POPLA denied appeal

Khaggis

Hi All, 
I've only just stumbled upon this forum, but i wish i had sooner, the advice you give is brilliant, however unfortunately i was unable to follow it as i was unaware of it, which has resulted in a denial of appeal from both Parking Eye and POPLA. this is the reply i received from POPLA which pretty much covers everything. It's also probably worth noting that from what i can see, parking eye have not given me any details of the actual landowner so i have been unable to contact them to see if they will remove the fine for me, i'd be happy to share what i've received with anyone that can help.

Anyway, here's POPLA's rationale: 

Decision

Unsuccessful

Assessor Name

Niall Whittaker

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to not purchasing the appropriate parking time or remaining at the car park for longer than permitted.

Assessor summary of your case

The appellants case is that there was originally an issue as their friend paid for the ticket for them, inputting their registration plate as XXXXXX0 instead of the correct XXXXXXO. The appellant advised they received a parking charge notice from parking eye stating that they had not paid for their entire duration, which did not seem right. Upon investigating they noticed the above error and contacted the operator to appeal the incident. They received an email acknowledging the payment, but because they left shortly after the 1-hour cut-off time, they would still be subject to a £100 charge. The appellant advised the letter states they left at 14:57 and the ticket states they paid at 13:49 with an hour of parking. The appellant said they were back in the carpark within the hour, but by the time they had put away their shopping and set up their satnav, they left slightly past this. The appellant advised that as parking eye is a member of the British Parking Association, its code of practise section 13.3 states "Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN." As the appellant was only 8 minutes into their "grace period" they feel they should not be receiving a fine for this. The appellant added that additionally, 8 minutes in a 1GBP per hour charge works out at around 21p. In a car park that had multiple free spaces available, they believe a 100GBP parking charge is completely unfair and disproportionate to their loss of earnings. The appellant provided photographic evidence of their parking ticket to support the appeal.

Assessor supporting rational for decision

The appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place. The signage states “Tariff Payable at Machine or By Phone. Parking Tariffs Apply. Per Hour - £1.00. How To Pay: At the payment machine at any time before exiting the car park. Your full, correct vehicle registration will be required. Failure to comply with the terms and conditions will result in a parking charge of £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 13:46, and exiting at 14:57, totalling a stay of 01 hour and 11 minutes. The operator has issued the Parking Charge Notice (PCN) due to not purchasing the appropriate parking time or remaining at the car park for longer than permitted. The operator provided evidence of a search for the appellants vehicle registration within the payment system, this shows a £1.00 payment was made which allows up to 1 hour of parking. Having considered the evidence, I am satisfied there is a valid contract and it has been breached. However, before concluding, I need to consider whether the appellant’s grounds of appeal challenge the validity of the operator’s claim. The appellants case is that there was originally an issue as their friend paid for the ticket for them, inputting their registration plate as XXXXXX0 instead of the correct XXXXXXO. The appellant advised they received a parking charge notice from parking eye stating that they had not paid for their entire duration, which did not seem right. Upon investigating they noticed the above error and contacted the operator to appeal the incident. They received an email acknowledging the payment, but because they left shortly after the 1-hour cut-off time, they would still be subject to a £100 charge. The PCN has been issued as the tariff purchased was insufficient and did not cover the total parking time. As a result of this, I will not consider the appellants advised issue with the registration as it has no bearing on the outcome of this appeal as it was not the reason for the Parking Charge Notice. The appellant advised the letter states they left at 14:57 and the ticket states they paid at 13:49 with an hour of parking. The appellant said they were back in the carpark within the hour, but by the time they had put away their shopping and set up their satnav, they left slightly past this. The appellant advised that as parking eye is a member of the British Parking Association, its code of practise section 13.3 states "Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN." As the appellant was only 8 minutes into their "grace period" they feel they should not be receiving a fine for this. The appellant has made reference to section 13.3 of the British Parking Association (BPA) Code of Practice. Section 13.3 states that “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.” Section 13.6 of the BPA Code of Practice goes on to state: “Neither a consideration period or a grace period are periods of free parking and there is no requirement for you to offer an additional allowance on top of a consideration or grace period.” The signage on sites states that payment can be made at any time prior to exiting the car park. The parking time begins upon entry to the car park, and not from the time the parking ticket is purchased. As payment can be made any time prior to exiting, it is up to the motorist to calculate the duration of their stay and pay the appropriate tariff amount prior to leaving the car park. The site in question uses Automatic Number Plate Recognition (ANPR) cameras to capture vehicles entry and exit times and calculate the duration of stay. In the appellants case, the total duration of the stay was 1 Hour and 11 Minutes. This is one minute over the allocated 10 minute grace period and as set out in section 13.6 above, operators are not required to offer any additional time to this grace period. As a result of this, the appellant would have been required to pay for an additional hour as they exceeded the 1 hour tariff they paid for and did not pay for the appropriate parking time or remained at the car park for longer than permitted. The appellant added that additionally, 8 minutes in a 1GBP per hour charge works out at around 21p. In a car park that had multiple free spaces available, they believe a 100GBP parking charge is completely unfair and disproportionate to their loss of earnings. The appellant has told us in their response that they consider the charge does not reflect the loss to the landowner and is therefore not a genuine pre-estimate of loss. This matter was considered at length by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. In this case, the Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists. This “legitimate interests” approach moved away from a loss-based analysis of parking charges: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage. While the specific facts of the case concerned a free-stay car park where the motorist had overstayed, I consider the principles that lie behind the decision remain the same. Taking these principles into account, I am not going to consider whether the loss is a genuine pre-estimate of loss or whether it reflects a correct loss to the landowner. Rather, I am going to consider the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore allowable. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant did not purchase the appropriate parking time or remained at the car park for longer than permitted, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Redx

The genuine pre estimate of loss argument did indeed disappear 6 years ago in the Beavis case , so was never an argument , plus Parking Eye won that argument so the matter was ALWAYS going to lose

The issues seem to be grace periods and not purchasing enough time

The BPA CoP clause 13 covers grace periods , hence why you lost out over 1 minute

A court case involving NCP and the Inland revenue stated that the time of purchase when the green button is pressed is the start of the parking time , not on entry , so an interesting legal argument if they say that it starts on entry. Which one is correct ??

