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PARKING EYE Appeal successfull due to Genuine Estimate Of Loss.
The Operator issued parking charge notice number *********** arising out of the presence at ******** , on **** ** 2013, 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.
******** 2 ** November 2013
Reasons for the Assessor’s Determination
At **,**, on ** ** 2013, a CCTV automatic number plate (ANPR) system recorded the Appellant’s vehicle entering the ******* car park.
The Operator’s case is that the Appellant breached the car parking conditions by remaining at the car park for longer than the stay authorised or without authorisation.
The Appellant made representations stating her case. The Appellant raised a number of points and one of the points was that the parking charge was punitive and it was an unreasonable charge. The Appellant further states that the Operator must show how the parking charge was calculated, whether as an actual or pre-estimated loss.
The appellant states that the costs cannot be operational or day to day running costs.
The signage produced states that a parking charge notice would be issued for a “failure to comply” with the car park terms and conditions. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The operator has submitted that its charges are in line with the BPA Code of Practice. The BPA code states that operators must justify in advance any parking charge over £100. However, it does not automatically follow that any charge which is £100 or under is, therefore, justified. Where the issue is raised by the appellant, it is for the operator to address it.
The operator has submitted that its charges have been held to be enforceable in previous cases. However, the operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre-estimate of the loss caused in every car park.
The Operator has produced a statement which it submits justifies the charge as a pre-estimate of loss and these include operational costs.
The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach on the day of the parking event. A substantial number of the costs listed by the operator appear to be general business costs, and not losses incurred, or losses that might reasonably be incurred, by the appellant’s breach. A genuine pre-estimate of loss should represent a loss and not a profit. It cannot include the operator’s business overheads.
The Operator has submitted that the parking charge is enforceable as there is a strong commercial justification for the charge. It would appear that the courts have accepted commercial justification for a parking charge where the operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach. The Operator cannot include sums that are really the general business costs of their car park services operation and state that it is commercially justifiable.
The onus is on the operator to prove its case on the balance of probabilities. In this case, the Operator has not provided sufficient evidence as to why this charge is a genuine pre-estimate of loss.
Accordingly, I allow the appeal.0 -
Yet another GPOL for PE, this time at North Tyneside General Hospital:-
http://forums.pepipoo.com/index.php?showtopic=85921&hl=What part of "A whop bop-a-lu a whop bam boo" don't you understand?0 -
Appeal against Parking Eye upheld - woohoo!!! Nice early Christmas present! I mostly lurked & read up on stuff here, but did post a couple of times and thanks to those who gave advice - as well as those who took the time to post information in other threads that was useful - if it's useful to anyone else - here's what I received today from POPLA:
Mrs xxxxxxxxxxxx (Appellant)
-v-
ParkingEye Ltd (Operator)
The Operator issued parking charge notice number xxxxxxx
arising out of the presence at xxxxxx, on 10 July 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 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 10:15 on the 10 July 2013, a vehicle with registration mark xxxxxx was recorded by Automatic Number Plate Recognition (ANPR) camera entering the car park at xxxxxxxxxxx. After 2 hours and 15 minutes, the same
vehicle was recorded by the ANPR camera exiting the car park.
It is the Operator’s case that the terms and conditions of parking state that this site is a 2 hour maximum free stay, customer only car park as clearly stated on the signage. As the Appellant stayed for longer than the maximum stay allowed, the Operator submits the parking charge was correctly issued.
The Appellant has in his appeal stated that he believes the parking charge of £100 is disproportionate to the length of stay and constitutes a penalty. The Appellant submits that he parked 15 minutes in excess of the 2 hour free parking, and that the charge of £100 for a 15 minute excess far exceeds the cost to the landowner. Clearly, it is the Appellant’s case that the parking charge is compensatory in nature. Therefore the amount sought should represent the losses incurred as a result of the breach.
The Operator submits that the charge is a genuine pre-estimate of loss, but that in any event the charge is commercially justified. The wording of the signage on site seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The Operator is required to show that the losses stated are directly related to the Appellant staying in the car park 15 minutes longer than the stay allowed. In this case, the Operator has stated that the charge is a genuine preestimate of the loss as they incur ‘significant costs in managing this car park to ensure that motorists comply with the stated terms and conditions.’ The Operator has stated that the costs include the erection and maintenance of site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office based administrative staff, membership fees, and general costs including stationary and postage. In this case, the justification appears to be on the basis of general operating costs rather than addressing the loss actually caused as a
result of staying in the car park for longer than the stay allowed.
Although the Operator has stated that the charge is commercially justified, the amount sought for the breach of the terms and conditions cannot be the
entire source of their income and must be loss based rather than based on profit in order to amount to a genuine pre-estimate of loss. I do not accept the Operator’s submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification.
Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.
Accordingly, I must allow the appeal.
Izla Rhawi
Assessor
November make £10/day challenge = £874.14/£300
December make £10/day challenge = £98.10/£1550 -
another SUCCESFUL APPEAL here against PE
http://forums.moneysavingexpert.com/showthread.php?t=4735276&page=2The Operator issued parking charge notice number 020938/694131 arising out of the presence at Holy Trinity Church in Newquay, on 26 July 2013, 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.
