McDonalds Wisemore O.P. Got Me As Well!

Chris56000

I have now treated the second Letter as a N.T.K. and submitted my initial appeal to Ocean Parking, which stated on the back that I had 28 days from today's date to do so.

A relevant factor is that I have had eye surgery and have been warned by the Opthalmologist who treated my eyes that I am not safe to drive, and there am simply unable to see let alone read, their miniscule miles–high tiny signage!

I declined to give OP the name of the driver in accordance with my POFA rights!

Snakes_Belly

Stefano has fought a claim like this. It might be worth taking a look at his thread. 

fisherjim

Chris56000 said:

I had no NTK or other document, letter or letter from Ocean Parking until today and so there was nothing I could have added to my post dated 10 November I'm afraid!

On the 10th November you stated:

"I have just received one of Ocean Parking's £100 Penalty Charge Notices in the post today over parking there from 9.05 to 9.40 on Saturday the 4th November 2023!"

And CM said the same day:

Could you please help us by adding a front & back photo of the (your data redacted) NTK here:

But never mind now.

Coupon-mad

It's OK, we have both versions from other posters now, and the OP has been signposted to compare their NTK to it.  So back on track.

MothballsWallet

As an aside, I noticed that the OP left their VRM unredacted in their NTK picture earlier - that could help the PPC identify them if they trawl this forum.

Chris56000

I only realised I'd not redacted the VRM on the back page after I'd already posted I'm afraid, before the Forum gave me editing privileges!

I have now appealed to O.P. in accordance with their instructions on the back of the second letter I received, which I have taken to be their N.T.K., altho' they do not clearly word it as such – it just says "Reminder Notice!"

My next step, if they turn it down, is to request the 10 Digit Code for a P.O.P.L.A. appeal!

Chris56000

Hi!

So I've got to pay those rotten money–grabbers –POPLA turned down my appeal!

. . .How long have I got to find their money before they start further proceedings?

. . .The Assessor was one I've noted as being a bit more likely to turn down appeals and her appeal decision is below!

 

POPLA

Your appeal was not successful

As your appeal was not successful, we would consider the parking charge as effective. It is advised that you now pay your parking charge.

POPLA assessment and decision

08/02/2024

Decision

Unsuccessful

Assessor Name

Amy Cafferty

Assessor summary of operator case

The parking operator issued the Parking Charge Notice (PCN) for failure to pay for the full duration of stay.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal 

They would like the assessor to take into account that they were told by their ophthalmologist that they were unable to driver a vehicle due to their vision and since having surgery in March 2023.

They say their friend was driving at the time of the event, who name and address they withheld in accordance with their rights under the Protection of Freedoms Act (PoFA) 2012.

The signage is extremely small, high up on lampposts, there are very few signs throughout the site and are not compliant with the British Parking Association (BPA) Code of Practice. 

They say neither them nor their friend was able to read the signs or see the writing on them. • The operator has failed to consider a disability under the Equality Act 2010.

They feel due to the weather conditions and the difficulties with their eyesight, they feel it would not be unreasonable to grant an extra 5 minutes when entering the car park to read the signs and find a space. 

The BPA Code of Practice recommends a 10 minute grace period. • They say if the 5 minutes at the start and the 10 minutes at the end is deducted, it would reduce the parking event to 25 minutes and they feel the operator has been over-zealous and unfair in issuing the PCN for this. •

The operator does not appear to be operating in the car park in accordance with the councils original planning permission.

The operator has failed to provide a written contract from the landowner that gives them permission to manage the car park.

The operator has failed to provide clear photos of the parking event and they are unable to see what parking space they were parked in. •

They discovered after getting the PCN that McDonald’s customers can enter their registration into a tablet on site to be allowed to park for free for 1 hour but say there are no signs inside McDonald’s or on site that state this. 

They say that the McDonald’s staff members did not tell them about this either. • They say that other McDonald branches in the area allow a maximum of 60 minutes and they had no reason to suspect there was a difference at this site. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal.

The appellant has provided the following as evidence to support their appeal: • A document relating to council planning permission for the site • A copy of their rejection letter they received from the operator. The above evidence will be considered in making my determination.

Assessor supporting rational for decision

As the driver has not been identified for the contravention on the date of the event, I am considering keeper liability and will check that the PCN issued complies with Section 4 of the Protection of Freedoms Act (PoFA) 2012. The operator has provided a copy of the NTK sent. As the driver of the vehicle has not been identified, the NTK will need to comply with Section 9 of PoFA 2012. Having reviewed the evidence provided by the operator, I am satisfied that the NTK has complied with the requirements of PoFA 2012. I can see that the keeper was invited to supply the driver details to the operator within 28 days beginning with the day after that on which the notice was given. As this information has not been supplied, then the operator reserves the right to pursue the keeper of the vehicle. As such, I will be considering their liability for this charge. 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.

