Highview lied to POPLA

Thanks everyone I will upload my comments to POPLA asap and look into contacting my MP and the BPA in the morning.

***UPDATE*** POPLA Response

Decision: Unsuccessful

Assessor Name: Zara Parkinson

Assessor summary of operator case:
The operator has issued a parking charge notice for failing to obtain a valid electronic permit to park on site. As the driver of the appellant’s vehicle was not permitted to park on the site her vehicle has been recorded as overstaying.

Assessor summary of your case:
The appellant states that she does not deem herself to be liable for the parking charge notice however she has not as I have confirmed above provided details of the driver. Further the appellant has stated that POFA 2012 has not been met. The appellant has raised further points as follows;
1. No Evidence of Period Parked;
2. Highview Parking Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing;
3. The signs in this 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;
4. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate).
5. No Planning Permission from Warrington Borough Council for Mounted ANPR Cameras and no Advertising Consent for signage.

Assessor supporting rational for decision
The operator has stated in its evidence pack that it considers the appellant is the driver and keeper. Having reviewed the evidence, I do not consider the appellant has admitted to being the driver in her appeal. However, she is the registered keeper. I will therefore be considering her responsibility as keeper of the vehicle, XXXXXXX.

The terms and conditions of this site state: “2 ½ hour maximum stay, for gym members only”. Further, the terms state; If your vehicle remains on site and fails to comply with any of the terms and conditions stated below at any time, you agree to pay a £85 Parking charge (reduced to £50 if paid within 14 days): “Maximum stay period for registered Pure Gym members vehicles only. Members must register their vehicles using the touchscreen console inside the gym to validate their parking”. The operator has issued a parking charge notice for failing to obtain a valid electronic permit to park on site. As the driver of the appellant’s vehicle was not permitted to park on the site her vehicle has been recorded as overstaying.

The operator has provided copies of its signage, including a site map. I am satisfied, that the operators signage does adhere to the requirements of Section 18 of the British Parking Association (BPA) Code of Practice, which outlines the minimum requirements in relation to signage.

Further, the operator has provided photographs from its automatic number plate recognition cameras. These captured the vehicle entering the site on 16 August 2018 at 12:06 and exiting at 13:44, which is a total stay of one hour and 37 minutes. The operator maintains a list of individual vehicle registrations authorised to park each day. In its evidence, it has demonstrated that the appellant’s vehicle, XXXXXXX was not registered to park on the date of contravention.

Further, the operator has provided copies of its notice to keeper that it sent to the appellant. In order for the keeper to be liable for the parking charge, the operator has to follow the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA). Having reviewed the evidence, I consider that there looks to be a contract between the driver and the parking operator, and the appellant has not provided a current name and address for service for the driver.

Further, the notice sent complies with the relevant provisions. I am satisfied that the operator has met POFA to transfer liability. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice.

The appellant states that she does not deem herself to be liable for the parking charge notice however she has not as I have confirmed above provided details of the driver. Further the appellant has stated that POFA 2012 has not been met. With regards to this point I would just confirm as I have above that I am satisfied that the operator has complied with the relevant provisions in order to pursue the appellant as the keeper of the vehicle.

The appellant has raised further points as follows;
1. No Evidence of Period Parked;
2. Highview Parking Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing;
3. The signs in this 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;
4. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate).
5. No Planning Permission from Warrington Borough Council for Mounted ANPR Cameras and no Advertising Consent for signage.

I must clarify that in an ANPR camera-controlled site such as this one, there is no requirement to show the vehicle parked, only the entry and exit time. As the appellant’s vehicle remained on site the driver of the vehicle was making use of the facilities provided by the operator regardless of whether the appellant considered the vehicle to have been parked for the full duration of stay.

The appellant has also asked POPLA to consider landowner authority. The operator has provided a witness statement signed on 17 October 2018, by John Michael Graham on behalf of the landowner Pure Gym Ltd. This witness statement confirms that operator Highview Parking has had the authority of the Landowner to undertake parking management, control, and enforcement at the site since 28 October 2014. The witness statement includes instructions from Pure Gym Ltd for the operator to pursue parking charges in accordance with the British Parking Association Approved Operator Scheme Code of Practice.

The operator has provided photographs of its signage at the site. I am of the opinion that had the landowner ended the agreement with the operator between then the operator’s signage would not remain in place. I accept on review that the operator does have authority from the landowner to operate on this site.

I note that the appellant has questioned the signage at the site. As such, I must consider if the parking operator has met the requirements of Section 18 of the BPA Code of Practice which outlines the minimum requirements in relation to signage. In response, the operator has provided copies of its signage. It has also provided a site map.
Section 18.1 of the BPA Code of Practice states the following: “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
Furthermore, Section 18.2 of the BPA Code of Practice states: “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”
Having considered the evidence provided, I am satisfied that the operator had installed a suitable entrance sign at this location and this was sufficient to make motorists aware that the parking is managed on this particular piece of land.

Additionally, Section 18.3 of the BPA Code of Practice states that: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” Having considered the signage in place, I am satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and conditions to the motorists’ attention.
In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.” The legal basis for the charge stems from the signage that the motorist has agreed to when parking their vehicle. By parking the vehicle on site, the motorist is agreeing to the terms and conditions of the site.
The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.

The BPA Code of Practice contains guidelines for the use of ANPR cameras within Section 21. The parking operator states it fully complies with this. In relation to Section 21.1 the parking operator uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras and it is made clear that ANPR technology is in use on site.

Further the signage states; “We may contact the DVLA to request details of the vehicles registered keeper and may send a charge notice to the registered keeper by post”. I am satisfied with the parking operator’s signage at the site and therefore satisfied that they have complied with Section 21.1.
Again, had the driver of the appellants vehicle have been unhappy with the terms I am satisfied that they would have been able to exit the site.

With regards to the last point raised by the appellant I must clarify that I have already confirmed that the operator has demonstrated that it has the authorisation to erect signs at the site.

After considering the evidence from both parties, I am satisfied the parking charge notice has been issued correctly and the operator has followed POFA to transfer liability to the keeper. Therefore, this appeal must be refused.

Here is the NtK sorry for the bad quality but I had to use old photos as I don't have it with me right now;

hxxp://i64.tinypic.com/hvtetz.jpg
hxxp://i68.tinypic.com/14a979x.jpg

I am definitly going to contact my MP they can't continue this practice!