Win - Cowherds Pub Southampton - Euro Car Parks

soton_25

So you know how you feel when you get a win, but it is not for the reasons you anticipated, and the assessor appears to have ignored a thorny Common Land meets Byelaws segement of your appeal entirely... that's me that is.

Decision

Successful

Assessor Name

Grahame Hill

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) to the keeper of the vehicle for vehicle not authorised to park.

Assessor summary of your case

The appellant’s case is that • The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself • The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge • No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice • No Evidence of Period Parked - NtK does not meet PoFA 2012 requirements • Vehicle Images contained in PCN: BPA Code of Practice – noncompliance • The ANPR System is Neither Reliable nor Accurate • The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for The appellant has provided evidence to support the appeal.

Assessor supporting rational for decision

The appellant has identified as the driver on the day of the parking event. As such, I am considering the matter of driver liability. When entering onto a privately managed car park where terms and conditions apply, motorists form a parking contract with the operator by deciding to park on the land. The signage in place sets out the terms and conditions of the contract. In this case, the operator has provided photographic evidence of the signage in place in the car park. The operator has also provided Automatic Number Plate Recognition (ANPR) images of the vehicle, entering the car park at XX , and exiting at XX (day time btw), totalling a stay of 55 minutes. The operator has provided a printout showing that the motorist’s vehicle registration number does not appear in their systems on the date of the event. As such a PCN has been issued. The appellant has raised a number of grounds in a template format that I will address separately or grouped together as appropriate. • The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge • No Evidence of Period Parked - NtK does not meet PoFA 2012 requirements In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act (PoFA) 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle. • No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice We accept witness statements from operators to confirm they have landowner authority to operate at a site, and we do this because it is only a small part of confirming on the balance of probabilities that they have landowner authority. The fact that they have signs, camera, personnel, etc, at the site also supports that proof. In this case, the operator has supplied a copy of the landowner authorisation. As such, I am satisfied they are authorised to issue charges on this site. • Vehicle Images contained in PCN: BPA Code of Practice – noncompliance • The ANPR System is Neither Reliable nor Accurate. The site is managed by ANPR systems which simply take images of vehicle registration numbers entering and exiting a site; to calculate the total amount of time on site. In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate. Independent research has found that the technology is generally accurate. Unless POPLA is presented with sufficient evidence to prove otherwise, we work on the basis that the technology was working at the time of the alleged improper parking As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the appellant’s vehicle was elsewhere for this duration of time. However, as the appellant has not provided evidence to demonstrate otherwise, I will work on the basis that the technology is accurate. • The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for Having reviewed the signage, it clearly states’ we are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit’. This plainly states what the Automatic Number Plate Recognition (ANPR) data will be used for. •The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself 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 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “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.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. 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. Having addressed the appellants grounds, I will now assess the parking event. On this car park all vehicles are required to register their details within the premises. The appellant has not addressed this fact in their grounds. They have not stated that they did or did not enter the registration. Consequently, the burden of proof falls upon the operator. I would expect the operator to provide POPLA with clear, sufficient evidence to demonstrate that the Parking Charge Notice (PCN) has been issued correctly. Although the operator, states the vehicle was not registered on the day, I can find no evidence of that fact. I would expect to find a whitelist or log to show that the vehicle had not registered on the day. No such log has been included. Whilst the appellant’s grounds have not covered the parking event or the evidence of infringement, the operator has failed to provide sufficient evidence to demonstrate that the Parking Charge Notice (PCN) has been issued correctly. Consequently, I must allow this appeal.

soton_25

Anyway I have a 100% record so far 2 out of 2. But still scratching my head on this one. 
The cynic in me, wonders if they ignored my pointing out 1/5th of the car park is on Common Land and therefore subject to byelaws as a matter of convenience or expediency, given how thorny that could get for POPLA and/or the car park operator. Common Land boundaries and Byelaws 1967 update can be found online at the southampton.gov website. POPLA certainly were helpful to the appealant in their determination of the facts, which avoided any need for further consideration. So for anyone else with no fault in this location, this Common Land Byelaw defence is untested. 
PS. At no point was the driver identified. I think the judgement has a typo. 

D_P_Dance

A win is a win.  In order to persuade the pub to get rid of the scammer write it uo on their Facebook and Tripadvisor pages and any good pub/beer guides they feature in, if they want to sell their ale they must not rip their customers off in their car park.

soton_25

Yeah, but I wanted to win "good". Bit greedy me. Was well up for the Common Land uncertainty, Byelaws might apply, Not Relevant Land = slam dunk defence. Instead the assessor (creative soul) let's em wriggle off. Perhaps my masochistic side might go back to the location for "another go". Just kidding, who needs that hassle.
As an aside; the comment the signage is adeqaute is twaddle for SOOOO many reasons. Entry sign hidden by bush as show in operator's evidence pack plus old signage still in place in the location from 1980-90s, amongst other non-compliances.

Umkomaas

Although the operator, states the vehicle was not registered on the day, I can find no evidence of that fact. I would expect to find a whitelist or log to show that the vehicle had not registered on the day. No such log has been included.

How can such a negative be proved?  How does a PPC create a log to show the vehicle had not registered on the day?

Bit greedy me. Was well up for the Common Land uncertainty, Byelaws might apply, Not Relevant Land = slam dunk defence. Instead the assessor (creative soul) let's em wriggle off. 

If you wanted that tested you should have entered a one-point only appeal. Once one appeal point has been upheld by POPLA, neither the current POPLA nor their predecessors (London Councils) have ever dealt with any of the other appeal points. 

soton_25

I know Unkomaas. Benefit of hindsight could have done a brave one point appeal. Easy to think that now but was hedging bets at the time. Appreciate your support though. 

soton_25

Yeah good point though. How on earth does a PPC prove that. Interesting point of rebuttal for others. I quite like my assessor... A pragmatist

Coupon-mad

Although the operator, states the vehicle was not registered on the day, I can find no evidence of that fact. I would expect to find a whitelist or log to show that the vehicle had not registered on the day. No such log has been included.

Dumb dumb dumb dumb dumb...!!