POPLA Decisions

RW123 · 5 September 2014 at 1:13PM

I have received notice today that I have won my POPLA appeal. YIPPEE!

Details of the decision as shown below:

The Operator issued a parking charge notice number xxxxx arising out of the presence at xxx hospital on 3 June 2014, of a vehicle with registration mark xxxxx.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

It is not in dispute that the appellant parked in a bay signed as for disabled badge holders only in xxxx Hospital car park on 3 June 2014. An employee of the operator observed the vehicle, concluded that it was not displaying a valid blue badge and issued a parking charge notice as a result.

The appellant made representations, stating that: the charge did not represent a genuine pre-estimate of loss, the requirement for a blue badge is discriminatory, the signage was not compliant with the appropriate guidelines, and the operator lacks sufficient rights in the land to issue and enforce parking charge notices.

The operator rejected the representations. In regard to the genuine pre-estimate of loss issue, the operator stated that the charge represented a genuine pre-estimate of loss, and provided a breakdown of figures.

Considering the evidence before me, I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, and initial loss must be shown in order to claim costs in respect of them. As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore the charge notice is invalid. Having found this, I am not required to consider any further issues raised by the appellant.

Accordingly, this appeal must be allowed.

Christopher Monk
Assessor.

Fatrich172 · 5 September 2014 at 1:25PM

Won my POPLA appeal today. thanks to everyone on here who helped!!

xxxx (Appellant)

-v-

Vehicle Control ServicesLimited (Operator)

The Operator issued parkingcharge notice number VCxxxxxx arising out of the presence at Doncaster/RobinHood Airport, on May xx 2014, of a vehicle with registration mark xxxxxxx.

The Appellant appealed againstliability for the parking charge.

The Assessor has considered theevidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are asset out.

The Operatorshould now cancel the parking charge notice forthwith.

xxxx 04 September 2014

Reasons for the Assessor’s Determination

At xxxx, on May xx 2014, the Appellant’s vehicle wasobserved at Doncaster/ Robin Hood Airport.

The Operator’s case is that the Appellant breached the carparking conditions by stopping on a roadway where stopping is prohibited.

The Appellant made representations stating his case. One ofthe points raised by him was that the charge is not a genuine pre-estimate ofloss.

Considering carefully all the evidence before me, theOperator has stated that the charge is a genuine pre estimate of the lossincurred and in the event that it is not a genuine pre estimate of loss, thecharge is commercially justified.

The Operator has provided evidence to show that they incurcosts of £166.01 but in order to meet with the requirements of the BritishParking Association, the maximum charge that can be imposed is £100. Althoughthe operator has stated the final charge, they have failed to indicate how thischarge was calculated. Although the Operator has explained costs that may beincurred, a number of the items referred to amount to general operating costsand would not appear to be substantially linked to the cost incurred as aresult of the breach. In the absence of an explanation as to how the amount ofthe charge was reached, I am not satisfied that the Operator has providedsufficient evidence to show that the charge represents a genuine pre estimateof the loss incurred.

If the charge is not found to amount to a genuine preestimate of loss, the Operator has stated that the charge is commerciallyjustified. The Operator has provided a number of cases in support of thissubmission. In cases I have seen from the higher courts and indeed the casessubmitted by the Operator, it is clear that the charge cannot be commerciallyjustified if the primary purpose of the charge is to deter a breach.

Where the charge represents damages, the amount of thecharge is required to be compensatory rather than punitive; with the goal ofplacing the parties in the position they would have been in, had the contractbeen performed. In this case, the primary purpose of the charge is to preventvehicles from parking without purchasing parking time. This is to deter abreach of the terms and conditions and I am consequently not satisfied that thecharge can be commercially justified. The Operator has not demonstrated thatthe charge is a genuine pre estimate of loss or commercially justified and I therefore have no evidence before me to refute the Appellant’s submission that the charge does not amount to a genuine pre estimate of loss.

I need not decide any other issues.

Accordingly, the appeal must be allowed.

