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  • FIRST POST
    • Aaron Aadvark
    • By Aaron Aadvark 9th Mar 13, 5:49 PM
    • 231Posts
    • 409Thanks
    Aaron Aadvark
    POPLA Decisions
    • #1
    • 9th Mar 13, 5:49 PM
    POPLA Decisions 9th Mar 13 at 5:49 PM
    MSE Note:

    Hi! Please don't post any private details (yours or other peoples) on the forum for privacy reasons. Thanks!

    MSE Official Insert:

    Read our MoneySaving UK Travel & Transport guides to save more including Fight Private Parking Tickets and Parking Ticket Appeals.

    Back to Aaron Aadvark's original post....

    ----------------------------


    This thread is intended to be a compilation of all published POPLA decisions.

    Please add any decisions you are aware of.

    Please do not post requests for advice on this thread.

    Please start a new thread if you are looking advice.
    Last edited by MSE Andrea; 28-10-2016 at 9:29 AM.
Page 3
    • Stroma
    • By Stroma 13th May 13, 6:03 PM
    • 7,919 Posts
    • 8,408 Thanks
    Stroma

    The Appellant’s original representations states that he was bitten by a radioactive spider and has the superpower to cancel any parking charge notices issued to him.



    The Operator rejected the representations, as stated in the notice of rejection they sent, because they believe the timings stated on the parking charge notice are correct, and they were unable to accept the Appellant’s claim that he has superpowers.
    Originally posted by Parking-Prankster
    Lovely stuff
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    Anti Enforcement Hobbyist Member
    • Coupon-mad
    • By Coupon-mad 13th May 13, 11:16 PM
    • 48,865 Posts
    • 62,357 Thanks
    Coupon-mad
    Cheered me up no end!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Fergie76
    • By Fergie76 14th May 13, 7:32 PM
    • 2,175 Posts
    • 2,270 Thanks
    Fergie76
    Cheered me up no end!
    Originally posted by Coupon-mad
    Bet you needed it after last night...
    • VicksLester
    • By VicksLester 21st May 13, 10:32 AM
    • 37 Posts
    • 21 Thanks
    VicksLester
    Parking Control Management (UK) Ltd (Operator) The Operator issued parking charge notice number xxxxx arising out of the presence at xxxxxxxxxxxx on xxxxxxxxx, of a vehicle with registration mark xxxxxxx

    The Appellant appealed against liability for the parking charge.

    The Assessor considered the evidence of both parties and determined

    that the appeal be refused.

    The Assessor’s reasons are as set out.


    In order to avoid any further action by the operator, payment of the £100 parking charge should be made within 14 days.

    Details of how to pay will appear on previous correspondence from the operator.

    Reasons for the Assessor’s Determination

    On xxxxxxxxxxxx the Operator’s employee observed a xxxxxxxx with the vehicle registration mark xxxxxxxxx parked at Castle car park, Windsor. The employee issued a parking charge notice (‘PCN’). The time of issue on the PCN is 18:36.


    The Operator submits that the terms and conditions for parking advertised at the site included the condition that vehicles “clearly display a valid pay and display parking ticket”. A 5 minute overstay was permitted. Failure to obey may lead to the issuing of a PCN. The Operator’s employee observed that the vehicle was not displaying a valid pay and display ticket and issued a PCN for breach of the aforementioned condition. Specifically, the vehicle was displaying a pay and display ticket valid until 18:27. Including the 5 minute overstay, the vehicle was permitted to park until 18:32. The Operator submits that the vehicle was parked after 18:32. Its employee issued the PCN at 18:36, which was then fixed to the vehicle at 18:37. The Appellant was not present. The Operator’s evidence includes photographs taken by its employee of the Appellant’s vehicle.

    Photos of the dashboard show that a pay and display ticket was displayed. The expiry time can be seen to be “18:27”. The file provenance for the photo indicates that it was taken on the day in question at 18:37:52.

    The Appellant submits that she purchased and displayed a pay and display ticket valid for the period in which she parked. The Appellant submits that she returned to the car at 18:33.

    The Appellant submits that she sent the Operator a cheque for £10 “in respect of any expenses they may have incurred” which reflects the cost of “more than £1 per minute of any overstay.” She submits that any such overstay did not cause the Operator pecuniary loss.


    The Operator rejected those representations on the basis that a valid pay and display ticket was not displayed within the meaning of the terms and conditions.


