellant has appealed as the keeper of the vehicle. Therefore, I will be assessing keepers liability in this case.

For the operator to successfully transfer liability from the driver to the registered keeper of the vehicle, the parking operator must issue a notice to keeper using the Protection of Freedoms Act (PoFA) 2012. Under PoFA 2012, transfer of liability occurs after ‘28 days beginning with the day after the date the notice is given’. Having looked at the PCN issued, it states, “You are advised that if, after 29 days from the date given, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you”. This notice therefore complies with PoFA 2012 and as such, the keeper of the vehicle can now be held liable for any unpaid parking charges. The operator has provided evidence of the signage located within this car park. The terms and conditions displayed at the site state the following: “ACCESS NOTICE, THIS AREA IS UNDER CCTV SURVEILLANCE… NO STOPPING, PARKING OR WAITING. DO NOT PARK ON DOUBLE RED LINES… £100 Charge”.

The operator has issued a PCN to the motorist for the following reasons, “stopping in a no stopping area”. The operator has provided camera images of the appellant’s vehicle entering and exiting this car park on the date of the event. The images were captured by the Automatic Number Plate Recognition (ANPR) cameras and show the appellant has entered the site at 10:32. The appellant is then seen stopping in a no stopping area whilst a passenger exited the vehicle and then the vehicle is seen exiting the car park at 10:33. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have been breached.

I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. The appellant has raised more than one ground of appeal to POPLA. Therefore, I will address each ground on its own individual merit.

• The incident does not involve parking

The appellant has raised PoFA in this instance stating that PoFA does not cover ‘stopping’. Whilst I appreciate that the appellant has referred to different paragraphs of PoFA, I do not consider this to bear any relevance to the appellant’s appeal and the reason a PCN was issued. A PCN was issued for stopping in a no stopping area. From the images provided, there are a number of signs which states that stopping on red lines is not permitted and that a PCN will be issued if these circumstances. The appellant is seen entering the site, stopping on red lines, a passenger then exits the vehicle and then the appellant exits the site. It is clear from this evidence that the appellant has breached the terms of the site as he has stopped in an area where he was not permitted to do so. The signs do not just refer to ‘parking’ but to ‘stopping’ also. POPLA will refer to PoFA 2012 when it comes to transferring liability from a driver to a keeper of a vehicle. We have used POPLA in this instance, however, we will not be applying to PoFA 2012 when it comes to stopping in a no stopping area.

• Signs in this car park refer to ‘parking’ not ‘stopping’.

As stated above, the signs do refer to stopping as well as parking. I must refer the appellant back to the evidence pack, viewing images ‘EV5A, EV5B, EV6A, EV6B, EV6C, EV6D, along with the image EV4C, which shows the area he stopped in. As can be seen on the images, he parked in a red route, next to two signs which advised he was not allowed to stop in this area.

• The signs in this car park are not prominent.

I will be referring to sections within the British Parking Association (BPA) code of practice, which provides information on signage and the requirements that must be met. Section 19.1 of the BPA code of practice states, “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”. Following review of the signage at this site, I can see that there is a sign displayed on a lighting pole as you enter the site and is placed within the no stopping zone area. This can be seen clearly when entering the site. Further, there are other signs placed lower down on the pedestrian walkway. The appellant stopped directly next to two of those signs and therefore, had the opportunity to read the information. I consider the signage to have met the requirements of the BPA code of practice.

I also note that the appellant has raised ‘Lord Dennings Red Hand Rule’ and ‘Beavis vs Parking Eye’. In this case, I will only be referring to ‘Beavis vs Parking Eye as ‘Lord Dennings Red Hand Rule’ does not apply in POPLA and is not a case we would comment on. 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 Section 19 of the BPA Code of Practice. Section 19 has been considered during this appeal and has been explained above. I am satisfied that section 19 has been met.

In addition to this, I note that within the Protection of Freedoms Act 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. The Act then moved on to define “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 decision, 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.