 Whilst I appreciate the appellant had been told by their ophthalmologist that they were unable to driver due to their vision and since having a recent surgery in March 2023 and I hope the appellant has since made a full recovery.

When looking at appeals, POPLA can only consider if the PCN has been issued correctly in line with the terms and conditions of the site in question. POPLA cannot allow an appeal based on mitigating circumstances. POPLA are able to ask a parking operator to consider cancelling a charge, if POPLA do not consider it has reviewed the circumstances. After reviewing the initial appeal, I can see the same circumstances were presented to the parking operator, and no new evidence has been provided.

As the parking operator has already made a judgement based on this information, and decided to continue with pursuing the charge, I must continue with the assessment. I understand that the appellant says the signage is extremely small, high up on lampposts, there are very few signs throughout the site and are not compliant with the BPA Code of Practice. They say neither them nor their friend was able to read the signs or see the writing on them.

The 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 images of the signage on site, I can see from the site map provided that there are multiple signs located around the site. These detail the terms and conditions of parking, how there is 20 minutes free parking, it details the tariffs applicable to pay and how payment can be made.

There are also additional signs located throughout the site explaining McDonald’s customers have 20 minutes free parking and how they can enter their registration into the tablet to allow 60 minutes free parking. Therefore, I am satisfied that the signage on site is compliant with the BPA Code of Practice and the appellant would have had the opportunity to see, read and understand that the site was subject to terms and conditions.

Additionally, the signs do not need to be placed directly in the position where the vehicle stopped, they simply must be placed throughout the site so that drivers are given the chance to read them. It is the responsibility of the motorist to ensure that when entering private land subject to terms and conditions, that they ensure they have read and understood the signage before leaving their vehicle parked.

 

I appreciate that the appellant says that the operator has failed to consider a disability under the Equality Act 2010. In any instance where a motorist does not comply with the terms and conditions for the site, a PCN would be issued.

The fact that the appellant had issues with their sight due to an operation and was told they were unable to drive, does not make them exempt from the parking terms and conditions set out on the signage. Therefore, I am satisfied that there has been no level of discrimination, as the PCN has issued for been for failing to pay for their duration of stay and not for the appellant having an issue with their eyesight due to a recent surgery. I note the appellant feels due to the weather conditions and the difficulties with their eyesight, they feel it would not be unreasonable to grant an extra 5 minutes when entering the car park to read the signs and find a space. 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. Section 13.2 states: “The reference to a consideration period in 13.1 shall not apply where a parking event takes place”.

In this case, as the appellant entered the site with the intention of parking and proceeded to remain parked on site for 35 minutes. As such, they are not entitled to a consideration period and were required to pay for their time spent parked on site. The BPA Code of Practice Code of Practice, 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. Section 13.6 of the Code of Practice states that a grace period is not a period of free parking and there is no requirement for parking operators to offer an additional allowance on top of a grace period.

In this case, the appellant remained parked on site for a period of 35 minutes. Even in the instance that the operator offered a 10 minute grace period, they would still be in breach of the terms of parking and liable for the issuance of a PCN, as they failed to make a payment for parking after the 20 minutes free period of parking. 

I understand the appellant says that if the 5 minutes at the start and the 10 minutes at the end is deducted, it would reduce the parking event to 25 minutes and they feel the operator has been over-zealous and unfair in issuing the PCN for this.

Even in the instance that the operator did remove the 5 minutes at the start and 10 minutes at the end of parking, the appellant would still have been received to make a payment for parking, as they still stayed longer than the 20 minutes free period.

I acknowledge the appellant says that the operator does not appear to be operating in the car park in accordance with the councils original planning permission. When looking at appeals, POPLA considers whether a parking contract was formed between the motorist and the operator and, if so, whether the motorist kept to the conditions of the contract. As this issue holds no impact on the appellant’s ability to comply with the terms on the date of the parking event, I cannot consider it relevant to the assessment. Should the appellant wish to pursue any dispute regarding this matter, they would need to contact the relevant planning authority directly.

I note the appellant says the operator has failed to provide a written contract from the landowner that gives them permission to manage the car park. The BPA has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract.

In this case the operator has provided evidence of their contract with the landowner confirming that they have landowner authority. This authorises them to operate on the land in questions as the document details the locations the land they manage. It also explains that they are authorised to carry out all aspects of parking control and enforcement on the site. The evidence provided in relation to this appeal meets the criteria POPLA requires. I am satisfied that the operator has sufficient authority at the site on the date of the parking event. Furthermore, if authority had since been removed, it is likely that the landowner would remove the signage at the same time. Not many landowners would look on quietly while someone operates on their land without their permission. In addition to this, the appellant has not provided any evidence to suggest that the operator do not own the land in question, therefore there is nothing that casts doubt on the legitimacy of the operators contract with the landowner. 

