PLEASE HELP - POPLA appeal rejected - Minster Baywatch

POPLA assessment and decision
05/07/2018
Verification Code
x
Decision
Unsuccessful
Assessor Name
X

Assessor summary of operator case
The operator’s case is that the vehicle was not authorised.
Assessor summary of your case
The appellant’s case is that the driver on the day in question was a customer at Mecca Bingo but they were unaware of the terms and conditions due to inadequate signage. The appellant has raised several grounds of appeal such as: • The signage is not prominent, clear or legible. • No contract was entered into. • No evidence of landowner authority. • Notice to keeper is not liable with the Protection of Freedoms Act (PoFA) 2012. • The amount demanded is not a genuine pre-estimate of loss. To support the appeal, the appellant has provided POPLA with photographs of the car park, a copy of the notice to keeper, a response from the operator and a letter to the operator.
Assessor supporting rational for decision
In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider PoFA 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. When it comes to parking on private land, a motorist accepts the terms and conditions of the site by parking their vehicle. The terms and conditions are stipulated on the signs displayed within the car park. The operator has provided both PDF document versions and photographic evidence of the signage displayed on site. The signs state “Mecca Bingo and Bank Top Tavern patrons: vehicles must be included on an authorised user list. Parking charge £100.” The car park in question is monitored by Automatic Number Plate Recognition (ANPR) cameras. The operator has provided photographic evidence of the appellant’s vehicle entering the site at 13:31pm and exited the site at 14:47pm. The images captured by the ANPR cameras confirm that the appellant’s vehicle remained on site for a total of one hour and 16 minutes. The operator has provided a copy of a system generated print out that shows that the appellant’s vehicle registration number does not appear on the date of the event. I note the appellant’s comments and the evidence provided to support their reason for parking at the site in question. The appellant says the parking charge does not represent a genuine pre-estimate of loss. 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: “…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.” 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 BPA Code of Practice. Within Section 18.1 of the British Parking Association (BPA) Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “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.” 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 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 “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” 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 decision, 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. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Section 7.1 of the BPA Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. The operator has provided a copy of the contract which provides the operator authorisation to operator on the land in question, which gives it the authority to carry out all aspects of the car park. The onus is on the driver to ensure they are registered on the authorisation list as they were a Mecca Bingo customer, as the driver has failed to do this they have breached the terms and conditions. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If the appellant suspected that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, the appellant has failed to follow the terms and conditions of the signage at the site. I conclude that the operator issued the Parking Charge Notice correctly. Accordingly, I must refuse this appeal.

Sorry I just pasted directly as received

Hope this is easier - sorry i know its huge.

POPLA assessment and decision
05/07/2018
Verification Code
x
Decision
Unsuccessful
Assessor Name
X

Assessor summary of operator case
The operator’s case is that the vehicle was not authorised.

Assessor summary of your case
The appellant’s case is that the driver on the day in question was a customer at Mecca Bingo but they were unaware of the terms and conditions due to inadequate signage. The appellant has raised several grounds of appeal such as: • The signage is not prominent, clear or legible. • No contract was entered into. • No evidence of landowner authority. • Notice to keeper is not liable with the Protection of Freedoms Act (PoFA) 2012. • The amount demanded is not a genuine pre-estimate of loss. To support the appeal, the appellant has provided POPLA with photographs of the car park, a copy of the notice to keeper, a response from the operator and a letter to the operator.

Assessor supporting rational for decision
In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider PoFA 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. When it comes to parking on private land, a motorist accepts the terms and conditions of the site by parking their vehicle. The terms and conditions are stipulated on the signs displayed within the car park.

The operator has provided both PDF document versions and photographic evidence of the signage displayed on site. The signs state “Mecca Bingo and Bank Top Tavern patrons: vehicles must be included on an authorised user list. Parking charge £100.” The car park in question is monitored by Automatic Number Plate Recognition (ANPR) cameras. The operator has provided photographic evidence of the appellant’s vehicle entering the site at 13:31pm and exited the site at 14:47pm. The images captured by the ANPR cameras confirm that the appellant’s vehicle remained on site for a total of one hour and 16 minutes. The operator has provided a copy of a system generated print out that shows that the appellant’s vehicle registration number does not appear on the date of the event.

I note the appellant’s comments and the evidence provided to support their reason for parking at the site in question. The appellant says the parking charge does not represent a genuine pre-estimate of loss. 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: “…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.” 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 BPA Code of Practice. Within Section 18.1 of the British Parking Association (BPA) Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.”

Furthermore, Section 18.3 of the BPA Code of Practice states: “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.” 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 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 “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” 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 decision, 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.

While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Section 7.1 of the BPA Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for.

In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. The operator has provided a copy of the contract which provides the operator authorisation to operator on the land in question, which gives it the authority to carry out all aspects of the car park.

The onus is on the driver to ensure they are registered on the authorisation list as they were a Mecca Bingo customer, as the driver has failed to do this they have breached the terms and conditions. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If the appellant suspected that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, the appellant has failed to follow the terms and conditions of the signage at the site. I conclude that the operator issued the Parking Charge Notice correctly. Accordingly, I must refuse this appeal.