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POPLA- Result now in
BASFORDLAD
Posts: 2,418 Forumite
Hi everyone
Please see below the result from POPLA. Refused as was predicted, ive sent peter haswell a message saying see you in court and have the tea ready
PARKING ON PRIVATE LAND APPEALS
PO Box 70748 London EC1P 1SN
0845 207 7700
enquiries@popla.org.uk
https://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
21 December 2012
Reference: 8763052662
always quote in any communication with POPLA
BASFORDLAD (Appellant)
-v-
UKCPS Ltd (Operator)
The Operator issued parking charge notice number 845662 arising out of the presence at Alma Leisure Park on 26 October 2012, of a vehicle with registration mark WV10 SYF.
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.
8763052662 2 21 December 2012
Reasons for the Assessor’s Determination
At 12.07 on 26 October 2012, the Operator issued a parking charge notice because the vehicle with registration mark WV10 SYF 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. The Appellant does not appear to dispute this.
The Operator's case is that the terms and conditions for parking are displayed on the site, and state that vehicles displaying a valid disabled badge may park in a disabled bay. Copies of the conditions have been produced. They also state that a failure to comply with the restrictions mean that the car park user agrees to a parking charge notice being issued. Photographs have also been enclosed showing that the terms and conditions are visible in various areas of the car park. These are dated 26 November 2012, a month after the parking charge notice was issued, however the Appellant does not appear to dispute that there were signs on 26 October 2012 or that he did not know the requirement to show a disabled badge when parking in a disabled bay.
The Operator submits that the Appellant parked in a disabled bay without displaying a valid disabled badge. In the case summary the Operator refers to the copy of the parking charge notice, however it was not submitted with their evidence. Nevertheless, it does appear to be agreed (or at least not disputed) that the parking charge notice was issued to the vehicle in the car park of the Alma Leisure Park in Chesterfield.
The Appellant made representations but does not offer any submissions on the facts of the appeal, and neither party has enclosed the representations sent to the Operator.
The Operator states that photographs taken by the employee show that a disabled badge was not visible. This is accepted, as it appears that the vehicle is clearly parked in a disabled bay without a disabled badge on display.
Although the Appellant does not make any factual submissions whatsoever, he does make various legal submissions. One such submission is that the parking charge is not a genuine pre-estimate of loss, and that the Operator has not actually suffered any loss on this occasion. The Operator's response to this was that there was enclosed a costs sheet to show the calculation of the genuine pre-estimate of loss, however there was none attached to their submission. For the reasons set out below this is not relevant.
8763052662 3 21 December 2012
A further point made by the Appellant in relation to whether the parking charge is a genuine pre-estimate of loss is that the charge is actually a penalty. The Operator submits that, a penalty has been defined in the courts as a sum that is in excess of the damage caused by non-performance of an obligation under the terms of a contract.
The Operator submits that in any case, the charge is not a genuine preestimate of loss because it is an invoice that the Appellant agreed to pay, for the use of a disabled space in which the vehicle was parked without a disabled badge.
Another statement by the Appellant is that if the parking charge amounts to a genuine pre-estimate of loss, the amount of the loss should not change from £60 for the first 14 days and rise to £100 thereafter. The Operator responded that the genuine pre-estimate of loss is £100, however that there is a discount if the charge is paid within the first 14 days.
In addition, the Appellant states that if the parking charge is a genuine preestimate of loss, the amount should vary for different breaches of the terms and conditions, for example parking over a white line or overstaying. The Operator does not respond to this point.
The legal submissions of the Appellant set out above are not accepted. The Appellant parked the vehicle in the car park, thereby agreeing to the contractual terms and conditions displayed on the signs. These included the condition that vehicles may only park in a disabled bay if a valid disabled badge was displayed.
Another term of the contract was that if the vehicle was parked without complying with the conditions of the contract, the motorist agreed to pay a parking charge of £100 (or £60 if paid within 14 days). The submissions I believe the Operator is trying to make is not that the Appellant has breached the contract giving rise to damages, as the Appellant appears to believe, but that the Operator is seeking to enforce the contract. This is because the Operator is seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle at Alma Leisure Park. The contract cannot now in effect be renegotiated.
The parking charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach and would need the Operator to prove that the parking charge was a genuine pre-estimate of loss.
8763052662 4 21 December 2012
The Appellant mentions the equitable principle that "one must come to equity with clean hands", and that the Operator is acting dishonestly as they cannot legally recover the parking charge so therefore does not have "clean hands". However the law of equity is not relevant to the appeal and therefore this has been disregarded.
Finally, the Appellant quotes Vehicle Control Services (VCS) v HMRC [2012] UKUT 129 (TCC), stating that Operators cannot create contracts with motorists if they do not own or have any proprietary interest in the land. The Operator submits that the authority produced shows that the occupier of the car park has given them the power to manage the car park. In addition, the Operator submits that the signs stating that motorists who park are entering into a contract with the Operator show that a valid contract was created between the Operator and the Appellant. I am inclined to disagree, and instead following the reasoning applied in VCS v HMRC, that the Operator cannot offer the right to park as it has already been offered by the occupier, in this case as use of the car park is free. However the Operator acts as an agent for the occupier of the land, and a valid contract was created although it is between the Appellant and the occupier. Therefore in attempting to recover the parking charge in this case, the Operator is acting on behalf of the occupier as permitted by the authority, and does not need to show a proprietary interest.
