Accusations that Parking on Private Land Appeals operates an unwritten ‘50/50’ rule to achieve the appearance of impartiality have been tackled head-on by the body’s lead adjudicator Michael Greenslade.
Greenslade uses his third annual report to counter claims made by some parking operators that his organisation seeks to balance the overall numbers of appeals won by drivers and parking companies. “The idea that there is a deliberate policy of seeking to strike a balance between motorists and operators is wrong,” he writes. “It is also damaging to the reputation of the appeals service.”
POPLA is the body that adjudicates on appeals lodged by motorists who have been issued parking charge notices for breaching terms and conditions in privately owned car parks operated by members of the British Parking Association’s Approved Operator Scheme (AOS). The service is free for drivers to use, with parking companies paying a fee per case whether they win or lose.
The POPLA annual report for 2014-15 shows that drivers won just over half of the 31,465 appeals heard, but Greenslade says this outcome is a result of each case being assessed on its own merits and not the result of a formula. However, the idea that there is a ‘50/50’ formula has been raised by parking companies that have left the BPA’s AOS to join the rival Independent Parking Committee, which operates its own appeals system.
“There continues to be some sort of myth that POPLA has targets to meet, in that 50% of appeals must be allowed and 50% refused,” said Greenslade.
The accusations made against POPLA have chimed with statements made about the statutory tribunals, Parking and Traffic Appeals Service and the Traffic Penalty Tribunal. Greenslade finds this worrying as it undermines belief in the system.
“Let me categorically state that this is simply not true. POPLA has no such targets whatsoever,” he said. “Since I meet frequently with the chiefs of the three statutory tribunals in England and Wales, and indeed have myself sat in each of those tribunals, I know it to be equally untrue as regards all of them. Anything else would be unlawful. I also have no doubt that the same goes for the tribunals in Scotland and Northern Ireland.”
Greenslade says that neither the BPA nor the Independent Scrutiny Board for Parking Appeals (ISPA) that oversees POPLA have ever expressed any concerns in the independence of the appeals system nor raised concerns over its decisions.
“Whilst it may naturally be disappointing for any party to lose an appeal, the overwhelming majority of parties do not then suggest that the system itself is somehow wrong. Perhaps surprisingly, the greatest criticism has come not from disappointed appellants, but rather a very small minority of enforcement authority officers and private car park operators.
In his second report, covering 2013-14, Greenslade underlined the independence of POPLA and its assessors from the influence of either the BPA or the parking companies who are members of the AOS. He reasserts the independence of the appeals service this year, stating: “I might also add, that whatever may happen in any other non-statutory appeals service, no party (appellant or operator) pays a fee to POPLA for an appeal, thus there can be no question of different charges depending on the outcome.”
Waiting on the Supreme Court
Arguments over genuine pre-estimate of loss (GPEOL) has not been a major theme in appeals over the past year, but this is a key theme in the high profile court case of ParkingEye vs Beavis, which is currently being considered by the Supreme Court.
Greenslade says that the case hinges on two issues: whether the charge was unenforceable at common law because it was a penalty; and whether it was unfair and therefore unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999.
Parking on Private Land Appeals (POPLA) is adjourning hearing appeals where the outcome of the Supreme Court could be a factor. This means around 1,500 appeals have been adjourned to a provisional date for determination of Monday 9 November 2015.
Greenslade says: “In the meantime, no enforcement action can proceed once a case is registered at POPLA, before the POPLA appeal is determined. Further, there is absolutely no requirement to pay any sort of ‘administration charge’ to the operator, in order for the case to be taken out of the list. The only party that can withdraw an appeal at POPLA is the appellant who registered it in the first place.”
The decision only applied to parking charges issued by members of the British Parking Association’s Approved Operator Scheme. The Independent Appeals Service (IAS), which hears appeals relating to notices issued by members of the Independent Parking Committee scheme is continuing to hear cases where genuine pre-estimate of loss is an issue.
Feedback to the sector
The main issues coming before assessors continue to involve arguments over signage in car parks, Greenslade reports. The lead adjudicator also looks at ongoing issues relating to the accuracy of CCTV and ANPR evidence.
For example, he says: “It is not at all uncommon for an assessor to have before them an appeal in which the appellant says that although there is a picture of the number plate, the registration mark cannot be seen in the image showing the whole vehicle at the location. In these cases the burden is on the operator to explain how this has come about.
“Another issue arising in ANPR cases is where the appellant accepts that they entered and left as alleged by the operator but claims also to have left and returned between the two times. The assessor will have to determine this particular issue, like others, on the evidence produced."
Getting processes right
Greenslade highlights some problems that recur in relation to parking operators’ handling of representations and appeals. It is important that operators respond to drivers’ representations in a prompt manner, he says. “Operators should send the notice of rejection to the appellant, whether by post or electronically, on the same day as it is dated and the same day indicated within the verification code.”
In some instances, companies are not making it clear that drivers have a right to appeal. He writes: “When a motorist makes their original representations, confusion is still caused when operators do not make completely clear that the recipient of a notice of rejection has the right to appeal and also, just as importantly, that there is a time limit.”
If the operator is not going to consider the matter further, they should inform the appellant immediately and remind them of the time limit for appealing to POPLA. “Delay and confusion can be caused in cases when an operator issues an appeal form and verification code but then subsequently enters into further correspondence with the party whose representations they have rejected, rather than referring them to POPLA,” he says.
Operators should also avoid sending letters or emails that might appear to imply that the correspondence has been sent by, or on behalf of, POPLA. “Letters signed with designations such as ‘appeals assessor’ or ‘adjudicator’ are equally not acceptable. Terms like ‘appeal’ when used in respect of the motorist’s representations to the operator only serve to cause confusion,” says Greenslade. “In one instance I had to request an operator refrain from styling one of its employees ‘Lead Adjudicator’, which could only cause confusion for the motorist. I am pleased that the operator agreed to do this immediately when I brought it to their attention.”
