POPLA Decisions

Result of appeal using template from this site - thanks! The date of the appeal was stated as 28/7/14 and I received the decision via email on 11/8/14. The justification they (JAS Parking Solutions) gave for the £100 penalty was to cover the rent and to heat their offices!

Reasons for the Assessor’s Determination

At 15:15 on the 11th June 2014, the operative observed a black BMW with registration mark KMxx xxx parked at Staples, Milton Keynes. A parking charge notice was issued for leaving the site.
The Operator’s case is that the terms and conditions state that the car park is a customer only car park. There are a number of signs throughout the parking area which clearly set out the terms and conditions and as the motorist had left the site, he had failed to park in accordance with the terms and conditions.

The Appellant’s case is that:
a) The charge is not a genuine pre estimate of loss.
b) There is a lack of signage at the site.
c) The Operator has not shown that they have the authority to enforce restrictions at the site.
d) The terms relied upon by the Operator amount to unfair terms.
Considering carefully all the evidence before me, the Operator does not dispute that the charge represents liquidated damages, which is compensation agreed in advance. This means that the charge should represent the losses incurred as a result of a breach of the terms and conditions. The Appellant has stated that there was no loss incurred and the onus is then on the Operator to show that the charge is representative of the losses incurred as a result of a breach of the terms and conditions. In this case, the Operator has sought to justify the charge; however, a number of the items referred to by the Operator amount to general operating costs; such as rent, heating and stationary. On balance, I am not satisfied that the Operator has sufficiently shown that the items referred to are substantially linked to the loss incurred by the breach. As a result, I need not decide any other issues raised by the Appellant.
Accordingly, this appeal must be allowed.

Shehla Pirwany
Assessor

POPLA Appeal v's VCS (Liverpool John Lennon Airport) 8/8/14

Heard from my appeal today which was successful so posting, hope I've got the correct thread. It's as

1. The PPC/appeal used
2. And the POPLA reasons for appeal allowed (successful)

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1: PPC Appeal

RE: Verification code xxxxxx


As the registered keeper I wish my appeal to be considered on the following grounds.

1) Amount demanded is a penalty not a genuine pre estimate of loss
2) The alleged contravention did not take place
3) Not relevant Land under POFA 2012; no registered keeper liability
4) No landowner contract nor legal standing to form contracts or charge drivers
5) No Contract with driver
6) Misleading and unclear signage
7) Non-compliant ANPR 'hidden camera van' at this location which is not a car park

1) The amount demanded is a penalty and not a Genuine Pre-estimate of loss.

The first five minutes in the Liverpool John Lennon Airport pick up / drop off car park are free; the alleged contravention lasted seconds which is significantly less than five minutes and Vehicle Control Services Ltd (VCS) are demanding payment of £60 for what would have been free parking.

Therefore the parking charge does not represent a genuine pre-estimate of loss and is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping and is not a genuine pre-estimate of loss. As VCS are alleging a 'failure to comply' yet cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders this charge unenforceable. I would also like to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time.

POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

The BPA Code of Practice states:

“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable."

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss. As VCS are alleging a 'failure to comply' yet cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders this charge excessive and unenforceable.

2) The alleged contravention did not take place

The notice issued states ‘You are notified under Paragraph 9 (2) (b) of Schedule 4 Of the Protection of Freedoms Act (POFA) 2012 that the driver of the motor vehicle is required to pay this Parking Charge Notice in full.

The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

This paragraph in no way applies to the alleged contravention which is ‘Stopping on a roadway where stopping is prohibited’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

The photographs on the parking charge notice clearly show the car stopped on a road and not in a car park. There was no parking contravention at all. VCS are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

3) Not Relevant Land as defined under POFA 2012; no registered keeper liability.

The driver has not been identified, yet VCS are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as Liverpool Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport bylaws and so POFA 2012 does not apply. I put operator VCS to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. Please find attached the relevant by laws and proof from Liverpool city council that they were in force at the time of the alleged contravention.

