I have today received my appeal decision from POPLA. It was unsuccessful. The following are the notes from the assessor - I have tried my best to separate it into readable paragraphs but it is still a long slog. I appreciate anyone that takes the time to read it and offer advice.
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Decision
Unsuccessful
Assessor Name
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Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) due to parking in no parking area.
Assessor summary of your case
The appellant has provided a detailed account surrounding the parking event in question. For the purpose of my report, I have summarised the grounds raised into the points below.
• They advise it is not safe to read the signs from the driving position of a vehicle and is necessary to stop first and the operator has not shown any sign was visible from a moving vehicle to stopping and due to this, a consideration period is required as per section 2.9 of the Private Parking Single Code of Practice.
• They say the supplied evidence does not show the vehicle was not parked for longer than the minimum consideration period and the images show the vehicle was stopped for a little as 90 seconds.
• They advise the notice to keeper issue does not comply with the Protection of Freedoms Act 2012 (PoFA) and the handful of timestamped images are not sufficient as per paragraph 9(2)(a) and has said this is supported by Brennan v Private Parking Solutions (2023), where they say the court held that a timestamp does not establish a period of parking and due to this, there can be no liability to the keeper of the vehicle.
• They say the operator has inaccurately referred to the location as a car park when it is an industrial estate with no general parking areas and raises doubt on the operators understanding of the site.
• They state the operator has not demonstrated a legitimate interest or commercial justification for issuing the charge in response to a brief stop where there was no obstruction caused, and no facility used.
• They have advised the operator has to prove that a valid contract or chain of authority from the landowner exists giving them the right to manage the site and issue PCN’s. After reviewing the operator’s evidence, the appellant has reiterated their grounds of appeal. They have also raised new grounds and states the signage is prohibitory in nature and cannot form the basis of a contractual agreement, and they have said that ParkingEye V Beavis is misplaced. I must advise that POPLA does not accept new grounds of appeal at the comment stage. The comment stage is to be used to expand on the initial grounds of appeal after seeing the evidence pack from the operator. As the comments were not raised in the initial appeal, I am not required to consider these as part of my decision. All of the above has been considered in making my determination.
Assessor supporting rational for decision
When assessing an appeal POPLA considers if the operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park.
The operator has provided photographic evidence of the signage in place in the car park, which detail the terms and conditions of parking. The signs state “…No parking, waiting, loading or unloading on the roads at any time…” The motorist is also advised that failure to comply with the terms and conditions will result in a PCN being issued for £100. The operator has provided photos of the vehicle to demonstrate that it remained stationary on site.
• They advise it is not safe to read the signs from the driving position of a vehicle and is necessary to stop first and the operator has not shown any sign was visible from a moving vehicle to stopping and due to this, a consideration period is required as per section 2.9 of the Private Parking Single Code of Practice. I understand that they may have felt it was not safe to read the signs from the driving position of the vehicle. The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators need to comply with. Section 3.1.3 of the Single Code of Practice contains the requirements for signs displaying the terms and conditions. The signs must be placed throughout the site, so that drivers have the opportunity to read them when parking or leaving their vehicle. The terms and conditions must be clear and unambiguous, using a font and contrast that is be conspicuous and legible. The operator has provided various photographs of the vehicle parked, and behind the vehicle on the left-hand side, there is a sign visible on the lamppost. Also, further down the road on the right-hand side of the car, there is another lamppost on the other side of the toad which a sign visibly attached to it. I am satisfied the signs adhere to what is required in The Code and would be visible from sitting within a vehicle. Section 2.9 of The Code states the consideration period is the time the driver is in the process of parking (or in a no stopping zone while driving). In this instance, there is no visible driver within the car on the photos provided. Section 5.1 of the Single Code of Practice states that parking operators must allow a consideration period of appropriate duration, subject to the requirements set out in Annex B to allow a driver time to decide whether or not to park. In this case, as the area is a no stopping zone, the consideration is provided while driving, and as stated above, the photos show there was no one in the car when it was parked.
• They say the supplied evidence does not show the vehicle was not parked for longer than the minimum consideration period and the images show the vehicle was stopped for a little as 90 seconds. As stated above, as it was a no stopping zone, the consideration period provided is while driving, however, the photos show there was no driver present.
• They advise the notice to keeper issue does not comply with the Protection of Freedoms Act 2012 (PoFA) and the handful of timestamped images are not sufficient as per paragraph 9(2)(a) and has said this is supported by Brennan v Private Parking Solutions (2023), where they say the court held that a timestamp does not establish a period of parking and due to this, there can be no liability to the keeper of the vehicle. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. Parking operators have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper. They have quoted paragraph 9(2)(a) which states the notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates. On the PCN, the photos contain two-time stamps which are 11:32 and 11:33. I am satisfied that the time stamps adhere to what is required. They have quoted Brennan v Private Parking Solutions (2023), where they say the court held that a timestamp does not establish a period of parking, however, this was when the photo contained one time stamp. In this instance, the PCN includes two different times, and the evidence provided shows three different times.
• They say the operator has inaccurately referred to the location as a car park when it is an industrial estate with no general parking areas and raises doubt on the operators understanding of the site. When we carry out an investigation, we are investigating if the PCN has been issued correctly. If they have any issues with wording the operator has used, they will need to raise this to it directly.
• They state the operator has not demonstrated a legitimate interest or commercial justification for issuing the charge in response to a brief stop where there was no obstruction caused, and no facility used. The operator has demonstrated that the vehicle was parked with no driver present with photos showing time stamps 11:32, 11:33, and 11:34. While there was no obstruction or facility used, the vehicle was parked and left unattended which broken the terms of the site.
• They have advised the operator has to prove that a valid contract or chain of authority from the landowner exists giving them the right to manage the site and issue PCN’s. Section 14.1 of the Code states that where controlled land is being managed on behalf of a landowner, written confirmation must be obtained before a parking charge can be issued. In this case, the operator has provided evidence which shows the contract started with the landowner on 7 February 2024 for 12 months and continued after this date and would terminate if 12 weeks’ notice in writing had been provided. I am satisfied the operator has met the requirements of section 14 and a contract to enforce PCN’s was in place the date the appellant parked. POPLA’s role is to assess if the operator has issued the charge in accordance with the conditions of the contract. As the terms and conditions of the car park have not been met, as the vehicle was parked in a no parking area, I conclude that the operator has issued the parking charge correctly, and the appeal is refused.