    I have before me an email from the Appellant dated 19 February 2013. The Operator was not supplied with this submission. I have considered whether to adjourn making a decision in order to permit the Operator to view this evidence. However, the Appellant’s additional submission has made no difference to my decision. This is for 2 reasons:

    1. The Appellant submitted that she was unable to view the Operator’s photographs prior to her first appeal. The Appellant was given the Operator’s website details in order to view the contravention, including photos, on the reverse of the PCN fixed to her vehicle. She does not appear to have alerted the Operator to any problems with viewing evidence. Her initial appeal grounds do not appear to have turned upon photographic evidence. In any event, the Appellant has now seen the photos as part of the evidence disclosed in the appeal to POPLA and has now had an opportunity to make submissions on the basis of all the evidence.

    2. The Appellant submits that, according to her son’s clock, she returned to her vehicle 5 minutes late, i.e. at 18:32, not 18:33 as she previously submitted. This would be within the 5 minute overstay. She submits that this is when the PCN was issued, and that it was therefore issued improperly. She submits that the employee’s clock must therefore be inaccurate, i.e. 4 minutes fast, since the PCN is marked as having been issued at 18:36. However if the Operator’s clock was 4 minutes fast the photos of her parked vehicle, which were taken at 18:37 on a device using that clock, were taken at 18:33. 18:33 is 1 minute past the 5 minute overstay period. Accordingly, the Operator’s submission – that the Appellant overstayed – is unaffected.

    Taking into consideration all the evidence before me, I am satisfied that the Operator has proved this breach for 4 reasons:

    1. The Appellant does not dispute that it was an adequately advertised condition of parking at the site that staying in excess of the overstay was prohibited;


    2. The Appellant accepts that the pay and display ticket she displayed expired at 18:27
    The Operator submits that the Appellant’s vehicle was parked at 18:37.

    3. The Appellant submits that she returned to the vehicle at 18:33. In either case, the vehicle was still present past the expiry of the 5 overstay period;
    It is irrelevant that the Appellant believes the Operator did not incur a pecuniary loss. The parking charge forms part of a contract. When the Appellant parked at the site she agreed to pay the sum specified in the event that she breached the terms and conditions agreed to by parking there. The Appellant is therefore contractually bound to pay the sum specified.

    4. Taking these matters together the PCN was properly issued. The appeal is refused.

    I note that the Appellant sent a cheque for £10 to the Operator. The Appellant claims the Operator “rejected” this. According to the Operator’s submissions, it has not deducted £10 from the outstanding amount. The Operator should, if it has not already done so, destroy or return the aforementioned cheque. The Appellant is liable for the full amount of £100, payment of which should be made within 14 days.
    Matthew Shaw
    Assessor


    I fully acknowledge that this was a poor defence - I had not familiarised myself sufficiently with the advice given on this forum and also Pepipoo.
    I was arguing minor points that were correct and true.
    I have subsequently taken photos of all the signage in this car park and nowhere is a 5 minute grace period mentioned. Guess they make it up as they go along.


    • Coupon-mad
    • By Coupon-mad 21st May 13, 1:23 PM
    • 48,865 Posts
    • 62,357 Thanks
    Coupon-mad
    You do know this changes nothing and you do NOT have to pay when you lose at POPLA (even though the decision suggests you 'should')?

    The PPC can only go back to sending threatograms and if they actually tried a small claim you can get a robust defence this time from pepipoo (which isn't about what happened on the day).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Dave_TH
    • By Dave_TH 21st May 13, 10:09 PM
    • 175 Posts
    • 166 Thanks
    Dave_TH
    I would do as Coupon-mad suggests, I am familiar with the Pepipoo system and it does work, no PPC wants to go before a court once a great defense has been submitted.
    • VicksLester
    • By VicksLester 22nd May 13, 9:32 AM
    • 37 Posts
    • 21 Thanks
    VicksLester
    I don't intend to do anything. I've complained to POPLA about the inference that I should pay within 14 days and pointed out that their decision is not binding on the motorist but they seem to have ignored that by reiterating that I should pay. We'll wait and see!!
    • Aaron Aadvark
    • By Aaron Aadvark 29th May 13, 5:32 PM
    • 231 Posts
    • 409 Thanks
    Aaron Aadvark
    Decision: Allowed

    Assessor: Chris Adamson

    Date: May 2013

    Reported:
    http://forums.pepipoo.com/index.php?showtopic=79425&pid=825513&mode=threaded &start=#entry825513 post #2

    Successful Grounds:Genuine pre-estimate of loss.

