How to win your POPLA appeal
The Parking on Private Land Appeals service (POPLA) for British Parking Association Ltd member companies has been running since October 2012. In that time it has heard thousands of cases creating a body of knowledge about how parking ticket appeals are decided. This knowledge can be used to significantly increase the chance of winning your POPLA appeal, irrespective of whether or not you contravened the parking rules. Below, we discuss some of the winning and losing appeal points that you could use in your own POPLA appeal.
Despite the guidance on the POPLA website, an appeal can be made on any grounds. Grounds for appeal could be ‘genuine’ (e.g. the terms were not broken, or there were mitigating circumstances), or technical legal arguments. Perversely, POPLA have refused appeals where the motorist is in the right (e.g. there were mitigating circumstances), and allowed appeals where the motorist is in the wrong (i.e. they broke the parking rules, but there were other grounds to cancel the ticket). Below we discuss a number of appeal points which can be used when writing your own POPLA appeal for tickets from private parking companies such as Parking Eye and UK Parking Control.
Before we consider appeal strategies there are a couple of important points to bear in mind when making a POPLA appeal:
- The burden of proof is with the parking company: Many appeals have been won by asking the parking company to prove their assertions (e.g. they have a right to issue tickets, the charge does represent a genuine pre-estimate of loss). If the assertions aren’t refuted, then they should be upheld
- Multiple appeal points: Don’t rely on a single appeal point; if the parking company can refute it, then you will lose. The more valid points you put in your appeal, the harder it will be to refuse it. However, the appeal points must be strong and valid – don’t overload your appeal with ‘noise’.
- Mitigating circumstances don’t work: The assessors take a very black and white view of appeals. Points such as “I was only a 2 minutes late”, or “my permit was in my other car” have not been successful since they are still technically contraventions however unfortunate they are. Do mention them by all means, but do not rely on them.
- Genuine appeal points do work: If you can clearly demonstrate that the parking charge was not issued correctly (e.g. the ANPR camera didn’t register me leave and come back, my car had been sold) then DO use those points, and back it up with your evidence.
Below are a list of appeal points which have proved to be successful. You should consider these when writing your own POPLA appeal. Please note that this is a work in progress which will be updated and added to as things develop.
Authority to issue tickets
Irrespective of whether you were in the right or wrong, a very successful appeal point is to question whether the parking company has a right to issue tickets on the land in question. Simply, the parking company must have clear authorisation from the landowner to issue tickets on their land. Usually the parking company will have authorisation. However, they must be able to prove it; and this means presenting the contract as evidence.
Experience so far has shown that parking companies do not want to provide the contract. This is probably because it contains other details that they do not want to be made public. We have also seen many cases where the contract was/is not in force on the date of the parking event, and we’ve also seen cases where the wrong parties are named on the contract (i.e. one cannot trace the rights from the landowner to the parking company).
Frequently parking companies offer a witness statement as an alternative to the contract itself. If one is provided, make sure it is signed by the landowner (as per BPA Code of Practice 22.16b). If it is not, then point that out in your appeal; it is not a valid witness statement according to the Code of Practice.
Authority to issue tickets (part 2)
Further to the above point, sometimes parking company contacts do not allow charges to be made to first time offenders. This is known to be the case in at least some Tesco and Sainsbury parking contracts where the retailer (quite rightly) does not want to issue charges to motorists unless they are repeatedly breaking the rules (e.g. not those that accidentally break the rules – the majority according to our survey).
As such, in your appeal you should demand to see a copy of the current contract for this car park citing this known, frequent clause in car parks, and put the operator to strict proof that they are allowed to issue the charge. In your argument you can cite the documented evidence from the BPA Forum minutes of 3rd November 2015:
Kate Maisey from Tesco provided the following information to the BPA ForumTesco car parks are there for customers; their focus is often different to other organisations. They are seen as more lenient than other operators, taking no action on the first offence, only on the second or third offence via an operator. The operator they contract must follow Tesco rules for customer service as it is important toTesco that the customers return. Tesco’s main business is selling items in their stores not parking.
Genuine pre-estimate of loss*
This argument used to be particularly strong until the ParkingEye Vs Beavis case. Simply, historic precedent meant that a parking company must be able to demonstrate a loss for the amount being sought. Clearly overstaying in a car park by minutes or hours could not realistically cause the parking company to lose £50 to £100, and so the charge would be deemed a penalty – unenforceable in a consumer contract. The Beavis case changed this – the charge does not need to reflect loss as long as it is not extravagant or unconscionable.
Forbidding signage (e.g. permit car parks)
Private parking schemes fall into two categories: 1) you may park here subject to our conditions, and 2) you may not park here. In the latter case, it is incompatible with contractual law. In contractual law there are three elements: a) an offer, b) acceptance, and c) consideration. If one of these is not present, then logically there is no contract. In the case where the signage is written in such a way that it forbids you from parking, then logically there is no contract. If there is no contract, the terms of that contract cannot be enforced (e.g. the £100 parking charge for breaching the contract).
This sort of signage is very common; both in terms of the scenario, and in terms of how the signage is written. Examples of where this sort of contract may be offered are permit-holders only car parks and airport roads (e.g. private land with no stopping zones). You should note, however, that some parking signage does deal with this by stating something to the effect of “You may park without a permit for the cost of £100 per day”. If you receive such a ticket, you should review the signage.
Whilst a contract may not be able to be enforced, instead the driver could be sued for trespass. However, trespass can only be claimed by a party with an interest in the land (e.g. owner, lease holder), but a typical parking company contract would not provide this level of interest in the land. So, the motorist could theoretically be sued for trespass, but probably not by the parking company, and probably only for nominal damages – so quite unlikely.
If you receive such a ticket, we would recommend you consider the signage carefully for a forbidding contract and use this as a basis to claim there was no offer, and therefore no contract.
Burden of proof
In law, the burden of proof is on the claimant – i.e. innocent until proven guilty. The claimant must prove their case, rather than the defendent must prove they are innocent. For a private parking case, if you make a defence point that invalidates the claim, then the court should accept that unless the parking company can counter it.
For example, in a recent county court case, against Parking Eye, the claim was that a motorist overstayed. ParkingEye’s claim was that the motorist stayed 10 minutes too long in the car park, 10 minutes past the 2 hour limit. The motorist didn’t deny that he entered at 12:04 and left at 14:14. However, he also stated he left at 12:06 and returned at 14:12. ParkingEye’s claim stated they had no evidence of any other entries or exits (although we know ANPR to be flawed in this resepect), but the judge ruled that the defendants statement that the did leave and come back to have equal evidential weight. As such ParkingEye’s claim was dismissed.
So, if you can include defence points that the parking company do not or cannot rebut, then the assessor should accept them on the balance of probability.
Code of Practice breaches
All BPA AOS members are bound by the Code of Practice (CoP). Despite parking companies agreeing to follow the CoP when signing up for the Approved Operators Scheme, and supposedly being audited as part of the joining process, Parking Cowboys has rarely seen a parking company follow it to the letter. Examples of breaches of the CoP are where the parking company does not allow for a grace period, does not fulfil the requirements for keeper liability, or does not meet the specified timescales during the enforcement/appeal process – but there are literally dozens of points they could fail on.
To check compliance, you should download the Code of Practice to review against your case, or check the various parking forums for the latest cases involving that parking company. Once you’ve identified the list, include them in your appeal.
Identity of the driver where not using PoFA
As talked about elsewhere on the site, keeper liability was introduced as part of the Protection of Freedoms Act in October 2012. This tip will help you if you are being pursued by the parking company as keeper of the vehicle AND the keeper has not been identified as the driver.
Quite often, parking companies fail to follow the requirements set down in the Protection of Freedoms Act in order for them to use keeper liability. For example, not identifying the creditor, or serving notices outside of the timescales set down in law. Quite simply, if they meet the requirements set out, then they have a right to persue the keeper of the vehicle for the charge they would otherwise be pursuing the driver for (NB. this does NOT necessarily mean the charge itself is valid). If the parking company fails to meet these requirements, then they must pursue the driver.
