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    • FranzFerdibland
    • By FranzFerdibland 15th Dec 17, 11:17 AM
    • 7Posts
    • 20Thanks
    ParkingEye POPLA Won 2 Lost 1
    • #1
    • 15th Dec 17, 11:17 AM
    ParkingEye POPLA Won 2 Lost 1 15th Dec 17 at 11:17 AM
    Morning all,

    I look after the fleet for the company I work for, and have been following things closely on Pepipoo and here, as we get quite a lot of these, and I’d become fairly fed up with having to pay them.
    On that front – you guys are doing excellent work here – given a bit of time, it’s possible to glean enough information from the forum, and kick these idiots where it hurts.
    Anyway, we had one driver caught twice, and then a second driver, all in the same ParkingEye controlled car park in Manchester.

    Most of our vehicles are hire vehicles, so I figured I could shut all three of the PCNs down with POFA 2012 arguments for a shortage of paperwork provided with the Notice to Hirer.

    I sent off the initial appeals, and of course it ended up with POPLA.
    Sent off POPLA appeals and rebuttals, and two came back quickly as being successful, the below being an example of the response we had:

    From the evidence the operator has provided, I can see that the operator is pursuing the appellant as the hirer of the vehicle, as such, the provisions laid out in PoFA 2012 , will need to be followed in order to transfer liability from the keeper of the vehicle, to the hirer of the vehicle. PoFA 2012, paragraph 4 (1) states, “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”. This continues to state in Section 13 (2) “The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given – (a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) A copy of the hire agreement; and (c) A copy of a statement of liability signed by the hirer under that hire agreement. Followed by section 13 (5) “The documents mentioned in sub-paragraph (2) must be given by- (a) Handing them to the creditor; (b) Leaving them at any address which is specified in the notice to keeper as an address at which documents may be given to the creditor or to which payments may be sent; (c) Sending them by post to such an address so that they are delivered to the address within the period mentioned in that sub-paragraph”. From the evidence provided to me by the operator, I can see that a notice to keeper was issued to a hire company, followed by a notice to hirer. As such, I would expect the operator to demonstrate that they then provided the relevant documents to the hirer, as required in the PoFA 202. There has not been evidence provided to demonstrate that these documents were sent to the hirer. As such, the operator has not shown that they have followed the PoFA 2012, section 13, “notice to hirer”. In this case, I can only conclude that PoFA 2012 was not followed and therefore, the Parking Charge Notice was not issued correctly. Accordingly, I must allow this appeal. I note the appellant has raised further grounds of appeal. However, I do not need to look at these as I have allowed the appeal.

    The third appeal, however, took a week longer, and then came back yesterday as being unsuccessful. Reasoning below:

    The terms and conditions state: “Parking Tariffs apply 24 hours a day, 7 days a week” and that “Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator’s case file includes photographs of the signage at the site clearly showing these terms. The operator has also provided photographic evidence of the vehicle arriving at 10:51 and departing at 11:21, remaining for a total of 30 minutes. In addition, there is a system print-out showing that no payment was made. To be clear, POPLA assesses appeals on a case by case basis. We cannot and do not compare one appeal with another for the purposes of assessment. I am satisfied that the appellant, XXX XXXX, is appealing this PCN on behalf of the company XXX XXXX Ltd. Furthermore, as the appellant has neither identified the driver nor claimed not to know who the driver is, I am satisfied that the driver of the vehicle was an employee of the company undertaking duties in accordance with his employer’s wishes. The driver, as an agent of the company, had the authority to enter into contracts on its behalf. As such, I will be assessing the company’s liability for this PCN as if it were the driver of the vehicle and so the provisions of POFA 2012 are not applicable in this instance. POPLA is an evidence based service. We can only assess an appeal based on the evidence that is provided to us. The appellant says the signage is not adequate and the amount of the parking charge is not made clear. 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 the British Parking Association (BPA) Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the 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. POFA 2012 defines “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 terms and the parking charge to the attention of the motorist. I note that the appellant has not provided any evidence in rebuttal. Therefore, having considered the decision of the Supreme Court, 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. The appellant has questioned the operator’s authority to issue and pursue PCNs. Section 7.1 of the British Parking Association (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)”. This “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 “requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. The operator has provided POPLA with a copy of the contract between itself and the landowner, which, on the balance of probability, I am satisfied means the operator had the authority to issue this PCN. I would note again that the appellant has not provided any evidence to suggest that this is not the case. Ultimately, the terms and tariffs are clear, but no payment was made. As such, the operator correctly issued the PCN and I must refuse this appeal.
    So there you have it, apparently. In this instance, the company I work for is being pursued as the driver, and therefore POFA 2012 does not apply.

    I’ll be honest; I haven’t got as far as reading through the next steps, as I didn’t think I’d have to, but I thought this might be a useful bit of info for everyone, particularly fleet managers. Initially, I thought we’d got an easy catch all, but it looks as though things could be more complex. I have to say, I’m surprised that this result is so far removed from the other two.

    Be interested to head anyone else’s thoughts on this too, of course.

    Thanks in advance.
Page 3
    • FranzFerdibland
    • By FranzFerdibland 5th Feb 18, 3:22 PM
    • 7 Posts
    • 20 Thanks
    Is that literally how the letter was signed off? No actual name?

    ‘Sector Expert’, what is one of those please?
    Originally posted by Umkomaas
    There was a name underneath, I just chose to omit it. To be honest, if that were the case, it still wouldn't be the most ridiculous thing about the letter.

    Thanks for your input all - I'll respond, noting that overturned decision. I had assumed, given the way that it was put in the letter, that no such instance would have occurred; obviously not.
    I won't hold out much hope though.

    Surely a response like this, where POPLA actively discredit their own decisions but refuse to change them, would count against them in court?
    • nosferatu1001
    • By nosferatu1001 5th Feb 18, 4:17 PM
    • 2,516 Posts
    • 3,081 Thanks
    It would certainly help if you wanted to sue for damages due to their professional negligence, which they happily keep admitting is the case, and the fact they lie about being unable to overturn decisions won!!!8217;t make them look any good...
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