• No grace period.

The appellant has referred to section 13.1 of the BPA Code of Practice. Section 13.1 states, “The driver must have the chance to consider the terms and conditions before entering into a ‘parking contract’ with you. If, having had the opportunity, the driver decides not to park but chososes to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes”. The appellant says that no such chance was given in this case. He says that the vehicle arrived, stopped, set down passengers, and left in a matter of seconds rather than minutes. Whilst I note the appellant’s comments, this area is simply a no stopping area. Regardless of how long the appellant remained in this area, he was not permitted to do so at any point. Therefore, he will not be granted a grace period in this instance.

• No evidence of landowner authority has been provided.

Section 7 of the British Parking Association (BPA) code of practice states the following: “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has provided a copy of the contract in place. Having assessed this against section 7, I am satisfied that the operator has permission to operate on this land and issue charges where it is deemed necessary. The contract is valid for a period of 12 months and will automatically renew unless either party decides to cancel. As there is no evidence to suggest that either party did not wish to continue with the contract, I am satisfied that the contract was still valid on the date of the event.

The appellant has provided further comments to POPLA following review of the operator’s case file. However, the comments made have already been addressed individually within my report. Therefore, I will not provide any further comments on this. Ultimately, the appellant has stopped in a no stopping area and therefore, has failed to adhere to the terms of the site. As such, I must conclude that the PCN has been issued correctly and so, this appeal must be refused.

nosferatu1001

"The appellant has appealed as the keeper of the vehicle. Therefore, I will be assessing keepers liability in this case."
Then they need to consider this was not a parking event but a stopping event - they confirm that
POFA only applies to parking. 
There is no keeper liabilty for stopping
Complaint to POPLA. 

Paul_Parker

nosferatu1001 said:

Complaint to POPLA. 

Any tips on what to say?

nosferatu1001

Yes - an expanded version of the above with you xref to POFA and the fact it covers parking on private land
As they agree that stopping isnt parking, they have no choice but to decide a keeper has no liability. 

Fruitcake

Paul_Parker said:

Bingo!

EV2 stipulates "a parking charge may only be issued to a vehicle which parks in contravention..."; no mention of "stopping". DS have no contractual entitlement to charge for mere stopping.

[Ev2 is the contract with the landowner]

Complain to the PoPLA lead adjudicator, and to the BPA, that PoPLA have upheld an appeal where the scammer by their own admission, does not have a contract to issue a parking charge for anything other than a parking contravention.

Even the PoPLA assessor has stated this was a case of stopping, not parking.

Castle

Perhaps POPLA need to be reminded what the first "P" stands for in their name!

Coupon-mad

 The signs do not just refer to ‘parking’ but to ‘stopping’ also. POPLA will refer to PoFA 2012 when it comes to transferring liability from a driver to a keeper of a vehicle. We have used POPLA in this instance, however, we will not be applying to PoFA 2012 when it comes to stopping in a no stopping area.

Do what now?

Paul_Parker

Fruitcake said:

Complain to the PoPLA lead adjudicator, and to the BPA

I want to take the time to get this right.
How do I contact "the PoPLA lead adjudicator" - there is just a single contact form on their website.
Is there precedent for PoPLA overturning their decision upon a complaint? Any suggested wording?

Paul_Parker

In the meantime I have predictably received a "reminder" letter from ParkWatch. Their language on stopping v. parking is muddled (emboldening in original):

"your vehicle... was parked in a manner whereby the driver became liable for a parking charge at One Stop Centre, Birmingham, B42 1AA - Red Route ... the reason we issued the PCN to the vehicle [sic] is Stopping in a No Stopping Area... Those drivers who break the terms and conditions of parking are liable... unpaid parking charge..."
They then threaten court action and go on to say "The overdue charge will increase to £170.00 in the first instance of further action."

Half_way

Who's car park was this/where was this?