    PPC MET Parking Services Ltd
    xxxx
    -v-
    MET Parking Services Ltd (Operator)
    The Operator issued parking charge notice number xxxx arising out of the presence at xxxx on xxxx February 2013, of a vehicle with registration mark xxxx.
    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 the operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘The vehicle did not clearly display a valid ticket/ voucher/ permit’. The operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking which state that,
    “Vehicles must display a valid Pay & Display ticket at all times or have paid for parking by using the pay by phone service”.
    The appellant does not dispute that the terms of parking were clearly displayed.
    It is the appellant’s case that:
    a) The appellant had paid for parking, albeit late, and so the operator has suffered no loss.

    b) According to Vehicle Control Services Limited v The Commissioners for Her Majesty’s Revenue and Customs [2012], the operator has no authority to issue parking charge notices in relation to the land in question.

    c) The parking charge is unenforceable as it is punitive and has no relation to any loss suffered.

    d) The operator’s signs at the location are not clear that the car park is subject to railway byelaws.

    The appellant has submitted that the parking charge does not reflect any loss suffered, and so is not enforceable. The appellant sent representations to the operator requesting that it justify the charge.
    The appellant has consistently maintained that he has paid the correct fee for parking other than in situations where the charge had changed to the off-peak rate by the time the appellant paid via the telephone service. In such situations, the appellant submits that he has offered to pay the difference to the operator. The appellant submits that the operator has not provided any justification for the parking charge in relation to any loss suffered.
    The operator submits that the charge sought represents liquidated damages for a breach of the terms of parking.
    Accordingly, the charge must be arrived at as a ‘genuine pre-estimate of loss’.
    The operator has submitted that: the charge is a genuine pre-estimate of loss; that it is within the BPA guidelines; and, that the sum is far less than the maximum penalty enforceable under the relevant railway byelaws.
    The operator is not seeking to enforce a penalty under the relevant railway byelaws; rather, it is seeking damages in accordance with a contract. Consequently, the level of any maximum penalty under byelaws is not relevant in this case. Equally, the lack of reference to any byelaws on the signage at the location is not relevant to my decision, as the operator is not seeking to rely on these byelaws.
    The onus is on the operator to prove its case on the balance of probabilities. Accordingly, once an appellant submits that the charge does not reflect the economic loss caused by the breach, it is not sufficient for the operator to simply state that the charge is, in fact, a pre-estimate of loss. The operator must provide some evidence or explanation to tip the balance in its favour. On this occasion, I must find that the operator has failed to produce any evidence or explanation to demonstrate that the charge sought does in fact represent a genuine pre-estimate of loss. That the charge is within the BPA guidelines does not, in itself, indicate that the charge is a genuine pre-estimate of loss, as any potential loss may vary according to the alleged breach, or the nature of the car park itself.
    I must find that the operator has failed to produce sufficient evidence to refute the appellant’s submission that the charge does not reflect the loss.
    Accordingly, I must allow the appeal.
    I need not decide any other issues, although it is noted that the operator appears to have demonstrated that it has authority from the landowner to issue parking charge notices at this location.
    It ought to be made clear that I have found that the operator has failed to demonstrate that the charge is a genuine pre-estimate of loss, not that the charge is not in fact a genuine pre-estimate of loss. Furthermore, it ought to be pointed out that, as a general rule, motorists ought to comply with any clearly displayed terms of parking, which at this car park include paying for parking before leaving the vehicle.

    Chris Adamson
    Assessor
    • Coupon-mad
    • By Coupon-mad 30th May 13, 10:05 PM
    • 48,865 Posts
    • 62,357 Thanks
    Coupon-mad
    Unfortunately a ridiculous POPLA loss reported by somesue on this thread:

    http://forums.moneysavingexpert.com/showthread.php?t=4626017

    Operator was PCM and the space was her OWN allocated space!!



    ''The Operator issued parking charge notice number xxxxxxxxxxx arising out of the presence at xxxxxxx, on xx January 2013, of a vehicle with registration mark xxxxxx .
    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 refused.
    The Assessor’s reasons are as set out.
    In order to avoid any further action by the operator, payment of the £100 parking charge should be made within 14 days.
    Details of how to pay will appear on previous correspondence from the operator.

    Reasons for the Assessor’s Determination
    On xx January 2013 the Operator’s employee observed a black Toyota with the vehicle registration mark xxxxxx parked at xxxxxxxxxx {and} the employee issued a parking charge notice (‘PCN’).
    The Operator submits that the terms and conditions for parking advertised at the site included the condition that a valid permit must be clearly displayed in the front windscreen at all times. The terms advised that failure to obey may lead to the issuing of a PCN. The Operator’s employee observed that the vehicle was not displaying a valid permit and issued a PCN for breach of the aforementioned condition. The Operator’s evidence includes photographs taken by its employee which show that no permit was displayed in the vehicle’s front windscreen or dashboard.
    The Appellant submits that the PCN was issued for being “parked without a permit”. The Appellant submits that, on the contrary, has proven that she has a valid permit. The Appellant further submits that she was parked in the allocated parking space and that none of the terms and conditions relied upon by the Operator were communicated to her when she purchased the vehicle.
    I note from the Appellant’s correspondence with the Operator that, in an email of 22 January 2013, she indicated that on the occasion in question her permit had “fallen off the windscreen down the side of the driver[’]s footwell.”
    The Operator rejected those representations on the basis that a permit was not displayed within the meaning of the terms and conditions. The Operator also submitted that owners of property at the site were made aware of the terms and conditions by way of a letter containing their parking permits.
    Taking into consideration all the evidence before me, I am satisfied that the Operator has proven this breach for 3 reasons:

    1. It is not disputed that no permit was displayed. The appeal turns upon a single issue: was it a condition of parking that a valid permit be displayed?

    2. The Operator submitted that it was a clearly advertised condition of parking that a valid permit be displayed in the front windscreen. This was also stipulated in the letter accompanying permits issued to residents like the Appellant. The Appellant does not dispute this. For a parking contract to be formed the terms and conditions must be adequately advertised and agreed. These terms are agreed to where, having had the opportunity to consider those conditions, a motorist parks. The motorist agrees to pay a parking charge in the event that those conditions are breached;

    3. On the evidence before me, the Appellant does not dispute that the aforementioned conditions were advertised where she parked. By parking, she greed to abide by the requirement to display a valid permit. On this occasion no permit was displayed and she is therefore liable for the parking charge.

    Taking these matters together the PCN was properly issued.
    The appeal is refused.''



    Sad one because that STUPID decision was of course based 'on the evidence before me' according to the adjudicator - and you just know that a robust appeal would have won. Just needed the right sort of appeal wording as ever!! These cases turn on the evidence the motorist gives and I see no evidence raised at all about the lack of legal status of PCM to form contracts here; the lack of compliant contract with the landowner; the rights/easements lawfully granted to residents to park there (which override any contractual allegation formed by a sign); the signage being pants as PCM's signs are; breaches of POFA; breaches of the BPA Code of Practice...etc...etc.
    Last edited by Coupon-mad; 30-05-2013 at 10:15 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • trisontana
    • By trisontana 7th Jun 13, 5:28 PM
    • 8,921 Posts
    • 13,625 Thanks
    trisontana
    Xxxxxxx Xxxxxxxx (Appellant)
    -v-
    ParkingEye Ltd (Operator)
    The Operator issued parking charge notice number 000765/XXXXXXX arising out of the presence at Victoria Retail Park, on 18 December 2012, of a vehicle with registration mark FY0X XXX.
    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.
    60605xxxxx 2 07 June 2013
    Reasons for the Assessor’s Determination
    On 24 December 2012, the Operator issued a parking charge notice because on 18 December 2012 the vehicle with registration mark FYXX XXX was recorded via automatic number plate recognition as having stayed in the Victoria Retail Park Car Park for 1 hours 40 minutes, which was longer than the maximum stay of 1 hour 30 minutes.
    The Operator’s case is that the terms and conditions are displayed at the entrance and throughout the site and state that there is a 1 hour 30 minute maximum stay. Copies of the conditions have been produced. They also state that a failure to comply with the conditions means that a parking charge notice will be issued. The Appellant does not dispute this.
    The Appellant made various representations, stating that under Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC) the Upper Tribunal (Tax and Chancery Chamber) the Operator has no authority to issue parking charge notices, and should produce a copy of the contract between themselves and the landowner to show if they do have authority. In addition the Appellant submits that the parking charge amounts to a penalty and does not reflect the loss caused.
    The Operator rejected the representations. It is noted that the Operator fails to address the Appellant’s submissions or provide any reasons for rejection. The Operator submits that they have written authority from the landowner to issue parking charge notices at the site.
    The case of VCS v HMRC concerned Value Added Tax but, In Paragraph 46 of the Decision, it states:
    VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action.
    6060xxxxxxx 3 07 June 2013
    This case has now been considered by the Court of Appeal ([2013] EWCA Civ 186) where, in allowing the appeal of VCS, the Court held:
    In the present case the contract between VCS and the landowner gives VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, I do not consider that it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge I see no impediment to regarding that as damages for trespass.
    The material events occurred before the coming into force of Section 54 of the Protection of Freedoms Act 2012. However, it is clear that, subject to the terms of the contract between them and the landowner, an operator may issue a parking charge notice to a vehicle for a breach of conditions of parking.
    Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner (if the Operator is not the landowner) to manage and enforce parking. This is set out in the British Parking Association Code of Practice. Therefore the Operator is likely to have authority to issue parking charge notices. However, as with any issue, if the point is specially raised by an appellant, then the operator should address it by producing such evidence as they believe refutes a submission that they have no authority. A copy of the written authority the Operator submits they have from the landowner has not been produced.
    Therefore, having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that they have authority from the landowner to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifts to the Operator to prove otherwise. The Operator has not discharged this burden.
    Accordingly, this appeal must be allowed.
    Shona Watson
    Assessor