Sakib Chowdhury

Assessor

robod · 5 September 2014 at 11:28PM

Hi there,

Another POPLA win based on GPEOL. Thanks to all the nice and helpful people on this forum .

Me (Appellant)
-v-
UK Parking Control Limited (Operator)

The Operator issued parking charge notice number xxx
arising out of the presence at Riverside Retail Park, Warrington, on
29/05/2014, of a vehicle with registration mark XXXXXXX.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination
At 14:46 on the 29th May 2014, a xxx with registration mark
XXXXXXX was recorded exiting the Riverside Retail Park, Warrington after a
stay of 3 hours and 35 minutes. The car park is a 3 hour maximum stay car
park and a parking charge notice was issued for parking in excess of the
maximum permitted stay.
The Operator’s case is that the terms and conditions applicable to the site
state that the maximum stay is 3 hours. There is signage placed throughout
the site which sets out the terms and conditions in place and as the motorist
was parked at the site in excess of 3 hours, he had failed to adhere to the
terms and conditions.

The Appellant’s case is that:
a) The charge is not a genuine pre estimate of loss.
b) The only sign displayed in the car park is obscured.
c) The signage does not warn about the use of ANPR cameras.
d) The charge amounts to an unlawful penalty charge.
e) A valid contract was not formed between the Operator and the driver.

Considering carefully all the evidence before me, the Operator does not
dispute that the amount represents liquidated damages and states that the
amount is a genuine pre estimate of loss and is a commercially justified
amount.
The Appellant has stated that the charge does not represent a genuine pre
estimate of loss and the onus is then on the Operator to show that the charge
is representative of the losses incurred by the breach. The Operator has failed
to provide a breakdown of the losses incurred and I am consequently not
satisfied that the Operator has shown that the charge is a genuine pre
estimate of loss.
The Operator has additionally stated that the charge is commercially justified.
The Operator has provided case law in support of this submission; however, in
cases I have seen from the higher courts, it is clear that the charge cannot be
commercially justified if the primary purpose of the charge is to deter a
breach.

Where the charge represents damages, the amount of the charge is required
to be compensatory rather than punitive; with the goal of placing the parties
in the position they would have been in, had the contract been performed. In
this case, the primary purpose of the charge is to prevent vehicles from
parking in excess of the maximum permitted stay imposed at the site. This is to
deter a breach of the terms and conditions and I am consequently not
satisfied that the charge can be commercially justified. The Operator has not
demonstrated that the charge is a genuine pre estimate of loss or
commercially justified and I therefore have no evidence before me to refute
the Appellant’s submission that the charge does not amount to a genuine pre
estimate of loss. As a result, I need not decide any other issues raised by the
Appellant.
Accordingly, this appeal must be allowed.
Shehla Xxxxxx
Assessor

Dunbarrover · 8 September 2014 at 6:09PM

Thanks to all who provide the templates and advice on this forum.

Successful Popla Appeal against VCS at Liverpool International Business Park. Was concerned when got back from holiday to find a 36 page evidence bundle from VCS! However, the Assessor took the usual GPEOL line and allowed the appeal.

Extract from decision:

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included “Central Payments Office (CPO) – Indirect Overheads”. I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am
not satisfied that the operator has discharged the burden.

Thanks again, keep up the good work.

w234 · 9 September 2014 at 12:19PM

Hi

Just got a reply from POPLA. Both appeals were approved and MET has to cancel the parking tickets!

It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Thank you all for your help again!!!

MagicA · 10 September 2014 at 5:57PM

Another success! Thank you for all your support, I will be recommending this to all!!

Here is the response:

"At ******* June 2014, a vehicle with registration mark ****** was
recorded by an ANPR system entering the car park at ***
The car was recorded leaving at 15:19, having exceeded the maximum free stay permitted. A parking charge notice was therefore issued.