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
Reasons for the Assessor’s Determination
At 08:34 on the 26 July 2013, a vehicle with registration mark ******* was recorded by Automatic Number Plate Recognition (ANPR) camera entering the car park at Holy Trinity Church in Newquay. After 14 minutes, at 08:49, the same vehicle was recorded by the ANPR camera exiting the car park.
It is the Operator’s case that the site is a paid parking car park as clearly stated on the signage on site. As the Appellant had failed to purchase valid parking in line with the terms and conditions, a parking charge was correctly issued.
The Appellant has raised several issues in his appeal; however I will only deal with the point on which I am allowing this appeal. The Appellant has stated that there is no genuine pre-estimate of loss, i.e. that there could have been no loss to the landowner arising from the visit of less than 15 minutes.
The Operator submits that the charge is a genuine pre-estimate of loss, but that in any event the charge is commercially justified.
The wording of the signage on site seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The Operator is required to show that the losses stated are directly related to the Appellant’s failure to purchase valid parking. In this case, the Operator has stated that the charge is a genuine pre-estimate of loss as they incur ‘significant costs in managing this car park to ensure that motorists comply with the stated terms and conditions.’ The Operator has stated that the costs include the erection and maintenance of site signage, installation, monitoring
and maintenance of the Automatic Number Plate Recognition systems, employment of office based administrative staff, membership fees, and general costs including stationary and postage. In this case, the justification appears to be on the basis of general operating costs rather than addressing the loss actually caused as a result of not purchasing valid parking.
Although the Operator has stated that the charge is commercially justified, the amount sought for the breach of the terms and conditions cannot be the entire source of their income and must be loss based rather than based on profit in order to amount to a genuine pre-estimate of loss. I do not accept the Operator’s submission that the inclusion of costs which in reality amount to
the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of 6062333018 2 04 December 2013 an Operator in respect of a particular car park operation cannot of itself amount to commercial justification.
Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.
Accordingly, I must allow the appeal.0 -
My original post:
http://forums.moneysavingexpert.com/showthread.php?t=4694171&highlight=
POPLA decision now received:Reasons for the Assessor’s Determination
On ***** 2013, a parking charge notice was applied to a vehicle with registration mark ****** on the date of the parking event for walking off site whilst the vehicle remained parked on the premises.
The operators’s case is that the parking restrictions are clearly displayed on numerous signs situated throughout the site.Copies of the signage and PCN have been produced. The signage says: “Customer Parking Only Whilst on Premises, Maximum Stay 2 Hours.” The operator says that their patrol officer observed the appellant’s vehicle parked in an area restricted to customers of Wickes only while they are on the premises and the driver left the site. They say that their employee stated on the reverse of the parking charge notice: “The driver walked off site, 30 minutes given, all signs clear and visible” and he signed the parking charge notice as a true and accurate statement of fact.
The appellant’s case is that the amount of the parking charge notice is punitive, unfair, unreasonable and not a genuine pre-estimate of loss.
The operator rejected the appellant’s representations because they state that by leaving site whilst the vehicle remained parked, the appellant has breached the terms and conditions of the parking contract. They state that the amount of the parking charge is a reasonable claim for reasonable damages. They say that they have calculated the parking charge as a genuine pre- estimate of their losses as they incur significant costs in managing the car park. They state that some of these costs include but are not restricted to the following: employment of parking attendants to patrol the parking location, ad- hoc mobile patrols of the parking location, erection and maintenance of the site signage, parking payment and enforcement equipment to include the pay and display machines, membership and other fees including those paid to BPA,DVLA and ICO, general costs including stationery and postage, employment of office-based administrative staff and contribution to Head Office overheads. They claim that the charge amount and the calculations which have been made in setting it, has been approved and agreed by the landowner and/or agent of the site. They state that the sum is within the recommendations set out within Clause 19 of the BPA Code of Practice.
They say that they believe that their parking charges are fair and reasonable and are in line with the British Parking Association Guidelines and they have been tested in the Court of Appeal. They state that they do not issue or collect excess charges which are only relevant to on-street or civil enforcement area and such legislation are not enforceable on private land. The operator says that the charge of £75 was found to be reasonable in the case of Parking Eye v Somerfield.
The operator does respond to the appellant’s submission that the charge is not a genuine pre estimate of loss. However, their submissions do not sufficiently address such issue.
Having considered all the evidence before me, I must find that on this particular occasion, the operator has insufficiently dealt with the issue of genuine pre estimate of loss raised by the appellant. As the appellant raised this point, the burden of proof has shifted to the operator to prove that they do. On balance of probabilities, I find that the operator has not discharged the burden.
Accordingly, this appeal must be allowed.
Aurela Qerimi
Assessor
A result on all levels.