The old BPA CoP 2018 allowed for 2 grace periods , one before after entry , one at the time of leaving , which would have covered your case

If you fail to pay , then PE may issue a court claim , where a judge can decide , within 6 years

Khaggis

would your suggestion be to not pay and just ignore it then?

Redx

Khaggis said:

would your suggestion be to not pay and just ignore it then?

That is your decision to make , not mine

It's either pay £100 now or possibly argue your Defence to a judge within 6 years

Your choice , your decision

Khaggis

Redx said:

Khaggis said:

would your suggestion be to not pay and just ignore it then?

That is your decision to make , not mine

It's either pay £100 now or possibly argue your Defence to a judge within 6 years

Your choice , your decision

Understandable, thank you! Just out of curiosity, what would you do in my position? Many thanks.

Redx

I don't have all the facts , you do , in your evidence pack they submitted to Popla , nor have I seen the signs , landowner authority or anything else

So I make no concessions regarding your case , or any other , where we are not in possession of all the facts

However , I Always state that people need to complain to the landowner and try to get a cancellation , plan A , you have not done this , whereas I would have done it weeks ago

Khaggis

Redx said:

I don't have all the facts , you do , in your evidence pack they submitted to Popla , nor have I seen the signs , landowner authority or anything else

So I make no concessions regarding your case , or any other , where we are not in possession of all the facts

However , I Always state that people need to complain to the landowner and try to get a cancellation , plan A , you have not done this , whereas I would have done it weeks ago

I've been unable to locate the landowner. the only mentioning of landowner in the evidence pack i have states:

"Authority

We can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).

It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ourselves and the motorist will be enforceable by us as a party to that contract."

There are no contact or defining details of a land owner. The place in question is Alfred Place in Leicester. It's just a small car park off the high street. i tried contacting leicester council and they said its not theirs nor do they know who is the landowner. so I'm a little lost on what to do or where to go to find it.

Redx

Try reading the landowner advice posted by Umkomaas every week on here for months now

The council should be fully aware of who pays the non domestic business rates , did you ask ??

What about the Land Registry ?? They definitely know

Umkomaas

Redx said:

Try reading the landowner advice posted by Umkomaas every week on here for months now

The council should be fully aware of who pays the non domestic business rates , did you ask ??

What about the Land Registry ?? They definitely know

Here it is ......

SOME IDEAS ON DETERMINING WHO OWNS THE LAND 

©️Umkomaas 02/21 !! 🤓

1. Google searches

2. If a retail park, check on any signage which lists the on-site outlets

3. Ask retailers on the site if there is a managing agent

4. Ask retailers on the site to whom do they pay rent

5. Contact the local authority and ask who pays the non-domestic/business rate for the car park (some councils have a spreadsheet on their website)

6. Contact the local Valuation Office and ask if they know. They often have a website which might provide the information 

7. Contact The Land Registry and for around £3 they should be able to provide definitive detail

8. If you haven't already done so, give us the name of the car park, we may have seen other cases there. 

Khaggis

Umkomaas said:

Redx said:

Try reading the landowner advice posted by Umkomaas every week on here for months now

The council should be fully aware of who pays the non domestic business rates , did you ask ??

What about the Land Registry ?? They definitely know

Here it is ......

SOME IDEAS ON DETERMINING WHO OWNS THE LAND 

©️Umkomaas 02/21 !! 🤓

1. Google searches

2. If a retail park, check on any signage which lists the on-site outlets

3. Ask retailers on the site if there is a managing agent

4. Ask retailers on the site to whom do they pay rent

5. Contact the local authority and ask who pays the non-domestic/business rate for the car park (some councils have a spreadsheet on their website)

6. Contact the local Valuation Office and ask if they know. They often have a website which might provide the information 

7. Contact The Land Registry and for around £3 they should be able to provide definitive detail

8. If you haven't already done so, give us the name of the car park, we may have seen other cases there. 

Thank you all, council were useless when i asked them, i'll see if i can pay the land registry. regarding point 8, its Alfred Place in Leicester if that helps? next to the centre project and 23 wine and whiskey if youve had cases relating to there before?

Coupon-mad

No-one here would pay this. Next year and in previous years, there was (and will be again) a consideration period allowed on arrival as well as a ten minute Grace period. 

Thanks to the self-serving BPA trade body, they’ve removed that and give people who stay, ZERO TIME on arrival to find a parking space, read the signs and pay.

Isn’t it odd that we see soooo many ParkingEye PCNs where their unsynchronised in and out camera images just happen to add up to eleven minutes ‘overstay’ when the BPA CoP says that there must be a minimum of ten mins grace.

Wonder why that might be?  What a coincidence...

Anyway complain to the landowner and fight it in court.  A Judge will see the current BPA CoP for what it is.

Don’t suppose you have a dashcam or Google location enabled on your phones, which shows that in fact you were there a couple of minutes less?  People have outed ParkingEye timings to be ‘wrong’ with that sort of evidence.