    So yet again PE are unwilling or unable to produce that mythical contract.

    As somebody has pointed out on PPP, this retail park has only 90 minutes parking, with all these stores in residence:-

    Argos
    B&Q
    Boots
    Carpet Right
    Halfords
    McDonalds
    Next
    Pets at Home
    Tesco Home Plus.

    Just crazy!
    What part of "A whop bop-a-lu a whop bam boo" don't you understand?
    • nigelbb
    • By nigelbb 7th Jun 13, 6:11 PM
    • 1,924 Posts
    • 2,678 Thanks
    nigelbb
    As I also pointed out on PePiPoo the Victoria Retail Park is actually owned by the Crown Estate so PE would have had to form a contract with Her Majesty.
    • Dave_TH
    • By Dave_TH 7th Jun 13, 8:30 PM
    • 175 Posts
    • 166 Thanks
    Dave_TH
    well chalk one more up for the forum Not providing proof from the landowner they can impose charges

    I defended this for my wife, the information is there so use it!!

    Scheduled to be heard on the 17th April, letter sent to me on the 7th June

    The old contract rule, they know they dont have it but keep trying..

    0845 207 7700
    enquiries@popla.org.uk
    www.popla.org.uk
    Parking on Private Land Appeals is administered by the Transport and Environment Committee of London Councils
    Calls to Parking on Private Land Appeals may be recorded
    7 June 2013
    Reference: 6060xxxxxx
    always quote in any communication with POPLA
    xxxxxx xxxxxx (Appellant)
    -v-
    ParkingEye Ltd (Operator)
    The Operator issued parking charge notice number 000765/xxxxxx arising out of the presence at Victoria Retail Park, on XX December 2012, of a vehicle with registration mark FYXX XXX
    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.
    6060xxxxxx 2 07 June 2013
    Reasons for the Assessor’s Determination
    On 24 December 2012, the Operator issued a parking charge notice because on 18 December 2012 the vehicle with registration mark FYXX XXX was recorded via automatic number plate recognition as having stayed in the Victoria Retail Park Car Park for 1 hours 40 minutes, which was longer than the maximum stay of 1 hour 30 minutes.
    The Operator’s case is that the terms and conditions are displayed at the entrance and throughout the site and state that there is a 1 hour 30 minute maximum stay. Copies of the conditions have been produced. They also state that a failure to comply with the conditions means that a parking charge notice will be issued. The Appellant does not dispute this.
    The Appellant made various representations, stating that under Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC) the Upper Tribunal (Tax and Chancery Chamber) the Operator has no authority to issue parking charge notices, and should produce a copy of the contract between themselves and the landowner to show if they do have authority. In addition the Appellant submits that the parking charge amounts to a penalty and does not reflect the loss caused.
    The Operator rejected the representations. It is noted that the Operator fails to address the Appellant’s submissions or provide any reasons for rejection. The Operator submits that they have written authority from the landowner to issue parking charge notices at the site.
    The case of VCS v HMRC concerned Value Added Tax but, In Paragraph 46 of the Decision, it states:
    VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action.
    6060513014 3 07 June 2013
    This case has now been considered by the Court of Appeal ([2013] EWCA Civ 186) where, in allowing the appeal of VCS, the Court held:
    In the present case the contract between VCS and the landowner gives VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, I do not consider that it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge I see no impediment to regarding that as damages for trespass.
    The material events occurred before the coming into force of Section 54 of the Protection of Freedoms Act 2012. However, it is clear that, subject to the terms of the contract between them and the landowner, an operator may issue a parking charge notice to a vehicle for a breach of conditions of parking.
    Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner (if the Operator is not the landowner) to manage and enforce parking. This is set out in the British Parking Association Code of Practice. Therefore the Operator is likely to have authority to issue parking charge notices. However, as with any issue, if the point is specially raised by an appellant, then the operator should address it by producing such evidence as they believe refutes a submission that they have no authority. A copy of the written authority the Operator submits they have from the landowner has not been produced.
    Therefore, having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that they have authority from the landowner to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifts to the Operator to prove otherwise. The Operator has not discharged this burden.
    Accordingly, this appeal must be allowed.
    Shona Watson
    Assessor
    Last edited by Dave_TH; 09-06-2013 at 3:32 PM.
  • frank potter
    Another POPLA appeal defeat for Town and City Parking Ltd.

