POPLA Operator evidence advice

tfo1998

Coupon-mad said:

I think this will be lost but it doesn't matter. You were always likely to lose at POPLA so I hope you haven't wasted too much time on this fairly pointless stage just because a long AI post from a non-regular poster led you up a garden path?

I predict a rejection.

But show us the supposed landowner authority document, not that it usually matters.  Is it signed by the actual landowner and does it say the right things?

I hope you prove me wrong. 

Go into ignore mode if you lose at POPLA. Search the forum for posts by me:

confidently ignore stance

Saves me regurgitating it yet again!

Thanks @coupon-mad

I've attached the landowner agreement and my drafted comments are below, any advice is appreciated.

"Thank you for forwarding the Operator evidence pack - following reading I have the below comments I'd like the assessor to take into consideration:

A. The operator incorrectly quotes in their evidence pack on page 13 "Statement: The appellant stated that ticket was purchased." 
B. Grounds for appeal ignored, unaddressed and not responded to nor refuted.
C. Apparent falsification of statement by the Operator in their evidence pack

A. The operator incorrectly quotes in their evidence pack on page 13 "Statement: The appellant stated that ticket was purchased." 

I'd like to make it clear the above statement WAS NOT my grounds for appeal which the Operator seems to have blatantly ignored throughout their response; I will address this further in point B.

B. Grounds for appeal ignored, unaddressed and not responded to nor refuted.

As part of my POPLA Appeal I submitted the following points of appeal to be considered by POPLA and the Operator: 

1. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice; 

2. The car park is operating unlawfully without planning permission and therefore

without consent of the landowner (specifically relating to BPA CoP 14.1.g).; 

3. Failure to identify a major keying error in line with BPA Code of Practice; 

4. The operator has breached BPA: Members Code of Professional Conduct, putting consumers at a material disadvantage and bringing the private parking business into disrepute.; 

5. The operator (Euro Car Parks) has failed to operate in line with the Equality Act 2010, specifically relating to disability.

Grounds 1 and 2 seem to have been addressed as the operator has given proof of landowner authority, albeit dated in 2021 and planning permission has since expired. It is clearly stated in point 4 of the contract on page 23 of the Operator evidence pack "If any signs require alteration, overlay, replacement, or additions due to legislative statute or BPA AOS changes in the COP, such changes will be made BY THE OPERATOR". The operator has failed to maintain planning permission in line with legislative statute Town and Country Planning Act 1990, therefore the contract has been breached which means it is now null and void; as a result there is no valid landowner authority. The operator is aware of their responsibilities to abide by this contract which it has failed to do so, as well as comply with relevant legislature such as the Town and Country Planning Act 1990.

Please note ground 3. Failure to identify a major keying error in line with BPA Code of Practice, has been completely ignored and unaddressed by the operator; this would imply they have no evidence against and therefore admit they have failed to identify a major keying error, and therefore broken BPA CoP. I'd politely refer you again to POPLA Keying Error Scenario 2 as available at the following link https://www.popla.co.uk/case-studies/keying-error-scenario-2

I also note ground 4. The operator has breached BPA: Members Code of Professional Conduct, putting consumers at a material disadvantage and bringing the private parking business into disrepute, has also gone unaddressed, as has ground 5. The operator (Euro Car Parks) has failed to operate in line with the Equality Act 2010, specifically relating to disability.

The operator has had the arrogance to think they can gaslight POPLA into dismissing an appeal based on submitting a page-long appeal about how an ANPR camera works and having signs up in the car park when neither of these were grounds for appeal. They haven't even bothered to write a proper response to the appeal and have submitted an evidence pack which contains statements that could be seen as falsifications.

Common sense would say if the operator disagreed with a point of appeal they would refute it or provide evidence against it; the lack of refutation surely means my points of appeal are agreed facts and the appeal should be successful.

C. Apparent falsification of statement by the Operator in their evidence pack

The Operator states on page 15 of their evidence pack "We note that in your letter you state that the parking charge notice (PCN) is not enforceable as you have currently not entered into a ‘contract’ with Euro Car Parks. I would respectfully remind that contract law applies in this instance".

This is a complete falsification; I in fact said "Saul Street Car Park, which is the car park this PCN is concerning, has been operating without planning permission since 11/09/2022, therefore the original landowner authority (if it ever existed) likely expired on this date considering the land could no longer be used as a car park following this date. As a result, Euro Car Parks do not have permission to operate nor enforce on this land. I have had the aforementioned confirmed by Preston City Council who currently have an open enforcement case relating to this car park, please note in the attached correspondence (Appendix C) Preston City Council confirm they are formally requesting the use of the land to be ceased." All of which is true and again has gone undisputed by the operator.