The appellant made many representations; however, I shall only deal with the ground upon which the appeal is being allowed. Specifically, the appellant submitted that the charge did not represent a genuine pre-estimate of loss.
The implication of this submission is that the parking charge is in fact punitive.
The operator rejected the representations made by the appellant. With
regard to the issue of genuine pre-estimate of loss, the operator argued that the parking charge was liquidated damages. However, the operator stated that the onus was on the appellant to produce evidence as to why it did not reflect a genuine pre-estimate of loss. No break down of how they quantified the pre-estimate of loss was provided.
In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.
Contrary to the assertion of the operator, it is unnecessary for the appellant to explain why they believe the charge does not reflect a genuine pre-estimate of loss. All the appellant needs to do is raise the issue and it is then for the operator to prove that the charge reflects the loss. The operator must demonstrate this with reference to an itemised cost break down of the loss.
As stated, the onus is on the operator to provide a break down of the
genuine pre-estimate of loss. As they have failed to do so, on this occasion the appeal must be decided in favour of the appellant.
Accordingly, this appeal is allowed.

Nadesh Karunairetnam"

It took about a month to be heard, so just be patient!

Coupon-mad · 10 September 2014 at 6:09PM

The above was G24 who are hopeless, they haven't a clue what a GPEOL is!

Nadesh Karunairetnam

He's another new Assessor then, learning fast!

kop1te · 10 September 2014 at 7:12PM

The results of my appeal against Minster Baywatch:-

Reasons for the Assessor’s Determination
The appellant has at no point admitted being the driver, there is no evidence that he was, and he has not named the driver and provided a serviceable address. Therefore, the appellant’s only liability is as the keeper, which means that the requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. I find that the operator has failed show that they have produced a ‘notice to keeper’ which complies with the requirements of paragraph 8 of Schedule 4. The operator must produce evidence that such a notice has been produced regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. Specifically, the ‘notice to owner’ is not shown to comply with sub-paragraph 2(g) by informing the keeper of the arrangements for the resolution of disputes or complaints. This is because neither mention, as specified by sub-paragraph 8(b), any arrangements by which disputes or complaints may be referred by the keeper to independent adjudication or arbitration. Therefore, as no compliant notice to keeper has been shown to exist, and the appellant does not admit to being the driver, the charge notice has not been shown to be enforceable against the appellant.
Accordingly, the appeal must be allowed.
Christopher Monk
Assessor

Coupon-mad · 10 September 2014 at 7:31PM

kop1te wrote: »

The results of my appeal against Minster Baywatch:-

Reasons for the Assessor’s Determination
The appellant has at no point admitted being the driver, there is no evidence that he was, and he has not named the driver and provided a serviceable address. Therefore, the appellant’s only liability is as the keeper, which means that the requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. I find that the operator has failed show that they have produced a ‘notice to keeper’ which complies with the requirements of paragraph 8 of Schedule 4.

The operator must produce evidence that such a notice has been produced regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. Specifically, the ‘notice to owner’ is not shown to comply with sub-paragraph 2(g) by informing the keeper of the arrangements for the resolution of disputes or complaints. This is because neither mention, as specified by sub-paragraph 8(b), any arrangements by which disputes or complaints may be referred by the keeper to independent adjudication or arbitration. Therefore, as no compliant notice to keeper has been shown to exist, and the appellant does not admit to being the driver, the charge notice has not been shown to be enforceable against the appellant.
Accordingly, the appeal must be allowed.
Christopher Monk
Assessor

I like that Christopher Monk - even though Minster Baywatch won't!

It's the second time I have seen him say those words in bold. Here he said the same, and unlike you, the appellant had not even mentioned the NTK flaws:

http://forums.pepipoo.com/index.php?showtopic=91553

Here's your original thread, showing newbies that your appeal was thorough and did include criticism of the 'NTO':

http://forums.moneysavingexpert.com/showthread.php?t=4994809

Easy ones to win - PCS 'Notice to Owner' letters are pants.

ramanmittal · 10 September 2014 at 9:02PM

hi all
i have got the letter from popla today. they have cancelled the charge.
thanks for your help

POPLA Decisions

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