    A family member was the driver of the vehicle concerned.

    After a long wait the appeal was allowed (appeal due to be heard on 15th April 2013 but actually took place 5th June 2013). Details here:

    Xxxx xxxxxxxx (Appellant)
    -v-
    Town & City Parking Ltd (Operator)

    The Operator issued parking charge notice number TExxxxxxxx arising out of the presence at Asda Store Harrogate, on 15 February 2013, of a vehicle with registration mark xxxx xxx.

    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 xx.xx on 15 February 2013, the Operator issued a parking charge notice in relation to the vehicle with registration mark xxxx xxx for being “out of time”. An electronic copy of the parking charge notice has been produced.

    The Operator’s case is that the terms and conditions for parking are clearly displayed at the site and state that valid tickets must be clearly displayed. Copies of the conditions have been produced. They also state that a failure to comply with the restrictions mean that a parking charge notice will be issued.

    The Appellant made various representations, stating that in the case of Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC) the Upper Tribunal (Tax and Chancery Chamber) held that the Operator needs rights of occupation or possession in order to have authority to issue parking charge notices. The Appellant submits that the Operator does not have this authority. The Appellant also submits that the Operator has not complied with the requirements of Schedule 4 of the Protection of Freedoms Act 2012.

    The Operator rejected the representations, because they have been appointed by their client to manage the car park. The Operator has not produced any evidence to show that they have written authority from the landowner to issue parking charge notices at the site.

    The case of VCS v HMRC concerned Value Added Tax but, In Paragraph 46 of the Decision, it states:

    VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action.


    This case has now been considered by the Court of Appeal ([2013] EWCA Civ 186) where, in allowing the appeal of VCS, the Court held:

    In the present case the contract between VCS and the landowner gives VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, I do not consider that it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge I see no impediment to regarding that as damages for trespass.

    The material events occurred before the coming into force of Section 54 of the Protection of Freedoms Act 2012. However, it is clear that, subject to the terms of the contract between them and the landowner, an operator may issue a parking charge notice to a vehicle for a breach of conditions of parking.

    Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner (if the Operator is not the landowner) to manage and enforce parking. This is set out in the British Parking Association Code of Practice. Therefore the Operator is likely to have authority to issue parking charge notices. However, as with any issue, if the point is specially raised by an appellant, then the operator should address it by producing such evidence as they believe refutes a submission that they have no authority. The Operator has not produced any evidence of their appointment by the client. Nor has the Operator indicated that their client is even the landowner.

    Therefore, having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that they have authority from the landowner to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifts to the Operator to prove that they do. The Operator has not discharged this burden.
    Accordingly, this appeal must be allowed.

