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Decision Successful
Assessor Name Amy Cafferty
Assessor summary of operator case
The parking operator issued the Parking Charge Notice (PCN) for failing to validate your stay in the car park.
Assessor summary of your case
The appellant has raised the following points from their grounds of appeal • they say keeper liability can’t arise due to the site not being relevant land under Schedule 4 of the Protection of Freedoms Act (PoFA) 2012; • the operator is pursuing the registered keeper of the vehicle as the driver hasn’t been identified but the operator can only transfer liability to the keeper where the land is relevant; • the land subject to statutory control including airport byelaws is excluded from the definition of relevant land set out in PoFA 2012; • they say the site in question is within Gatwick Airport Byelaws boundaries, so the site isn’t relevant land and the keeper can’t be held liable; • they say by asserting keeper liability on such land the operator has made a prohibited and misleading statement contrary to the Private Parking Single Code of Practice (The Code) section 8.1.1(d); • the appellant has provided information regarding what section 8.1.1(d) of The Code states; • they put the operator to strict proof that the location doesn’t lie within the Gatwick Airport Byelaws boundary and that the keeper can be held liable; • they say without such proof, POPLA must find that PoFA 2012 doesn’t apply and that the keeper can’t be held liable; and • once POPLA has concluded that the keeper can’t be held liable, the appeal must be allowed and the PCN cancelled. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal. The appellant has also provided 2 images showing the airport boundaries and where the site in question is located within the airport boundaries. The above evidence will be considered in making my determination.
Assessor supporting rational for decision
I am allowing this appeal, with my reasoning outlined below: It is the parking operator’s responsibility to demonstrate to POPLA that it has issued a PCN correctly. The appellant has argued as part of their appeal that keeper liability can’t arise due to the site not being relevant land under Schedule 4 of PoFA 2012 and how the operator is pursuing the keeper as the driver hasn’t been identified. They say the site in question is within Gatwick Airport Byelaws boundaries, so the site isn’t relevant land and the keeper can’t be held liable. The appellant has provided 2 images showing the airport boundaries and where the site in question is located within the airport boundaries. The driver hasn’t been identified, and the operator must meet the requirements set out in PoFA 2012 to transfer liability to the keeper, but PoFA 2012 can only be used on relevant land. The PCN has been issued on land under statutory control as airport land is not considered relevant land unless the parking operator can demonstrate otherwise. Section 3 (1) (c) of POFA 2012 discusses the relevant land definition below: “3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than— (a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980); (b) a parking place which is provided or controlled by a traffic authority; (c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.” In this case, I would have expected the operator to not only rebut the grounds of appeal submitted by the appellant but to also rebut the evidence provided. On page four of the operators evidence pack, they say they ‘are confident that there are no applicable airport byelaws relating to parking in effect at this location’, and they explain why. The operators argument appears to state that byelaws do not apply in areas where Road Traffic Enactments apply. They have not been clear on boundaries relating to where Road Traffic Enactments do and do not apply. But in any case, in places where Road Traffic Enactments apply, the land is under the statutory control of the Road Traffic Enactments. I note the operator claims that the only relevant part of the byelaws is the part labelled parking – and that this is in relation to cargo and baggage. However, other areas seek to restrict more general parking activities. For example, the byelaws include: “5(3) Obstruction – Except in an emergency, no person shall leave or park a Vehicle or cause it to wait for a period in excess of the permitted time in an area where the period of waiting is restricted by a Sign.” I am not satisfied that the operator has rebutted the motorist’s reason for appeal or their evidence provided. The operator has provided no evidence to suggest that the boundary set out on the map provided by the appellant is incorrect. That is not to say the site is certainly located within the airport boundary, and different evidence from the operator might have resulted in a different conclusion. But I have made my decision based on the evidence before me. Accordingly, I must allow this appeal. The appellant has raised other grounds in their appeal, but as I am allowing the appeal, it is not necessary for me to address these.
