Good afternoon all,
Finally received a response from POPLA and they have stated the appeal was unsuccessful. The following information was provided;
The appellant has raised the following points from their grounds of appeal: • The Notice to Keeper (NTK) does not comply with PoFA. • The operator has not shown the person they are pursuing is the driver. • The signage is deficient and there are no ground markings to delineate the different car parks which have different terms. • The signs are contradictory by advising of a 1 hour max stay. • There is no evidence of landowner authority. • The operator has breached the joint single Code of Practice. The appellant has expanded on their grounds of appeal after reviewing the operators evidence pack and states they operator has not responded to points 1 and 2 and the notice does not comply with PoFA and the operator cannot demonstrate who was driving. The LOA only runs for 3 years and rolls over subject to clause 8, but as clause 8 is redacted no proper oversight can be seen. The appellant has provided the following as evidence to support their appeal: • A copy of the PCN and images of signs from site. The above evidence will be considered in making our determination.
Their decision is as follows;
POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal. I acknowledge the appellants grounds of appeal and evidence provided of the PCN and images of signs on site. I note the signs advise there is a 1 hour max stay between 10am and midnight, no parking is permitted outside the times on the signs. I appreciate the appellant was not the driver and as such, I need to establish if the operator has complied with the requirements of the Protection of Freedoms Act (PoFA) 2012. 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 must be adhered to. The Protection of Freedom Act 2012 (PoFA) schedule 4, is a piece of legislation which enables operators to pursue the keeper of a vehicle when they do not have the drivers name or contact details. I have reviewed the PCN and note that the breach occurred on 11th June 2024, and the PCN was issued on 14th June 2024, well within 14 days specified in PoFA. The Notice to Keeper goes on to state that if after 29 days the full amount has not been paid and they do not know the name and address of the driver, they have the right to purse the registered keeper. It also instructs the keeper to pass the notice to the driver. As such, I must conclude that the operator has complied with the requirements of PoFA and can hold the keeper liable. I have reviewed the parking operators evidence pack, and it has provided images of signs throughout the site and upon entry which make the terms clear, and parking is free for 1 hour but only between 10am and midnight as stated above. The appellants own images demonstrate this and it’s the responsibility of the driver to review the signs once parked and comply. I note there is a McDonald’s restaurant on the other side of the site, but this is separated by a road as demonstrated by the operator’s evidence pack. I find this more than clear to show that the two sites are clearly different, and the driver parked on the KFC site for 18 minutes from 09:32 to 09:51, when no parking was permitted. The BPA Code of Practice section 7.1 relates to written authorisation and states: 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 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 (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges. I have reviewed the landowner agreement provided by the operator and it clearly outlines the site in question, has a start date of February 2020 and an initial term of 3 years, rolling thereafter unless cancelled. The agreement is signed by both parties, and I find this more than sufficient to demonstrate the operator has authority to issue PCN’s on the land in question. I note that section 8 has been redacted but this only relates to ending the agreement or service. This only outlines how the landowner can end the agreement and as no agreement cancellation has been provided and the fact that signs are still in place on site, I find that the operator still has authority to issue PCN’s. The joint single Code of Practice only became active on 1st October 2024, as the breach occurred in June 2024, it is not bound by the new code. I must re-iterate that as the driver parked on site for 18 minutes before 10am, during the no parking period, the PCN was issued correctly. After considering the evidence, I can see that the terms of parking were made clear, and that the driver broke them by remaining on site without authorisation. I am satisfied that the PCN was issued correctly and refuse this appeal. Any questions relating to payment of the parking charge should be directed to the operator.
I would greatly appreciate some advice on what to do next,
Many thanks!