    Shona Watson
    Assessor
    Last edited by frank potter; 08-06-2013 at 3:32 PM.
    • Stroma
    • By Stroma 9th Jun 13, 8:47 AM
    • 7,919 Posts
    • 8,408 Thanks
    Stroma
    From Pepipoo -

    PCM

    Appeal : rejected

    Reasons for the Assessor’s Determination

    At XX:XX on XX December 2012, the Operator issued a parking charge notice because the vehicle with registration mark XXXX XXX was parked in a disabled bay but the Operator’s employee could not see a valid disabled badge on display. The employee then took a number of photographs of the vehicle, one of which shows the parking charge notice on the windscreen.

    The Operator’s case is that the terms and conditions for parking are clearly displayed throughout the site and state that motorists parking in disabled bays must clearly display a disabled badge. Copies of the conditions have been produced. They also state that a failure to comply with the restrictions mean that a parking charge notice will be issued. The Appellant does not dispute this.

    The Appellant made representations, enclosing a photograph of the disabled badge and stating that it had fallen onto the driver’s seat but was still clearly visible.

    The Operator rejected the representations, as set out in the copy of the notice of rejection they sent, because the vehicle was parked in a disabled bay without displaying a valid disabled badge. The Operator submits that the photographs taken by the employee show that the disabled badge was not visible in the dashboard or windscreen of the vehicle.

    I must find as a fact that, on this particular occasion, the term display means that all details proving the validity of the disabled badge must be clearly visible from the outside of the vehicle, and that the badge should usually displayed on the dashboard or windscreen. I must find as a fact that, on this particular occasion, a valid disabled badge was not displayed. This was a breach of the terms and conditions.

    It is noted that the Appellant did have a valid disabled badge, however it is the motorist’s responsibility to check on leaving the vehicle that all the terms and conditions have been complied with. On this occasion the disabled badge was not visible from the outside of the vehicle.

    Accordingly, this appeal must be refused.

    Shona Watson
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    Anti Enforcement Hobbyist Member
    • Stroma
    • By Stroma 9th Jun 13, 8:49 AM
    • 7,919 Posts
    • 8,408 Thanks
    Stroma
    Very poor appeal indeed
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    Anti Enforcement Hobbyist Member
    • nigelbb
    • By nigelbb 9th Jun 13, 11:06 AM
    • 1,924 Posts
    • 2,678 Thanks
    nigelbb
    Very poor appeal indeed
    Originally posted by Stroma
    I don't agree. I think that this is one of the more perverse POPLA decisions. The motorist stated that the badge was on display on the driver's seat & no evidence is produced to show that it wasn't but Shona decides that's not good enough & that it must be displayed on the dashboard or windscreen. Would it still not count if it was on the parcel shelf or in a side window? We know that these parking operatives like to take lots of photos of the car interior but they didn't produce one showing that the driver's seat was empty.
    • Stroma
    • By Stroma 9th Jun 13, 11:25 AM
    • 7,919 Posts
    • 8,408 Thanks
    Stroma
    It is a poor appeal as its only on the one point, obviously popla never will allow on that one point as can be seen above.
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    Anti Enforcement Hobbyist Member
    • Coupon-mad
    • By Coupon-mad 12th Jun 13, 12:18 AM
    • 48,865 Posts
    • 62,357 Thanks
    Coupon-mad
    A ridiculous decision in a resident's own space in a gated car park. His 'offence' was to be using a courtesy car with no permit...in his space!

    http://forums.pepipoo.com/index.php?showtopic=77591&st=20


    ''{Operator is - Total Security Partners Limited}

    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 refused.

    In order to avoid any further action by the operator, payment of the £100 parking charge should be made within 14 days.