Can't believe PPC's still try to include running costs in their loss estimates!0 -
another successful one by xyzperson here http://forums.moneysavingexpert.com/showthread.php?t=4708959&page=2
VCS at JLAThis is to let you know that my appeal has been successful. So many thanks to everyone's comments - particularly the threads to other people's appeals. As you will have seen above I wrote a very long appeal letter to POPLA and made a subsequent detailed reply to the VCS reply to my appeal. POPLA had a short reply back. This is what I received:-
On 7 July 2013, the Operator observed the Appellant’s vehicle parked on the private land at the approach road to John Lennon Airport, via the mobile traffic enforcement camera. The Operator’s case is that the vehicle was stopped on a roadway where stopping is prohibited, in breach of the
displayed terms and conditions, and therefore, the parking charge notice
was correctly issued.
The Appellant disputes the issue of the parking charge for several reasons,
including one such reason that the amount of the parking charge notice is
not a genuine pre-estimate of the Operator’s loss. I will only address this
submission in order to justify why I have decided to allow the appeal.
The Operator has produced images of the signage on the land, and the
wording seems to indicate that the charge represents damages for a breach of the parking contract. Therefore, the onus is on the Operator to
demonstrate on the balance of probabilities, that the amount sought is a
genuine estimation of potential loss as a result of the Appellant’s alleged
parking breach.
The Operator has produced a statement and a list of costs in order to justify the charge. Such list includes but is not limited to: the employment of parking operatives, erection and maintenance of signage, the costs of
machinery, equipment, and postage; and also the cost of the mobile patrol
vehicles. However, all of these headings appear to be general operational
costs, and not losses consequential to the Appellant’s breach.
Consequently, I must find that the Operator has failed to produce sufficient
evidence to demonstrate that the parking charge is a genuine pre-estimate
of loss.
Accordingly, I allow the appeal.
I need not decide on any further issues.
WELL DONE0 -
You would think at one of the POPLA Roadshows or newletters for PPC's, they would tell them if your GPEOL includes running cost, then don't waste our or your time and just cancel the invoice.0
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and another success at PEEL CENTRE , stockport too (as always)
http://forums.moneysavingexpert.com/showthread.php?t=4774293Hi Guys,
thanks a lot for your help, especially Bondy, nice to know we are against Excel (even if you are on the Blue side) ha.
I redrafted this appeal taking out the signage and the additional £1.30 cost.
You'll be glad to know I got my appeal result today (4 weeks late) and the assessor accepted my appeal and i'm pleased to know Excel have to rip my ticket up. Feel like sending them a letter for harrassment lol. The assessor stated:
The operator does respond to the appellant’s submission that the charge is not a genuine pre estimate of loss. However, their submissions do not sufficiently address such issue.
Having considered all the evidence before me, I must find that on this particular occasion, the operator has insufficiently dealt with the issue of genuine pre estimate of loss raised by the appellant. As the appellant raised this point, the burden of proof has shifted to the operator to prove that they do. On balance of probabilities, I find that the operator has not discharged the burden.
Accordingly, this appeal must be allowed. Aurela Qerimi
Assessor0 -
Success here too! I am so grateful for everyone on this forum.
XXXXXXXX (Appellant)
-v-
ParkingEye Ltd (Operator)
The Operator issued parking charge notice number XXXXXXXX
arising out of the presence at The Range Dorchester, on July 13 2013, of
a vehicle with registration mark XXXXXXXX.
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 11:52, on July 13 2013, a CCTV automatic number plate recognition (ANPR) system recorded the Appellant’s vehicle entering The Range Dorchester car park.
The Operator’s case is that the Appellant breached the car parking conditions by remaining at the car park for longer than the stay authorised or without authorisation.
The Appellant made representations stating her case. She raised a number of points and one of them was that the Operator has not demonstrated a proprietary interest in the land and they have no legal possession which would give them any right to offer parking spaces and allege a contract. She further states that she believes there is no contract with the landowner/occupier that entitles the Operator to levy charge and issue parking charge notices. The Appellant also states that charges must be reasonable and a genuine pre-estimate of loss.
Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement.
This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.
The Operator has not produced any evidence to demonstrate that it is the land-owner; or, that it has the authority of the land-owner to issue parking charge notices at this site. Once the issue is raised by an Appellant, it is for the Operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.
The Operator has also submitted that according to the case of Fairlie v Fenton, the Operator has the right to enforce the contract in its own right. I must find that this does not address the Appellant’s submission that the Operator does not have the right to offer a contract at all.
Furthermore, The Appellant has submitted that the parking charge does not reflect the Operator’s loss, and so is not enforceable. The Operator has not addressed this submission.
It appears to be the Appellant’s case that the parking charge represents a sum for specified damages, in other words compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss caused by the alleged breach.
The Operator does not appear to dispute that the sum represents damages, and has not attempted to justify the charge as a genuine pre-estimate of loss.
Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.
Hence, taking into consideration all the facts before me, I have no option but to allow the appeal.
Sakib Chowdhury0 -
Nice decision , and one that questions their authority to issue these tickets. And their contract with the landowner. Makes a change from a genuine pee estimate of loss. Well done !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.
:beer: Anti Enforcement Hobbyist Member :beer:0
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