POPLA Decisions

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Deadline information
Appeal deadline is Thu Mar 29 2018 to reach POPLA.

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PE/Aldi Hidden clause mk2.

Decision Unsuccessful
Assessor Name Alexandra Roby
Assessor summary of operator case
The operator!!!8217;s case is that the motorist remained at the car park for longer than the stay authorised.

Assessor summary of your case

The appellant!!!8217;s case is that there is genuine customer exemption criteria unevidenced and not explained to motorists. The appellant states that his appeal was rejected as he did not meet the landowner!!!8217;s discretionary criteria, despite having provided a copy of his receipt to prove that he was a genuine customer. The appellant states that the hidden clause is an unfair term under the Consumer Rights Act 2015. The appellant has provided a copy of his receipt to support his appeal.

Assessor supporting rational for decision

In this case, it is not clear who the driver of the vehicle in question is, so I must consider the provisions of the Protection of Freedoms Act 2012 as the operator has issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of the Protection of Freedoms Act 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle.

The terms and conditions of the site state: !!!8220;1 ½ hour max stay. Aldi customers only. Failure to comply with the terms & conditions will result in a Parking Charge of: £70!!!8221;. The operator has issued the PCN as the motorist remained at the car park for longer than the stay authorised. Images from the operator!!!8217;s Automatic Number Plate Recognition system have been provided, which show that the appellant!!!8217;s vehicle entered the car park at 13:XX and exited at 18:XX on the day in question, staying for a total of four hours and XX minutes.

The appellant!!!8217;s case is that there is genuine customer exemption criteria unevidenced and not explained to motorists. The appellant states that his appeal was rejected as he did not meet the landowner!!!8217;s discretionary criteria, despite having provided a copy of his receipt to prove that he was a genuine customer.
The appellant states that the hidden clause is an unfair term under the Consumer Rights Act 2015.

The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: !!!8220;!!!8230;the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.!!!8221;
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 British Parking Association (BPA) Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: !!!8220;You must use signs to make it easy for them to find out what your terms and conditions are.!!!8221; Furthermore, Section 18.3 of the BPA Code of Practice states: !!!8220;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.!!!8221;
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 (PoFA 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 !!!8220;adequate notice!!!8221; of the charge. The Act then moved on to define !!!8220;adequate notice!!!8221; as follows: (3) For the purposes of sub-paragraph (2) !!!8220;adequate notice!!!8221; 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.

Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. When parking on private land, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review and comply with the terms and conditions when deciding to park.

Furthermore, whether such a clause in the contract exists between the landowner and the parking operator has no bearing on my decision in this case. I do not consider that it would have affected the motorist!!!8217;s ability to comply with the terms and conditions in the first instance.

While I note that the motorist may have been a genuine customer of the Aldi store that day, this did not make them exempt from the site!!!8217;s terms and conditions. As the motorist remained at the car park for longer than the stay authorised, they have failed to comply. As such, I conclude that the PCN was issued correctly.

Accordingly, I must refuse this appeal.

Comments on this thread;


http://forums.moneysavingexpert.com/showthread.php?t=5820692

Good one!!


From my reading of this, the appellant [owner] didn't actually put 'no keeper liability/driver not identified' as a point of appeal?


The adjudicator seems to have done that for themselves??


Now that would be nice if POPLA did the work for us!!!

Another success against the Parking Eye cowboys - thank you for all your help:

Decision: Successful

Assessor Name:

Assessor summary of operator case
The operator’s case is that the motorist did not purchase a valid pay and display ticket or parked without a valid permit.

Assessor summary of your case
The appellant’s case is that she was not driving the vehicle and was teaching at the time. She states that she can provide a testimonial from her head teacher to prove this. She states that the operator’s photographic evidence does not identify her as the driver. The appellant advises that the Parking Charge Notice (PCN) was issued more than 14 days after the parking event.

Assessor supporting rational for decision
In this instance, the operator has issued the PCN to the keeper of the vehicle, and I am therefore satisfied that the keeper of the vehicle is entitled to appeal the validity of the PCN. Upon review of its notice to keeper, it is evident that the operator has not referenced that it is attempting to transfer the liability for the PCN from the driver of the vehicle to the keeper of the vehicle using the Protection of Freedoms Act 2012. Therefore, the operator should continue to hold the driver liable. As such, I must first consider whether I am confident that I know who the driver of the vehicle is, based on the evidence that I have received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver of the vehicle. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. Accordingly, I must allow this appeal.

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