POPLA - refuse the appeal

ramagates

Decision

Unsuccessful

Assessor Name

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to parked in a restricted location during prescribed hours.

Assessor summary of your case

The appellant’s case is that: • PCN is not POFA compliant, and the parking operator has not shown the keeper is liable for the charge. • Not relevant land under POFA 2012. • Misuse of DVLA data and no reasonable clause explained for requesting DVLA details. • Misleading and unclear signage so no contract formed. • No grace period given. • The amount is a penalty and not a parking charge. It is important to note that the appellant was provided the opportunity to comment on the operator’s case file, the appellant has expanded on their grounds within their comments. The appellant has provided an appeal letter as evidence to support their appeal. The above evidence will be considered in making my determination.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. Parking operators have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper. The parking operator has successfully transferred liability the registered keeper, so they are able to request the keepers’ details from the DVLA. The PCN reason is “to parked in a restricted location during prescribed hours” this accurately described the circumstances the PCN was issued for, and the reason the registered keepers’ details were requested from the DVLA. The appellant refers to byelaws. The Protection of Freedoms Act (PoFA) 2012. PoFA can only be used on relevant land. This is land which is under statutory control. Section 3 (1) © of PoFA states that PoFA can only be used on relevant land, which includes any land which the parking of a vehicle is subject to statutory control. The land in this case is not governed by byelaws and the operator is not using this to issue a penalty. Furthermore, the signage on site does not mention that the operator is using Byelaws to issue a penalty, so it is enforcing parking with the issue of a PCN and this is acceptable for them to do so. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows the signs state “…No Stopping No waiting…”. The parking operator has also provided site maps showing locations of signs at the site. Based on this evidence I am satisfied that there are sufficient signs to inform motorists of the terms and conditions of the site and the signage complies with BPA code section 19.3. I note the appellant has raised that they did not accept the operators’ conditions, but a driver does not have to read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to review these and ensure they comply at all times. Section 13.3 of the Code of Practice requires parking operators to allow the driver 10 minutes to leave if parking is permitted for a limited amount of time or on paid car parks. As parking is not permitted for a limited amount of time and it is not a paid car park the driver was not entitled to a grace period. Section 13.1 of the Code requires parking operators to allow the driver a period of 5 minutes to read the signage and decide if they are going to stay or go if the site is one where parking is permitted. As no parking is permitted at the site the driver was not entitled to a consideration period. I acknowledge the appellant states the charge is a penalty, but this has no bearing on my decision. The Supreme Court considered private parking charges in a high-profile case, Parking Eye v Beavis, and decided that a charge may have the characteristics of a penalty but was ultimately enforceable. The Court’s full judgement in the case is available online should the appellant want to read it. I acknowledge the appellant states the charge is excessive, but this has no bearing on my decision. The Supreme Court considered private parking charges in a high-profile case, Parking Eye v Beavis, and decided that a charge did not need to reflect any actual loss incurred by a parking operator or landowner. The Court’s full judgement in the case is available online should the appellant want to read it. Whilst I understand the circumstances the appellant has outlined and that they were exiting the vehicle with their disabled child, when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. While I empathise with the appellant’s circumstances, it is simply not within my remit to allow an appeal due to mitigating circumstances. I note the appellant do not feel the parking operator addressed their grounds of appeal and they were not able to view the evidence via the parking operator’s site. POPLA is an appeals service only. Our role is to assess whether a Parking Charge Notice has been issued correctly based on the evidence provide by both parties. What actions an operator takes after the PCN is issued is solely at the discretion of the operator and has no effect on the validity of the parking charge. We cannot become involved in disputes regarding an operator’s internal processes. If the appellant wishes to dispute this further, they will have to raise this with the operator directly. They can find out the information to raise a complaint via the following link: https://www.marstonholdings.co.uk/nsl/nsl-tower-hamlets-homes-complaints-policy/ Whilst I note the appellant has raised comments to POPLA after reviewing the operator’s case file, the comments expand on the initial grounds raised and I have addressed those within my report. Therefore, the comments do not require any further consideration. After considering the evidence from both parties, the driver stopped in a no parking area to drop a passenger off as shown in the video evidence provided by the parking operator and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

KeithP

Thanks for that.
Do you have a question?

ramagates

i have used the MSE template, does it no longer work

Coupon-mad

It isn't meant to 'work' every time.  POPLA is not independent.

You just ignore them if you lose.  This is normal and expected in half of cases.

ramagates

will they take it to courts? when you say ignore? i have told i am not the driver and i am actually not the driver

Umkomaas

ramagates said:

will they take it to courts? when you say ignore? i have told i am not the driver and i am actually not the driver

Who are 'they'?  

Coupon-mad

The PCN reason is “to parked in a restricted location during prescribed hours”

This is land which is under statutory control. Section 3 (1)c of PoFA states that PoFA can only be used on relevant land, which includes any land which the parking of a vehicle is subject to statutory control. 

OMG this isn't NSL at an Airport again - is it?!  Oh my days POPLA HAS DONE IT AGAIN...

"INCLUDES"

INCLUDES?? 

OMG POPLA TRAIN YOUR ASSESSORS !

ramagates

yes it is 

Stansted Airport by NSL Ltd on behalf of Manchester Airport Group. 

what are my options? / next steps

Coupon-mad

ramagates said:

yes it is 

Stansted Airport by NSL Ltd on behalf of Manchester Airport Group. 

what are my options? / next steps

Same as the other two NSL Gatwick threads.

This is an error in law.  The POFA EXCLUDES (not includes) land that is under statutory control.

A formal email complaint to POPLA, copying in Gemma of the BPA (AOS@britishparking.co.uk) and quoting ongoing BPA complaint ref BPA-044007 - copy my angry language of the other complaint on this NSL thread:

https://forums.moneysavingexpert.com/discussion/comment/79917718/#Comment_79917718

Send me a pm to show me your draft.  I want to add to it for you.

ramagates

Thanks a lot, i have messaged you directly

ramagates

Coupon-mad said:

ramagates said:

yes it is 

Stansted Airport by NSL Ltd on behalf of Manchester Airport Group. 

what are my options? / next steps

Same as the other two NSL Gatwick threads.

This is an error in law.  The POFA EXCLUDES (not includes) land that is under statutory control.

A formal email complaint to POPLA, copying in Gemma of the BPA (AOS@britishparking.co.uk) and quoting ongoing BPA complaint ref BPA-044007 - copy my angry language of the other complaint on this NSL thread:

https://forums.moneysavingexpert.com/discussion/comment/79917718/#Comment_79917718

Send me a pm to show me your draft.  I want to add to it for you.

Wonder if you could please review the direct message so i can sent