So, if you can demonstrate that they have not met these requirements (check on our keeper liability checklist), then they cannot pursue the keeper. In your appeal letter you just need to add a statement such as that used by the Parking Prankster for a slam dunk win:
[The parking company has not met the keeper liability requirements] and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.
Keeper liability requirements not achieved
If the ticket was issued by post (as most are) and is issued to the keeper (known as a Notice to Keeper, NTK) then for the keeper to be liable under the provisions of the Protection of Freedoms Act, the NTK must meet a stated set of requirements. The requirements and the issues of keeper liability are described in more detail here.
If the NTK does not meet the requirements (for example, by not stating the period the car was parked for), then the keeper cannot be held liable under POFA. In your appeal you should state what aspects of the POFA requirements are not met so that the assessor cannot ignore this point.
Definition of parking
Were you even parked? Quite often PPCs will issue tickets for all sorts of scenarios, such as stopping to take a phone call or dropping off passengers. These aren’t actually legally defined as parking. The accepted legal definition of parking is to leave a car somewhere. Have a look at our detailed analysis of the definition.
So if you weren’t parked according to that definition, and the alleged contract was for parking, then you arguably haven’t entered into a contract, and therefore can’t be in breach of contract.
ANPR is flawed
In a ruling in May 2014, POPLA accepted an appeal on the basis that the ANPR cameras used by ParkingEye were flawed. The motorist claimed that they visited the car park twice in a day (this is termed as double-dipping), but ParkingEye issued the ticket based on the 1st entry and last exit (i.e. one long stay). Anecdotal evidence shows that this sort of case happens reasonably frequently, indicating a flaw in either the technology (e.g. not always recognising number plates) or the business process (e.g. ParkingEye not checking their records correctly). Research done by the Parking Prankster has shown that the technology is certainly fallible.
In this appeal the motorist cited only the potential flaw in the ANPR technology, forcing POPLA to make a decision on that appeal point alone. The assessor ruled that whilst they thought it unlikely, the operator ought to be able to prove its case. Since they did not, the appeal was upheld.
In the determination, the assessor wrote:
However, the Appellant’s case – that his first exit and subsequent re-entry were both missed whilst his entrance and exit at XX:XX and XX:XX were both recorded – is unlikely
This author believes the assessor is using flawed maths when making that statement. If we were to assume that the technology correctly reads number plates 97% of the time as a vehicle exits or enters a car park, and that there were 100 cars a day in a given car park that visited twice, then every 10th day a car would fall foul of the ‘double-dip’ ticket at that car park. As a consequence it is a statistical certainty that POPLA would get appeals on this basis. You may want to add a statement along these lines in your appeal to proactively rebut the unlikelihood argument.
Smart phones use location tracking technology to provide useful features to users. If you have a mobile phone with location tracking enabled, you might be able to use it to demonstrate your whereabouts at the time of the ticket. This might be useful if you received a ticket for an ANPR ‘double-dip’ where you visited the car park twice in a day, but the parking company claim you were there all day. If your phone has collected this data, you can provide it as evidence to show you were elsewhere at the time in question, on the balance of probabilities.
ANPR signage requirements
A strong appeal point for ANPR tickets (issued in the post after the event, usually for overstaying) relates to the requirements set down in the British Parking Association’s Code of Practice relating to signage. The BPA’s states the following:
21.1) You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
There are two key points to this statement that could be the basis of a successful appeal. Firstly, the cameras must be used in a transparent manner. Now, the problem with ANPR tickets is that they time how long you were in the car park, not how long you were actually parked. If the signage states ‘Free parking for 2 hours’, you may assume you can park for 2 hours. However, in an ANPR car park, if you were to park for 2 hours and take 10 minutes to find a space, and 5 minutes to exit the car park, you may be judged to have stayed 2 hours and 15 minutes. This author would argue therefore that in order to meet the transparency requirement, the signage should state the timing is from the point of entry and exit to the car park. If that is not done, how could a motorist have reasonably known this?
