POPLA Decisions

Case Number: 2922744008

10 November 2014

Reasons for the Assessor’s Determination

As the appellant does not admit being the driver of the vehicle, and no evidence of this has been presented, but the driver has not been named, the only route by which the appellant can be found to be liable for the parking charge is as the keeper of the vehicle. In order for this liability to exist, the operator must demonstrate compliance with a number of provisions contained within Schedule 4 of the Protection of Freedoms Act 2012.

I find that the appellant has failed to demonstrate compliance with paragraph 9(2)(e), which requires the operator to include within a document known as a ‘Notice to Keeper’ a statement that the creditor does not know the name and current address for service for the driver and a statement inviting the keeper to pay the charges or provide the name and current address for service to the creditor. These are separate obligations, and must be met separately. I find that the operator has fulfilled the latter requirement but not the former. Therefore, I am unable to find that keeper liability applies in this case, meaning that the appellant cannot be held to be liable for the parking charge.

Accordingly, I must allow the appeal and need not consider the appellant’s substantive case.

Christopher Monk
Assessor

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Well that's a new one for Christopher Monk and Highview notices!

Reasons for the Assessor’s Determination
The Operator issued parking charge notice number -- arising out of the presence at --, on --, of a vehicle with registration mark -- for parking without a valid permit or authority.

It is the Operator’s case that the Appellant’s vehicle was parked at the site without a valid permit or authority and this was a breach of the terms and conditions of parking as set out on signage at the site.

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 parking charge amount is not a genuine pre-estimate of loss.

As the Appellant has raised the issue of the charge not being a genuine pre- estimate of loss, the onus is on the Operator to prove that it is. The Operator has responded by stating that the charge is a genuine pre-estimate of loss. The Operator has provided a table showing the losses they have incurred as a result of the Appellant’s breach. I note that the operator states their initial loss to be the cost of the warden and associated vehicle costs.

Whilst I appreciate that in some cases e.g. where the car park is a pay and display one, the issuing of the parking charge notice may be held to be an initial loss, in this circumstance the car park is free and therefore there is no initial loss. The Operator has not shown that the Appellant caused a loss to themselves or the landowner by parking without displaying a valid permit.

Considering carefully, all the evidence before me, I find that as the Operator has not shown that they have incurred an initial loss as a result of the Appellant not displaying a valid permit and therefore the charge sought is not a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

Nozir Uddin
Assessor

Reasons for the Assessor’s Determination

At --, on --, a parking operative observed the Appellant’s vehicle parked at --.

The Operator’s case is that the Appellant breached the car parking conditions by parking without a valid permit or authority.

The Appellant made representations stating his case. One of the points raised by the Appellant was that the sign is not visible in darkness. The Appellant submits that there is no lightning at the site and the sign is not prominent.

The Operator is seeking to rely on an agreement between itself and the Appellant that the Appellant would park in accordance with the conditions or face liability for a parking charge. For such a term to be included in the agreement, it must be ‘incorporated’ into the agreement. The only relevant method of incorporation, in this case, is by notice. This means that the Appellant must have been made aware of the term, before the agreement was made, in order for it to be deemed part of the agreement. The Appellant will be deemed to have been made aware of the term if the Operator had taken reasonable steps to bring the term to the Appellant’s attention. The usual method by which an Operator takes ‘reasonable steps’ is by displaying clear signs around the site advertising the terms of parking.

Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear.

There appears to be no dispute between the parties that it was dark when the Appellant was at the site. The Operator has not produced any evidence to demonstrate that the terms of parking were clearly displayed at night time. Although I note that there is signage at the site, the pictures of signage submitted by the Operator had been taken in the day time and there is no indication that they were illuminated and clearly displayed at night time.

Consequently, I must find that the Operator has failed to demonstrate that it took reasonable steps to bring the terms of parking to the attention on the Appellant.

I need not deicide any other issues.

Accordingly, the appeal is allowed.

Sakib Chowdhury
Assessor