I'd also like to note this landowner agreement clearly states on page 22 of the Operator evidence pack, point 6. Conditions and Restrictions "Any particular conditions or restrictions must be clearly set out which may be relevant to the services provided, for example, if there are planning restrictions (section 106) or restrictions upon hours of operation or methods of parking management/structures to be applied, the details must be included in this agreement"

It has been confirmed to me by Preston City Council there are section 106 restrictions which have not been included in the agreement, therefore it was null and void from day 1 (which ironically was April Fools Day 2021).

As is the Operators arrogance, they still have not applied for planning permission to operate when they easily could have as they know it has lapsed. They are clearly more than happy to operate unlawfully and rip off motorists.

Please take into account my appeal submitted on 28/12/24, the attached evidence and these comments as you come to your decision on the POPLA Appeal. As a final note I'd politely remind you 3 of 5 of my points of appeal were not addressed by the operator in their evidence pack (if you can call it that) which would imply they do not argue against them nor refute them."

Coupon-mad

That is far too long and full of points that never get considered by POPLA.

Pick your one point to comment on.

tfo1998

Coupon-mad said:

That is far too long and full of points that never get considered by POPLA.

Pick your one point to comment on.

No worries, which point would you advise commenting on? I thought it was best to refute and pick up on any discrepancy in the evidence pack (considering absolutely none of it relates to the grounds of appeal).

Coupon-mad

Not discrepancies and not planning permission. Neither will affect a POPLA decision.

Whatever you are left with, comment in a few short paragraphs. Put the outcome in the 'POPLA DECISIONS' top thread whether you win or lose, and no paying.

tfo1998

POPLA unsuccessful: https://forums.moneysavingexpert.com/discussion/4488337/popla-decisions#latest

Coupon-mad

tfo1998 said:

Euro Car Parks - Preston

Original thread: https://forums.moneysavingexpert.com/discussion/6572400/popla-operator-evidence-advice#latest

Decision: Unsuccessful

Assessor Name: Claire Brackenridge

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) for no valid pay and display/permit was purchased. 

Assessor summary of your case

The appellant has raised a detailed appeal, and I have summarised the following points from their grounds of appeal.

• There is no evidence of landowner authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. The appellant has detailed what information a landowner contract should contain, referring to Section 14.1 of the BPA Code of Practice.

• The car park is operating unlawfully without planning permission and therefore without consent of the landowner (specifically relating to BPA CoP 14.1.g). This site, Saul Street Car Park, has been operating without planning permission since 11/09/2022, therefore the original landowner authority (if it ever existed) likely expired on this date considering the land could no longer be used as a car park following this date. As a result, Euro Car Parks do not have permission to operate nor enforce on this land.

• The operator has breached BPA: Members Code of Professional Conduct, putting consumers at a material disadvantage and bringing the private parking business into disrepute. The operator has failed to comply with the BPA code 4.1.1 as they are not compliant with the Town and Country Planning Act 1990, Preston City Council planning legislation, they are currently being investigated under enforcement procedures as a result.

• Failure to identify a major keying error in line with BPA Code of Practice. They provided the operator with evidence showing a parking duration of 12 hours, expiring at 9:29pm and they were under the impression that this confirmed they had successfully paid for parking as for something to ‘expire’ it has to have started. The appellant has said the operator failed to identify there had been a keying error (in this instance, pressing ‘pay’ which was not displayed on their screen nor a replicated screen created on 05/12/2024 which they attached as evidence. Euro Car Parks could easily have identified this was a keying error at this point as they had evidence of them entering their location code, the correct VRM and card details, they however continued to pursue a £60 charge in breach of BPA Code of Practice.

• The appellant has provided a weblink relating to a keying error scenario from POPLAs website.

• The appellant has said the paybyphone customer service has said they would support empathy for a mistake being made due to neurodivergence. They have said they also said they could see a quote was gained and their vehicle registration and card details keyed in. The appellant has said paybyphone said they recognised their intent to buy parking on the day.

• The appellant has said it is clear this instance was a keying error as there was a clear intent to buy parking, they just failed to press one button.

• The appellant provided evidence of another transaction at this site to show they always pay to park.