The other important point is that the signage must syaye what the parking company will use the ANPR data for. Frequently signs in private car parks might say “car park monitored by ANPR systems”. To a member of the public this could mean anything; it could be to look for uninsured cars, stolen cars, or anything. The author would strongly suggest that for the timing to be compliant it should state that the ANPR system is used to determine the length of stay in the car park.
Both of these points have been used to successfully appeal a ticket to POPLA. As such, we would strongly recommend these arguments are cited if the signage does not meet the exact requirements of 21.1. If you can provide a photograph of the actual sign, then your case will be much stronger.
This one is applicable to ParkingEye tickets. In ParkingEye’s customer contract, it may include a ‘genuine customer’ exemption. This means that if a genuine customer gets ticketed, the ticket can be cancelled. After all, the reason a land owner employs a parking company is to stop non-customers abusing the car park – and not to deter genuine customers from using the site.
Sometimes ParkingEye will cancel a ticket if the motorist can provide some evidence that they were a genuine customer – such as a receipt. However, Parking Eye do not advertise this fact since a large proportion (probably the majority) of the tickets they issue are against genuine customers, and so this would impact their profits signifcantly.
This however, can be used at the POPLA stage too. For example, you could state “I was a genuine customer [using shops X, Y, Z] and had I known of the genuine customer exemption in the Parking Eye contract with the landowner, I would have requested my ticket to be cancelled”. Obviously this claim is strengthened somewhat by the provision of evidence such as a receipt or credit card statement.
Parking companies, such as ParkingEye, use ANPR to monitor stay lengths in car parks. Whilst effective at monitoring the time between observation of registration plates, ANPR is flawed for monitoring the length of time a car was parked before. The ANPR cameras are parked at the entrance and exit of the car park, recording when a car passed it. However, the time between the two photographs would be the time parked, PLUS the time looking for a space, and the time leaving the car park. In busy car parks this could add up to quite a period of time.
In any appeal for an overstay we would recommend that this inherent flaw in ANPR systems is pointed out and that the parking company do not know how long your were parked for, only the times that your car entered and exited.
The British Parking Association recently updated its Code of Practice to require parking companies to allow a minimum of 10 minutes to exit the car park at the end of the parking period. This means, for example, that if you were timed spending 2hrs 9 minutes in a 2hr limit car park, then your ticket should be cancelled on appeal based on this rule.
Now, the 10 minute grace period applies only to the period after parking. However, it is completely logical that if it takes 10 minutes to leave the car park, it could have equally taken 10 minutes to park the car in the first place. Therefore, in your POPLA appeal you could make this argument if you spent up to 20 minutes over the end of the parking period.
Further, 10 minutes is just an arbitrary figure picked by the British Parking Association. We have heard of cases where it has taken over half an hour to exit a car park due to the surrounding roads being busy. Given that the Code of Practice acknowledges the need for a grace period, it is worth making the argument that it is an arbitrary number, but that in your case it took longer.
Parking contracts are communicated via signage. The question is whether the signage is considered adequate to establish a contract. The BPA code of practice describe rules for signage which they should be compared against – although not meeting the code of practice does not necessarily invalidate the claim. Examples here could be where signage was not lit at night, or where there was no signage anywhere near where the car was parked or route into the car park. Clearly evidence would be needed to support this claim.
Signage at paid car parks
In car parks where a ticket is purchased from a machine, only the terms and conditions on/near the machine itself are binding on the motorist. The signs here make the offer to the motorist which he chooses to accept by buying a ticket. A contradictory or different sign (e.g. one that adds additional conditions) elsewhere in the car park would make no difference to the contract the motorist has made. For example, if the ticket machine made no mention of parking within marked bays, then no other sign could impose that condition.
The lesson here is to check the signage in the car park and confirm you’re not being ticketed for terms and conditions that you didn’t agree to when you bought the ticket.
Lack of planning permission for signage
Planning permission is usually required for erecting permanent signage larger than 0.3 square metres, which car park signs usually are. Quite often this is overlooked or ignored by parking companies when setting up their schemes. ParkingEye is known to have fallen foul of this numerous times.