4) No landowner contract nor legal standing to form contracts or charge drivers

As VCS are not the owners of this land and as such they cannot form a contract with the driver, I wish VCS to provide me with a full un-redacted copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives VCS the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, VCS have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

5) No contract with driver.

If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions (see 'misleading and unclear signage' below). A driver could not stop in order to read the signs as they enter the road as they by doing so they would block the junction. In any case, as VCS are only an agent working for the owner, mere signs do not help them to form a contract. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. In this instance, there was no contract formed whatsoever, no consideration was capable of being offered to the driver who saw no pertinent signs nor accepted these terms whilst driving.

6) Misleading and unclear signage.

Following receipt of the charge I personally visited the location and the signs do not comply with road traffic regulations or their permitted variations and as such are misleading. VCS’s signs are in the style of a commercial venture and similar to the myriad of commercial ventures along the airport approach. Because the signs are not in the style of a standard road sign there is nothing to draw a driver’s attention to them.

The alleged contravention is 'stopping on a clearway' which is a misleading term because of its similarity to the Highways Agency term 'urban clearway'. If VCS intend this apparently private road to treated by drivers as an urban clearway then the signs and terms used must be compliant with the TRSGD2002 or they will be misleading and confusing to drivers. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading. Any repeater signs in this area do not face the oncoming traffic and are sporadically placed if at all at this junction. So they are unable to be seen by a driver and certainly cannot be read without stopping, and therefore do not comply with the BPA code of practice. VCS are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's first Annual POPLA Report 2013:

''It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.''

If VCS intend this apparently private road to be treated by drivers as an urban clearway then the signs and terms used must be compliant with the Traffic Signs Regulations and General Directions (TSRGD) 2002 or they will be misleading and confusing to drivers. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading.

7) Non-compliant ANPR 'hidden camera van' system at this location which is not a car park

The BPA code of practice contains the following:

''21 Automatic number plate recognition (ANPR)

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.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, the secret camera van does not operate in a reasonable, consistent and transparent manner and I contend that VCS have failed to meet the requirements of all of the above points in the BPA Code of Practice. They will need to show evidence to the contrary on every point, and explain how this hidden camera van can be compliant when this is not a car park, it is a road, and there is no opportunity for drivers in moving traffic to be informed that this technology is in use and what VCS will use the data captured by ANPR cameras for.

VCS have breached the BPA Code of Practice as regards the use of a non-compliant ANPR system being merely a van fitted with a hidden camera, patrolling land which is not a 'car park' and neither 'managing, enforcing nor controlling parking'.



2: POPLA decision

The Operator issued parking charge notice number ###### arising out of the presence at John Lennon Airport, on ## April 2014, of a vehicle with registration mark ######
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
The Operator issued parking charge notice number ######### arising out of the presence at John Lennon Airport, on ## April 2014, of a vehicle with registration mark ####### for stopping on a roadway where stopping is prohibited.

It is the Operator’s case that the Appellant’s vehicle stopped on a roadway where stopping is prohibited and this was a breach of the terms and conditions of the site as set out on signage at the site.

The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.
As the Appellant has raised the issue of the charge not being a genuine pre- estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a list of heads that they have to pay for in relation to managing the site, however, they have not stated how much they have to pay for each head listed. This is a general list and does not address the loss that was caused by the Appellant’s breach of the terms and conditions of parking.

I have looked at all of the evidence and have decided to allow this appeal on the basis that the Operator has failed to prove that the parking charge amount is a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

My POPLA Appeal against a charge from Parking Eye was due on the 4th August and I got my reply today.(13th Aug).

Reading through the thread it seems increasingly the case that PE are not contesting the case. I had the same result as DIAMOND5 in an earlier thread.
Reasons for the Assessor’s Determination
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.
Accordingly I have no option but to allow the appeal.
Shehla Pirwany
Assessor

Many thanks for all the help and encouragement from the contributors to this fine forum. I will be making sure that my contacts are aware of the help available here. It's high time these cowboys are shown the exit door!

PCN issued for 4 minute overstay at Aldi Boscombe.

13 August 2014

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.
Accordingly I have no option but to allow the appeal.
Shehla Pirwany
Assessor

:beer: