POPLA Decisions

OK - thanks tristona

A win!! Cheers guys :j:j:j

The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

That car park has a maximum stay period of three hours. A parking charge notice was issued for the reason that the Appellant’s vehicle remained in the car park for more than three hours.
The Appellant’s case is that the charge does not constitute a genuine pre-estimate of loss; the charge was unlawful; the Operator does not have authority to issue parking charges; the terms and conditions of parking were not displayed with sufficient prominence; the Operator failed to issue a valid notice to keeper; and the parking charge notice contained incorrect information.

The Operator rejects all of the Appellant’s submissions.

As regards the issue of whether a valid notice to keeper was given, liability for parking charges lies primarily with the driver; however, schedule 4 of the Protection of Freedoms Act 2012 provides that, in certain circumstances, the registered keeper of a vehicle may be held liable for parking charges incurred by the driver of the vehicle.
It is for the Operator to establish that the Appellant was the driver. The Operator has failed to provide any evidence on this point, and as such I am satisfied that in this case the Appellant must be treated as the keeper, not the driver, of the vehicle.
In order for the Operator to be able to recover unpaid charges from the registered keeper, four conditions must be met.
The second of these conditions is that: either a notice to driver in accordance with paragraph 7 of the schedule, followed by a notice to keeper in accordance with paragraph 8 is given; or, a notice to keeper in accordance with paragraph 9 is given.
These paragraphs set out the content each Notice is required to include. As liability is statutory, it is for the Operator to prove that all of the relevant content was included in the Notices.
I am satisfied that the Operator issued a notice to driver compliant with paragraph 7. However, the Operator has not produced any evidence that a notice was issued in compliance with paragraph 8. Accordingly, the Operator has failed to show that the Appellant is liable as the keeper of the vehicle.
I must therefore allow the appeal.
It is therefore not necessary for me to address the other grounds raised by the Appellant.
Jessica Hunter
Assessor

Thanks guys for the most up-to-date newbies draft. I have successfully defended myself 11 times this year and there are two more exciting ones where F1RST have provided the NTK but hopefully the points are enough for the appeals to be allowed. Below is another appeal that was won with your help. Thanks again



The Operator’s case is that the terms and conditions of use of site state that a valid ticket/permit is required to be displayed and the Appellant failed to comply with this requirement.

The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the notice to keeper has not complied with the requirements of the Protection of Freedoms Act 2012.

The burden of proof is on the Operator to prove its case on balance of probabilities. Paragraph 4 of Schedule 4 outlines the relevant criteria and there are 4 conditions to be fulfilled in order for the Operator to recover any unpaid parking charge notice from the registered keeper. The first condition is that the Operator has the right to enforce against the driver of the vehicle the requirement to pay the parking charge notice. The second condition is that the Operator has given a notice to the keeper in accordance with paragraph 9. The third condition is that the Operator has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate and the application was made during the relevant period for the purposes of paragraph 9 (4) where no notice to the driver was given. The fourth condition is that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate.

As the Appellant has not admitted to being the driver of the vehicle and no evidence of this has provided, in order for the Appellant to be liable for this charge, the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with and the notice to keeper must be compliant with certain provisions. The Operator must provide evidence to show this has happened as the liability in this case is created by the statute and it is not based in the law of contract. In the present case, no evidence has been supplied of the existence of a notice to keeper in any form and I am unable to find the Appellant liable for this parking charge.

Accordingly, I allow this appeal.

Aurela Qerimi

Assessor

Appeal allowed on point C, I was thinking it was going to be point B as the case for poor signage was poor to the point it Broke BPA AOS COP I am in the proccess of a complaint to BPA against UKPC, thanks for your help, power to the people!

21 July 2015
Reference +++++++++
always quote in any communication with POPLA
+++++++++ (Appellant)
-v-
UK Parking Control Limited (Operator)
The Operator issued parking charge notice number ++++++++ arising out of the presence at 68 High Road, Ilford, on ++/02/2015, of a vehicle with registration mark +++++++++.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

+++++++
21 July 2015
Reasons for the Assessor’s Determination
At 12:++ on the ++ February 2015, the operative observed a vehicle with registration mark, ++++++++, parked at 68 High Road, Ilford. A parking charge notice was issued for parking in a permit area without displaying a valid permit.
The Operator’s case is that there are sufficient signs on site warning drivers that should they choose to park without displaying a valid permit, they may become liable to receive a parking charge notice. A valid permit was not clearly displayed in the vehicle when the vehicle was observed and the motorist had therefore failed to park in accordance with the terms and conditions.
The Appellant’s case is that:
a) The charge is not a genuine pre estimate of loss.
b) The signage at the site is unclear and a contract was therefore not formed with the driver of the vehicle.
c) The Operator has not shown that they have the standing or authority to form contracts with drivers.
Considering carefully all the evidence before me, the Appellant has stated that the Operator has failed to show that they have the standing or authority to form contracts with drivers. The onus is then on the Operator to show that they have the authority from the landowner to issue parking charge notices to vehicles parked in breach of the terms and conditions. It is for the Operator to address the issues raised by the Appellant and in this case, the Operator has failed to provide a copy of the contract in place or a signed witness statement which grants them the authority to enforce restrictions at the site. I consequently have no evidence before me to refute the Appellant’s submission that the Operator does not have the authority to issue parking charge notices to vehicles parked in contravention of the terms and conditions. It does not fall to me to decide any other issues raised by the Appellant.
Accordingly, this appeal must be allowed.

Shehla Pirwany
Assessor