There is a common law principle “ex dolo malo non oritur actio” which means that a court should not lend its aid to a man who has committed an immoral or illegal act. In this case, if the parking company has not legally erected signage, then then should not be able to profit from it. There is a detailed explanation of this at the Parking Prankster’s site.
To test this appeal route, you should contact the relevant planning authority and check whether planning permission was sought.
Signage does not meet the Consumer Contracts Regulations 2013
This law affects parking contracts from June 2014 onwards. The law is intended to put in place requirements around consumer contracts in distance selling scenarios, which arguably covers parking contracts. This argument has not, to date, been tested in court, but we would strongly recommend including it as part of a layered defence. This is especially important where there is no ‘automation’ involved in the transaction (e.g. a free car park where no payment is made – ‘automated premises’ are excluded from the regulations).
We have a detailed write up on the Consumer Contracts Regulations and example wording here.
No breach of contract
Oone could argue that there was in fact no breach. This could either be based on clear demonstrable facts (e.g. it was two visits to the car park, not one long visit). Another example might be based on a literal interpretation of the contract (the sign) which sometimes do not say what the parking company meant it to say.
Frustration of contract
This is where there is an event outside the control of the defendant which could not be reasonably foreseen. This could be, for example, where the car broke down, or where the driver was taken ill, and as a result they could not exit the car park within the limit.
Beavis not applicable to paid-for parking
As noted above, the ParkingEye Vs Beavis case has meant that parking companies can charge amounts that do not represent loss, and instead are penalties. However, the Beavis case was based on the facts of that particular case – an overstay in a free car park.In the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty. In a POPLA appeal it would be worth using this to differentiate the case from Beavis.
Keeper is not a person
Most tickets are issued by post using a Notice to Keeper (NTK). The parking company writes to the keeper since they do not know the identity of the driver. They write to the keeper to:
- Hold the keeper liable under the provisions of the Protection of Freedoms Act 2012; -or-
- Hold the keeper liable on the basis that they were likely driving; -or-
- Name the driver;
The keeper can only be liable if the keeper liability requirements are met. Often they are not, or the parking company do not even intend to meet them (for example CP Plus do not use POFA). The Notice to Keeper should state if they are using POFA to achieve keeper liability (see here for more details on keeper liability).
If they are not using POFA, or have not achieved keeper liability, then they can only enforce against the driver on the assumption they are driving. This is a weak position for the parking company to take anyway since the car may have many drivers. However, if the keeper is not a person, they logically cannot have been the driver. In this case, the appeal may say the keeper cannot drive since they are not a person, and therefore they are not liable for any parking charge.
Using the Beavis case to your advantage
As we have stated above, the Beavis Vs ParkingEye case meant that certain strong appeal points can no longer be used. However, the Beavis case can also be used to your advantage.
The judges in the Beavis case upheld the decision for ParkingEye based on a certain set of circumstances. A good example is where the signs in the Beavis case clearly and boldly stated there would be a charge of £85 payable for breach. The judges used this in their logic to uphold the case for ParkingEye – i.e. the charge was highlighted and therefore the motorist should know the consequence for overstaying. So, if in your case the signage does not state the charge in large letters, then the same logic cannot apply.
Another aspect of the Beavis case that can be used is that the judges ruled the charges to be legitimate to control parking, when they would otherwise be penalties. As such, if in another case the parking operator does not have a legitimate interest in controlling parking, the charge would be an unenforcable penalty! The following are examples of charges that are arguably therefore penalties:
- Parking in a space you own but forgetting to display your permit
- Entering an incorrect VRN into a terminal
- Underpaying in a car park where by paying the vehicle is fully entitled to be there
- Parking outside a bay when no other cars are stopped from parking
We have a further article on fighting the Beavis arguments here.
As discussed above, these points have been shown in the past to be successful. However, it’s a constantly moving target, so you should do your own research before finalising your appeal. The parking forums are a great place to see what’s been successful and unsuccessful in the most recent cases – links can be found here. On the MoneySavingExpert parking forum there is a thread where POPLA appeal results are recorded – this is another useful source of appeal material.
PS. Before you make your submit your appeal, check your POPLA code using our free checker tool!