I appreciate that the appellant says the operator has failed to provide clear photos of the parking event and they are unable to see what parking space they were parked in. The site in question is monitored by ANPR cameras that calculate the duration of stay from entry to exit. There is no requirement for the parking operator to provide images of the vehicle parked within one of the bays on site. The operator has provided a system print out showing a search carried out for the appellant vehicle registration number. The appellants vehicle does not show as having a payment made for their time parked on site. Therefore, as they breached the terms and conditions of parking, they became liable for the issuance of a PCN.

I understand that the appellant says they discovered after getting the PCN that McDonald’s customers can enter their registration into a tablet on site to be allowed to park for free for 1 hour but say there are no signs inside McDonald’s or on site that state this. The operator has provided images located throughout the site that explains McDonald’s customers can enter their registration into the tablet to be allowed to park for free for 1 hour.

There is no requirement for the signs to be located inside McDonald’s and they only have to be placed throughout the McDonald’s car park. I acknowledge the appellant says that the McDonald’s staff members did not tell them about this either.

Employees of the site are not obligated to bring the terms and conditions of the car park, to the public’s attention. The onus is on the motorist to ensure they have read and understood the terms and conditions of parking, before leaving their vehicle parked on site. I can see the appellant has said that other McDonald branches in the area allow a maximum of 60 minutes and they had no reason to suspect there was a difference at this site. It is ultimately the responsibility of the motorist that when parking on a site subject to terms and conditions that they ensure they are complying with the terms displayed. A motorist should never assume that the parking restrictions are the same as other McDonald’s within the area. After considering the evidence from both parties, the appellant failed to pay for their time spent parked on site 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.

Your POPLA appeal is now complete

. . .I appreciate that this case has resulted in a much longer "wall of text" than is customary in these cases and I apologise for this!

. . .I feel that the Assessor Amy made the wrong decision in accepting the PC's Landowner's Contract as satisfactory evidence as it has been redacted and I cannot determine from it who to write to –do OPC suspect the Landowner would order them to cancel the ticket if I wrote to them perhaps?!

I attach what I received regarding Landowner Consent at the top of the page 

Chris Williams 

Coupon-mad

 "...the PCN has issued for been for failing to pay for their duration of stay and not for the appellant having an issue with their eyesight due to a recent surgery. I note the appellant feels due to the weather conditions and the difficulties with their eyesight, they feel it would not be unreasonable to grant an extra 5 minutes."

"In this case, as the appellant entered the site with the intention of parking and proceeded to remain parked on site for 35 minutes. As such, they are not entitled to a consideration period"

"Even in the instance that the operator did remove the 5 minutes at the start and 10 minutes at the end of parking, the appellant would still have been received to make a payment for parking, as they still stayed longer than the 20 minutes free period."

Hahaha!  Hilarious. POPLA don't understand the EA 2010 but a court would.

And a Judge would be able to subtract 5 and 10 from 35 and get the correct answer: 20.

  

Trainerman

Coupon-mad said:

 "...the PCN has issued for been for failing to pay for their duration of stay and not for the appellant having an issue with their eyesight due to a recent surgery. I note the appellant feels due to the weather conditions and the difficulties with their eyesight, they feel it would not be unreasonable to grant an extra 5 minutes."

"In this case, as the appellant entered the site with the intention of parking and proceeded to remain parked on site for 35 minutes. As such, they are not entitled to a consideration period"

"Even in the instance that the operator did remove the 5 minutes at the start and 10 minutes at the end of parking, the appellant would still have been received to make a payment for parking, as they still stayed longer than the 20 minutes free period."

Hahaha!  Hilarious. POPLA don't understand the EA 2010 but a court would.

And a Judge would be able to subtract 5 and 10 from 35 and get the correct answer: 20.

  

A powerful illustration of just how unfit for purpose PoPLA and their "assessors" are !

Chris56000

. . .As other advice given to other Members suggests that "Plan C – Complain to MP/Landowner" is still valid despite a rejection by POPLA I will also be submitting a request to the Landowner (IF I can ascertain it by research from the redacted info) to consider requesting Ocean Parking to cancel the ticket, and making my MP aware of this one, and also Walsall Council themselves who decided the original Planning Permission for this site – even if I get nowhere with this and it has to be defended in County Court I hope the tale will be useful as reference to others who got stung here!

Chris Williams