POPLA Decisions

Well done. Any win is a good win, but it's a shame the assessor didn't allow the appeal on lack of landowner authority.

Umkomaas wrote: »

I’m sure that where a decision is to be made against a PPC, the one that causes least potential ongoing complications for them is the one required to be chosen.

I hope that the issue of inadequate signage selected by the assessor will also cause ongoing complications for them. With a ruling of inadequate signage against them, surely they shouldn't be pursuing those of us who received a PCN before or after the change in land ownership.

Verification Code - 4110049017
POPLA assessment and decision - 14/05/2019

This decision is particularly good because it was changed by POPLA after the OP complained, and it reiterates that the MINSTER BAYWATCH car parks where the tariff (main) large signs beside the machine say the contract is with Bransby Wilson, have such confusing signs that the driver doesn't know about or agree to any contract with Minster Baywatch.

I think there are at least 2 car parks that this decision covers.

A win against ParkingEye at the Beehive Centre in Cambridge, based on their failure to send the correct documents in the Notice to Hirer. :j

Original thread: https://forums.moneysavingexpert.com/showthread.php?t=5947181

Decision: Successful

Assessor Name: Natalie Hill

Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) for either not purchasing a valid pay and display ticket, by remaining at the car park for longer than permitted, or by not entering your registration details via the terminal.

Assessor summary of your case
The appellant’s case is that as the hirer of the vehicle the operator is in breach of the Code of Practice because it failed to deliver a notice to hirer that was fully compliant with the requirements of schedule 4 of the Protection of Freedom Act (PoFA) 2012. The appellant advises that the operator has not show that the individual it is pursuing is the driver of the vehicle and potentially liable of the charge. The appellant has indicated that there is no evidence of Landowner Authority. The appellant argues that no grace period was given. The appellant states that the signage in the car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. The appellant argues that there is no evidence to show the ANPR is reliable. The appellant has included additional comments with each ground of appeal.

Assessor supporting rational for decision
The appellant has been identified as the hirer of the vehicle, as such I will be considering his liability for the PCN. The operator has provided photographic images of the signage which states: “3-hour max stay… Customer only car park.” The signage also states: “Failure to comply with the terms and conditions will result in a Parking Charge of: £100.” The operator has provided Automatic Number Plate Recognition (ANPR) images showing the vehicle entering the car park at 13:29, and exiting 16:47, totalling a stay of 3 hours and 18 minutes. In this case the appellant has questioned Landowner Authority. I have examined the operator evidence and I can see a document which confirms an agreement between the landowner and the operator. After taking into consideration the criteria set out in the British Parking Association (BPA) Code of Practice, I am satisfied that this document fulfils the requirements set out in 7.3 of the BPA Code of Practice and shows the operator does have Landowner Authority on this site. The appellant has advised that the operator is in breach of the Code of Practice because it failed to deliver a notice to hirer that was fully compliant with the requirements of schedule 4 of the Protection of Freedom Act (PoFA) 2012. He has also argued that the operator has not shown that the individual it is pursuing is the driver of the vehicle and potentially liable of the charge. He has referred to the right to not name the driver and keeper liability. In response to the above point I have reviewed the operator evidence and I can see that a Notice to Hirer was set to the appellant on 19 December 2018 this was after a PCN was issued to the hire company on 15 November 2018 and a reminder on 24 November 2018. The PCN indicates that the hire company had provided the operator with a copy of the appellants hire agreement and statement of liability. Taking into consideration PoFA 2012 I can see that after the reminder was issued to the hire company on 24 November and the hire company provided a copy of the hire agreement on 18 December 2018. The PCN was then issued to the appellant the next day on 19 December 2018. I therefore consider the PCN itself to be correct in regard to the time in which it was issued and the content, however when I have examined the evidence, I can see that the operator has only provided a copy of the hire agreement and has not provided the statement of liability. As the operator has not provided this document I am unable to establish if the appellant had been sent all the required documents as per PoFA 2012. On this basis, I must allow this appeal because the operator has failed to provide which evidence which shows that the appellant had signed a statement of liability when he hired the vehicle, and that this was sent to the appellant along with the PCN. As I have allowed this appeal, I will not need to consider any other points by the appellant.

Gutted. Reading back on last few pages of decisions, I don’t know how some assessors day the signage is unacceptable and some say it ok when I know it’s not. Seems very unfair. Also another successful one saying that over the grace period by 2 mins was ruled successful when I was over grace period by 2 mins also but she said not allowed. R some of these assessors inexperienced? Can’t I ask for it to be checked again by a superior?? ☹️

Decision: Unsuccessful
Assessor Name: Adele Brophy

Assessor summary of operator case
The operator’s case is that a Parking Charge Notice (PCN) was issued due to the P&D / Permit purchased did not cover the date and time of parking.