• The operator (Euro Car Parks) has failed to operate in line with the Equality Act 2010, specifically relating to disability. One of the main symptoms of ADHD is inattentiveness. There was no attempt by the operator to make reasonable adjustments, as is their duty under the Equality Act 2010 and therefore they have been discriminated against and put at a material disadvantage.

• They have consulted their Member of Parliament who also supports the withdrawal of the PCN, and they have contacted the operator, but they are yet to hear of their response.

• There is also an ongoing complaint with the British Parking Association (reference BPA-058610) which unfortunately has not been able to conclude before the deadline for submitting their POPLA appeal.

• As Euro Car Parks are operating in contravention of the Town and Country Planning Act 1990, if this appeal is rejected and Euro Car Parks pursue the matter through the courts, POPLA are complicit in allowing Euro Car Parks to profit from an illegal contract which is contrary to the Laws of England and Wales. The appellant has provided a copy of the title register document, a copy of the email correspondence with the council and paybyphone, a copy of a document relating to planning permission and screenshots of the payment app. This has been considered in my determination. After reviewing the operator’s evidence, the appellant has reiterated their case. They have said the operator incorrectly quotes in their evidence pack on page 13 "Statement: The appellant stated that ticket was purchased." Their grounds for appeal have ignored, unaddressed and not responded to nor refuted. The landowner agreement does not comply with BPA Code, and they have ignored a keying error. In the landowner agreement provided by the operator there is only a start date, and no end date or duration of permission specified as a result this landowner agreement clearly breaches BPA Code. There is an apparent falsification of statement by the operator in their evidence pack. The operator states on page 15 , "We note that in your letter you state that the parking charge notice (PCN) is not enforceable as you have currently not entered into a ‘contract’ with Euro Car Parks. I would respectfully remind that contract law applies in this instance". This is a complete falsification. As is the operator’s arrogance, they still have not applied for planning permission to operate when they easily could have as they know it has lapsed. They are clearly more than happy to operate unlawfully and rip off motorists. The operator has had the arrogance to think they can gaslight POPLA into dismissing an appeal based on submitting a page-long appeal about how an ANPR camera works and having signs up in the car park when neither of these were grounds for appeal. Common sense would say if the operator disagreed with a point of appeal, they would refute it or provide evidence against it; the lack of refutation surely means their points of appeal are agreed facts and the appeal should be successful.

Assessor supporting rational for decision

POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal. The signage in place sets out the terms and conditions. The signage at this site states charges apply for parking. It also states if the terms and conditions are breached a PCN for £100 can be issued.

The parking operator has provided details from its system to show the appellants vehicle was on site for 6 hours and 3 minutes and did not pay for their stay.

I note the appellant has said they have consulted their Member of Parliament who supports the withdrawal of the PCN, and they have contacted the operator on their behalf, but they are yet to hear of their response. As the PCN had not been cancelled at the time this appeal was assigned to me, I will continue with my assessment.

I acknowledge the appellant has said the operator has not addressed all of their grounds of appeal, and they have included incorrect quotes and statements in their case file. POPLAs role is only to determine if the PCN has been issued correctly by the parking operator in line with the terms and conditions on site. We have no influence on how they operate, including how they handle their appeals. This is something the appellant could raise with the operator directly.

I also acknowledge the appellant has said they always pay for parking. I appreciate this, however any other occasions they have parked has no bearing on my decision as POPLA assesses appeals on a case-by-case basis. This assessment is regarding the PCN that this appeal is for, and any evidence included only.

I acknowledge the appellant did not intend on breaching the terms and conditions of the site at the time in question and I appreciate this, however it cannot be ignored that they did. I also appreciate the appellant thought they had paid for parking at the time, but the fact remains that they hadn’t. I understand the appellant has ADHD, and they have explained this can cause inattentiveness, and as the payment app showed the expiry time of the parking session, their vehicle registration and card details, they thought the session had been booked, and they have provided screenshots of the app to show this. They have said they were unaware at the time that there was a button they had not pressed. I do understand and empathise with this.

The parking operator has explained and shown in their case file that the appellant registered for an account on the payment app and added their details, but they did not purchase a parking session.

In their appeal the appellant has said the operator has not complied with the Equality Act and they have not made any reasonable adjustments. Whilst I appreciate the appellant having ADHD may have contributed to them not completing the process and therefore not making the payment, I am satisfied the PCN was not issued to them because they have ADHD, and therefore I am satisfied they have not been discriminated by the PCN being issued. The parking operator could make reasonable adjustments possibly relating to a delay in payment, or leaving the site, or if a payment has been made for the incorrect vehicle registration. However in this case, no payment was made at all, and therefore the appellant was not authorised to park on site. 