    Reasons for the Assessor’s Determination
    It is the Operator’s case that a parking charge notice was correctly issued,
    giving the reason as: ‘Not displaying a valid permit’. The Operator submits
    that a parking charge is now due in accordance with the clearly displayed
    terms of parking.
    The Appellant does not dispute that no permit was displayed in his vehicle at
    the time of issue of the parking charge notice.
    It is the Appellant’s case that he was driving a courtesy car, as his own vehicle
    was in the garage for repairs. The Appellant submits that he was unaware
    that parking restrictions were in force.
    The Operator is seeking to rely on an agreement between itself and the
    Appellant that the Appellant would display a valid permit, or face liability for
    a parking charge. For such a term to be included in the agreement, it must
    be ‘incorporated’ into the agreement. The only relevant method of
    incorporation, in this case, is by notice. This means that the Appellant must
    have been made aware of the term, before the agreement was made, in
    order for it to be deemed part of the agreement. The Appellant will be
    deemed to have been made aware of the term if the Operator had taken
    reasonable steps to bring the term to the Appellant’s attention. The usual
    method by which an Operator takes ‘reasonable steps’ is by displaying clear
    signs around the site advertising the terms of parking.
    Once an Appellant submits that he or she was unaware of any parking
    restrictions, the onus is then on the Operator to demonstrate that it took
    reasonable steps to bring the terms of parking to the attention of the
    Appellant by demonstrating that the signs at the time and location in
    question were sufficiently clear.
    The Operator has produced a photograph of the Appellant’s vehicle which
    shows that he was parked directly next to a sign displaying the terms of
    parking. These terms of parking were clear that a permit must be displayed at
    all times, or a parking charge notice would be issued.
    The Operator does not dispute that the Appellant possesses a valid permit;
    however, the terms of parking are clear that a permit must be displayed
    when parking at this site.
    3960703009 3 07 June 2013
    Although I find no evidence of dishonesty, I am not able to take into account mitigating circumstances. That an Appellant feels he or she had good reason for failing to comply with the terms of parking is not a reason for which I can allow an appeal. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking.
    I find that, by failing to display a valid permit, the Appellant became liable for a parking charge notice, in accordance with the terms of parking displayed. ''


    Not sure yet which adjudicator put their name to that 'decision'; I would be ashamed if it were me and knowing this is a resident with an allocated space (rights & easements would apply you'd think). And no, the OP did NOT take advice on the POPLA appeal which seems to have been rushed off with just mitigating circs about the courtesy car and forgetting to transfer the permit (= hopeless).
    Last edited by Coupon-mad; 12-06-2013 at 12:21 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Umkomaas
    • By Umkomaas 12th Jun 13, 8:12 AM
    • 14,008 Posts
    • 21,996 Thanks
    Umkomaas
    POPLA Adjudicator:

    Although I find no evidence of dishonesty, I am not able to take into account mitigating circumstances
    POPLA Annual Report:

    In a, so far small, number of cases, Assessors have referred the matter back to the operator for their reconsideration of mitigating circumstances.
    Mixed messages?
    • Parking-Prankster
    • By Parking-Prankster 12th Jun 13, 5:41 PM
    • 310 Posts
    • 1,162 Thanks
    Parking-Prankster
    Highview Parking send in map of wrong car park
    Appeal date: 3/4/2013
    Adjudication date: 8/5/2013
    Actual adjudication date: 12/6/2013

    (POPLA currently running 35 days late for appeal submitted in April)

    Reasons for the Assessor’s Determination


    On 8 March 2013, the Operator issued a parking charge notice because on 24 February 2013 the vehicle with registration mark xxx xxx was recorded via automatic number plate recognition as having stayed in the overflow car park for 4 hours 49 minutes, which was longer than the maximum stay of 4 hours.

    The Operator’s case is that the terms and conditions are displayed at the site. Copies of the conditions have been produced and state that there is a 4 hour maximum stay. They also state that a failure to comply with the conditions means that a parking charge notice will be issued.

    The Appellant made various representations, stating that he does not believe he has entered into a contract with the Operator, whether actual or implied, written or verbally, or by notice in the form of signs. The Appellant submits that the map produced by the Operator doe [sic] not include a key or labels. The Appellant produced a map of the site with the overflow car park marked on, and submits that there were no signs in this area of the site.

    The Operator rejected the representations, as stated in the notice of rejection they sent, because the Appellant did not provide any valid reasons to cancel the parking charge notice. The Operator produced images that appear to show the vehicle entering the site at 15.50 on 24 February 2013 and exiting at 20.39 the same day. The Operator produced photographs of some of the signs in the area, which state that the maximum stay is 4 hours. A map of the site has also been enclosed. However there is no key, although it appears that the green circles indicate trees and the orange circles indicate the location of signs. It is unclear where the overflow car park is from this map, however in the area marked at the overflow car park by the Appellant there does not appear to be any signs. There is also an area marked "parking spaces", however there is no indication that any signs are displayed in this area either.


    Having carefully considered the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that the terms and conditions were clearly displayed throughout the site and in the overflow car park. As the Appellant submits that there was no contract between the parties, the burden of proof shifts to the Operator to prove otherwise. The Operator has not discharged this burden.



    Accordingly, this appeal must be allowed.


    Shona Watson


    Assessor
    Last edited by Parking-Prankster; 12-06-2013 at 5:48 PM.
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