Assessor summary of your case
The appellant has raised several grounds for appeal these are: The appellant has advised that the operator has not met the requirements of the Protection of Freedoms Act (PoFA) 2012 and the British parking Association (BPA) Code of Practice in relation to signage at the site. The appellant has advised that the operator has not shown the individual nit is pursuing is the driver who was liable for the charge. The appellant has advised that the operator has not allowed a grace period and that the driver purchased a ticket for £3.00 for three hours. The appellant has advised that the time to find a space, make a payment and read the signage, get back to the vehicle and make sure children are safely in and the vehicle is loaded before leaving. The appellant has questioned the operators right to issue PCN’s on the land in question, and that any contract is unfair. The appellant has advised that one of the passengers needed to urgently breastfeed her baby before leaving the car park and that the operator is guilty of indirect discrimination. The appellant’s case is that the PCN is punitive and exceeds and potential or consequential loss to the landowner. The appellant has advised that the signage fails to advise what the ANPR data collected will be used for and is in breach of section 21.1 of the BPA Code of Practice and the Information Commissioners Office (ICO) Code of practice. The appellant has provided a photograph of signage in support of their appeal.

Assessor supporting rational for decision
After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle at the time of the relevant parking event. The operator is therefore pursuing the appellant as the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in PoFA 2012 must be adhered to. The operator has provided a copy of the notice to keeper; after reviewing this I am satisfied that; the operator has met with the requirements of PoFA 2012. The terms and conditions of the site are, “Up to 3 hours £3.00, Up to 4 hours £4.00. This car park is controlled, failure to comply with the following will result in the issue of a £85 Parking charge Notice. We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry ad exit at all times including bank holidays”. The site operates by an Automatic Number Plate Recognition (ANPR) system. The appellant’s vehicle was captured entering the site at 10:00, before exiting at 13:22, totalling a stay of three hours 22 minutes. The operator issued a PCN due to the P&D / Permit purchased did not cover the date and time of parking. The appellant has advised that the operator has not met the requirements of the PoFA 2012 and the BPA Code of Practice in relation to signage at the site. The appellant has advised that the operator has not shown the individual it is pursuing is the driver who was liable for the charge. The appellant has advised that the operator has not allowed a grace period and that the driver purchased a ticket for £3.00 for three hours. The appellant has advised that the time to find a space, make a payment and read the signage, get back to the vehicle and make sure children are safely in and the vehicle is loaded before leaving. The appellant has questioned the operators right to issue PCN’s on the land in question, and that any contract is unfair. The appellant has advised that one of the passengers needed to urgently breastfeed her baby before leaving the car park and that the operator is guilty of indirect discrimination. The appellant’s case is that the PCN is punitive and exceeds and potential or consequential loss to the landowner. The appellant has advised that the signage fails to advise what the ANPR data collected will be used for and is in breach of section 21.1 of the BPA Code of Practice and the Information Commissioners Office (ICO) Code of practice. The appellant has provided a photograph of signage in support of their appeal. The appellant has advised that the operator has no standing or authority to pursue Parking Charges nor form contracts with drivers on the land. Section 7.1 of the BPA Code of Practice sets out to parking operators that “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 authority to carry out all aspects of car park management for the site 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 a contract confirming it held landowner authority at the time of the parking event. AS such, I am satisfied the operator has met the requirements set by the BPA. The appellant’s case is that the PCN is punitive and exceeds and potential or consequential loss to the landowner. 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 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 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 “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. Section 21.1 of the BPA Code of Practice states,” You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”. The signage displayed within the car park advises that cameras monitor the site. I would therefore be satisfied the operator has made it clear that ANPR technology is in place to determine the duration of stay of vehicles. While I acknowledge the appellants comments why they do not believe the technology to be accurate, as there is no evidence to dispute the accuracy of the ANPR images captured on the date of the parking event I must work on the basis that it is fully accurate. Section 13.2 of the BPA code of practice, advises,” If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes”. After reviewing the evidence and comments provided by both the appellant and the operator, I consider 22 minutes to be in excess of a reasonable grace period to allow a motorist to enter the site read the terms and conditions, make a payment and exit again at the end of the contract. I note the appellant’s comments that one of the passengers needed to breastfeed their baby and that the operator has indirectly discriminated. Indirect discrimination is where a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. However, indirect discrimination can be justified if the provision, criteria, or practice is a proportionate means of achieving a legitimate aim. We consider ANPR as a proportionate means of achieving the legitimate aim of effective car parking management. While I appreciate Section Non-work pregnancy and maternity discrimination states “(3) A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth. (4) The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding”. It is clear that in this case the motorist has not been treated unfairly due to breastfeeding, as they been treated the same as other motorists would be, as every motorist that enters the site and agrees to remain parked on site enter into the same terms and conditions contract. The appellant received a PCN because a computer calculated the difference between the motorist’s entry and exit times and determined that the motorist overstayed the time paid for. While a passenger in the vehicle may have been breastfeeding at the time of the overstay, this did not have no material effect on the PCN being issued. When parking on private land, a motorist forms a contract with the operator by parking their vehicle on the site. The terms and conditions of the contract are outlined in the signage offered at the site. In this case, as the motorist has remained at the car park for longer than the time paid for, the terms and conditions of the contract have not been met. As such, I conclude that on this occasion the operator has issued the PCN correctly.