I also appreciate the appellant has said the paybyphone customer service has said they would support empathy for a mistake being made due to neurodivergence, and they provided a copy of an email to show this. Paybyphone is a third-party payment company. The parking operator does have the right to exercise discretion in regard to withdrawing or cancelling a charge, but it is outside POPLAs jurisdiction to become involved with a parking operator’s decision in this matter. Whilst I do understand the appellants ADHD symptoms can affect them day to day. Ultimately, it is the driver’s responsibility to ensure that the vehicle is parked in accordance with the terms and conditions of that site. This includes ensuring a valid payment has been made for their stay. When parking on private land, the parking contract is between the motorist and the operator through the terms on its signs. As the appellant remained parked on site, they accepted the contract on offer and also the consequence of not complying with this. If a payment was successful, it is likely a receipt or confirmation of payment would be shown on the app or sent by email. At the time, the appellant could have checked for this to make sure they had paid.

I note the appellant has said as they did not press the button to complete the payment, and the operator should consider this as a keying error. A keying error relates to a payment being made for the incorrect vehicle registration. The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators need to comply with. The Appeals Charter is a statement on how certain circumstances should be handled by the parking operator. This details when a parking charge should be cancelled, and when a parking charge should be reduced to £20, when an appeal is based on an error or mitigating circumstances. Section F.3 of the Code lists specific circumstances where a parking operator must reduce a PCN to £20, subject to appropriate evidence being provided. Such as if a driver has paid the tariff or registered their vehicle but they have swapped characters, have digits missing or have entered the wrong registration completely. In this case, the appellant did not make a payment for an incorrect vehicle registration, and therefore the operator was not required to reduce the charge to £20.

I acknowledge the appellant has raised landowner authority in their appeal, and they have said the operator does not have planning permission. They have said the operator has breached the BPA: Members Code of Professional Conduct and the Town and Country Planning Act 1990. The appellant has said as Euro Car Parks are operating in contravention of the Town and Country Planning Act 1990, if this appeal is rejected and Euro Car Parks pursue the matter through the courts, POPLA are complicit in allowing Euro Car Parks to profit from an illegal contract which is contrary to the Laws of England and Wales. They have also said they have been in correspondence with the council about this and provided copies of emails to show this. The appellant has also provided copies of documents relating to title registers and planning permission. They have also said their concerns relating to this have been raised with the council and the BPA.

POPLA is not equipped to assess the merits of a planning application or lack thereof. Therefore this is something the appellant will need to continue to pursue outside of our appeal process. As mentioned at the beginning of this assessment, my decision will focus on the other aspects of the appeal in order to determine if the PCN has been issued correctly. Section 14.1 of The Private Parking Sector Single Code of Practice states that where controlled land is being managed on behalf of a landowner, written confirmation must be obtained before a parking charge can be issued. In this case the operator has provided a copy of its agreement with the landowner. This can be seen on page 21 of the evidence pack. This is a witness statement, which is acceptable. This agreement states the start date was 1 April 2021, and that the parking operator is authorised to carry out parking enforcement at this site, and this is signed on behalf of the parking operator and the landowner.

I appreciate this agreement does not contain all of the details the appellant has mentioned. However as this is a witness statement, it is not required to contain all of the details a landowner contract would. I also appreciate there is no end date for the agreement shown.

However at POPLA, we accept all evidence from both parties in good faith, and unless proven otherwise, we assume it to be correct. In this case, as no evidence has been provided to show otherwise, I am satisfied that the operator had sufficient authority at the site on the date of the parking event.

After considering the evidence from both parties, the appellant did not purchase a valid pay and display/permit, and therefore they 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. Any questions relating to payment of the charge should be directed to the operator.

———————

Interestingly POPLA can’t comment on Planning Law but can determine I wasn’t discriminated against in line with EqA 2010…

Ignore that. POPLA cannot determine Equality Act breaches and are not trained in it.

Jayteeto

Very interesting. 

I may be getting a PCN from a registered car park operator, following a failure of Pay App not completing  properly, that is operating a Car Park on behalf of Landowner who may have given permission but there is no planning authorisation from Local Council.

Pay App people obviously refuse to accept problem with their app or acknowledge problem with their call service.