He has also told some parking companies to stop mentioning POPLA in documentation issued to drivers who receive documentation in Scotland and Northern Ireland, as the appeals service does not cover these parts of the UK. The BPA had issued a reminder to all its members of their responsibility to have the correct information on their documentation, he reports. “Ideally, operators should use separate stock forms, appropriately printed for the country of issue,” says Greenslade. “Alternatively, if using the same ones, it should be made very clear that an appeal to POPLA would only lie where the notice was issued for a parking event in England or Wales. I am aware that some operators do have notices with wording of this nature.”
He details cases where POPLA has referred shortcomings that have emerged in the documentations and processes of specific parking operators back to the BPA. For example, the lead adjudicator reported ANPR Ltd to the BPA when it emerged the operator was sending drivers letters of rejection stating that it would be “prudent” for them not to take their claim to appeal. The investigation process that followed resulted in ANPR Ltd’s membership of the AOS being terminated.
In another case, Greenslade sent the BPA 60 specimen instances where there had been excessive delay of many months in a notice of rejection being issued by ParkingEye following original representations by the motorist. “However,” he said, “it should be said that this particular operator almost invariably gives the motorist a further 14 days to produce any further evidence.”
Understanding keeper liability
Some parking operators still wrongly believe that being a vehicle keeper is the same as being the vehicle’s owner, observes Greenslade. Schedule 4 of the Protection of Freedoms Act 2012 provided that, in certain prescribed circumstances, a creditor has the right to recover any unpaid parking charge from the keeper of the vehicle. A creditor can obtain vehicle keeper data from the DVLA if they are a member of an accredited trade association such as the BPA or IPC.
“There appears to be continuing misunderstanding about Schedule 4,” he says. “Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle,” he writes. Whether or not the keeper is the owner is not relevant. Unlike the statutory schemes, under Schedule 4 there is no concept of ‘owner liability’. The word ‘keeper’ means the person by whom the vehicle is kept at the material time, which, in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the person in whose name the vehicle is registered, that is the registered keeper. Presumption is just that, it is something that can be rebutted and may be an issue for the assessor to determine.”
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver, advises Greenslade. “Operators should never suggest anything of the sort,” he says. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”
There are also occasions where POPLA receives appeals where it is not clear who the appellant is, or who the operator claims is liable for the parking charge. “It can sometimes be the case that the person who makes original representations to the operator is neither the driver nor the keeper,” says Greenslade. “For example, a resident who has issued a guest with a visitor voucher, but for some reason the guest’s vehicle is then issued with a parking charge notice, says that they will take care of the matter as they know visitors can park in that bay, or a Blue Badge holding passenger who helpfully suggests that they will themselves write in about a parking charge notice issued to the vehicle they were being carried in. Sometimes a parent or employer may write in to the operator on behalf of the driver, but it seems that the operator does not read the representations carefully enough to appreciate this.
“It appears that sometimes an operator may treat whoever makes original representations as being the driver. By the time the matter comes to appeal it may be unclear who the driver was and then be too late to pursue the keeper.”
Mitigation appears to be a subject around which there remains misunderstanding among operators, observes Greenslade. Decisions on whether or not extenuating circumstances should lead to a parking charge notice being cancelled rest with the parking operator as POPLA assessors decide an appeal by making findings of fact based on evidence produced by the parties and application of relevant law.
“Mitigating circumstances are not a ground of appeal,” he says. “This is exactly the same position as in all the statutory parking and traffic tribunals. The operator should have considered mitigation at the original representations stage, but the assessor can refer appropriate cases back to the operator if he or she considers there are compelling reasons for doing so.”
In some cases, though, assessors do make recommendations to an operator that a parking charge notice should be cancelled or, at least, that liability for the charge itself be cancelled. This happened 39 times in 2014-15.
Greenslade reports that the number of appeals involving hospital patients and their relatives is growing year-on-year. Appellants against parking charges issued in hospital car parks often complain that the operator had ignored extenuating circumstances.
“Some operators have implied that hospitals want car park restrictions rigorously enforced and yet appellants may say that they have received a different story from the hospital concerned,” reports Greenslade. “Hospital cases, probably more than most, do require that operators step back from the bald facts and consider the whole picture.”
Allowing grace periods
The lead adjudicator notes that “grace periods” are emerging as an issue at appeals, with some drivers citing the lack of leeway being granted by parking companies. The government has made local authorities apply a 10-minute grace period on public parking but new statutory provisions about grace periods do not apply to parking on private land.
However, he points out that Paragraph 13 of the BPA’s code of practice does advise parking operators to allow drivers reasonable time to find a parking space, read signs, make payments or even decide that they are not going to park. Operators should be prepared to tell the BPA what grace periods it applies for a site.
Greenslade says: “Just as there may appropriately be a grace period at the end of the parking session there must also be a reasonable period before it is deemed to commence. As regards time to leave a car park, it must be borne in mind that there can be a delay in a vehicle physically getting out of a car park due to heavy traffic. This is not such an uncommon event as might be imagined.”
The role of appeal agencies
Greenslade advises drivers to think carefully about using third party representatives when making appeals, especially where these agents expect a fee. “Importantly, the motorist should always remember that it is ultimately their responsibility to ensure a charge due is paid,” he advises. “Any liability in law would remain with the appellant, rather than the provider of such a service.”
The 3rd report of the lead adjudicator of Parking on Private Land Appeals can be downloaded at: www.popla.org.uk
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