The Appellant further submits that under the Unfair Terms in Consumer Contracts Regulations 1999, parking charges are unfair terms as the contracts are not individually negotiated and causes significant imbalance in the relations of the parties, to the motorist’s detriment. However as the terms and conditions of the contract are clearly displayed and the Appellant is therefore deemed to have been aware of the terms, if the Appellant did not agree he would have had the option to park elsewhere. Therefore the Unfair Terms in Consumer Contracts Regulations 1999 are not relevant on this occasion.
The Appellant not having disputed or referred to the facts in any way, I must find as a fact that, at the material time, a valid disabled badge was required to be displayed on the vehicle but was not visible. This was a breach of the terms and conditions of parking.
Accordingly, on this particular occasion, the appeal must be refused.
Shona Watson
Assessor
Please see below the result from POPLA. Refused as was predicted, ive sent peter haswell a message saying see you in court and have the tea ready
PARKING ON PRIVATE LAND APPEALS
PO Box 70748 London EC1P 1SN
0845 207 7700
enquiries@popla.org.uk
https://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
21 December 2012
Reference: 8763052662
always quote in any communication with POPLA
BASFORDLAD (Appellant)
-v-
UKCPS Ltd (Operator)
The Operator issued parking charge notice number 845662 arising out of the presence at Alma Leisure Park on 26 October 2012, of a vehicle with registration mark WV10 SYF.
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.
8763052662 2 21 December 2012
Reasons for the Assessor’s Determination
At 12.07 on 26 October 2012, the Operator issued a parking charge notice because the vehicle with registration mark WV10 SYF 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. The Appellant does not appear to dispute this.
The Operator's case is that the terms and conditions for parking are displayed on the site, and state that vehicles displaying a valid disabled badge may park in a disabled bay. Copies of the conditions have been produced. They also state that a failure to comply with the restrictions mean that the car park user agrees to a parking charge notice being issued. Photographs have also been enclosed showing that the terms and conditions are visible in various areas of the car park. These are dated 26 November 2012, a month after the parking charge notice was issued, however the Appellant does not appear to dispute that there were signs on 26 October 2012 or that he did not know the requirement to show a disabled badge when parking in a disabled bay.
The Operator submits that the Appellant parked in a disabled bay without displaying a valid disabled badge. In the case summary the Operator refers to the copy of the parking charge notice, however it was not submitted with their evidence. Nevertheless, it does appear to be agreed (or at least not disputed) that the parking charge notice was issued to the vehicle in the car park of the Alma Leisure Park in Chesterfield.
The Appellant made representations but does not offer any submissions on the facts of the appeal, and neither party has enclosed the representations sent to the Operator.
The Operator states that photographs taken by the employee show that a disabled badge was not visible. This is accepted, as it appears that the vehicle is clearly parked in a disabled bay without a disabled badge on display.
Although the Appellant does not make any factual submissions whatsoever, he does make various legal submissions. One such submission is that the parking charge is not a genuine pre-estimate of loss, and that the Operator has not actually suffered any loss on this occasion. The Operator's response to this was that there was enclosed a costs sheet to show the calculation of the genuine pre-estimate of loss, however there was none attached to their submission. For the reasons set out below this is not relevant.
8763052662 3 21 December 2012
A further point made by the Appellant in relation to whether the parking charge is a genuine pre-estimate of loss is that the charge is actually a penalty. The Operator submits that, a penalty has been defined in the courts as a sum that is in excess of the damage caused by non-performance of an obligation under the terms of a contract.
The Operator submits that in any case, the charge is not a genuine preestimate of loss because it is an invoice that the Appellant agreed to pay, for the use of a disabled space in which the vehicle was parked without a disabled badge.
Another statement by the Appellant is that if the parking charge amounts to a genuine pre-estimate of loss, the amount of the loss should not change from £60 for the first 14 days and rise to £100 thereafter. The Operator responded that the genuine pre-estimate of loss is £100, however that there is a discount if the charge is paid within the first 14 days.
In addition, the Appellant states that if the parking charge is a genuine preestimate of loss, the amount should vary for different breaches of the terms and conditions, for example parking over a white line or overstaying. The Operator does not respond to this point.
The legal submissions of the Appellant set out above are not accepted. The Appellant parked the vehicle in the car park, thereby agreeing to the contractual terms and conditions displayed on the signs. These included the condition that vehicles may only park in a disabled bay if a valid disabled badge was displayed.
Another term of the contract was that if the vehicle was parked without complying with the conditions of the contract, the motorist agreed to pay a parking charge of £100 (or £60 if paid within 14 days). The submissions I believe the Operator is trying to make is not that the Appellant has breached the contract giving rise to damages, as the Appellant appears to believe, but that the Operator is seeking to enforce the contract. This is because the Operator is seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle at Alma Leisure Park. The contract cannot now in effect be renegotiated.
The parking charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach and would need the Operator to prove that the parking charge was a genuine pre-estimate of loss.
8763052662 4 21 December 2012
The Appellant mentions the equitable principle that "one must come to equity with clean hands", and that the Operator is acting dishonestly as they cannot legally recover the parking charge so therefore does not have "clean hands". However the law of equity is not relevant to the appeal and therefore this has been disregarded.
Finally, the Appellant quotes Vehicle Control Services (VCS) v HMRC [2012] UKUT 129 (TCC), stating that Operators cannot create contracts with motorists if they do not own or have any proprietary interest in the land. The Operator submits that the authority produced shows that the occupier of the car park has given them the power to manage the car park. In addition, the Operator submits that the signs stating that motorists who park are entering into a contract with the Operator show that a valid contract was created between the Operator and the Appellant. I am inclined to disagree, and instead following the reasoning applied in VCS v HMRC, that the Operator cannot offer the right to park as it has already been offered by the occupier, in this case as use of the car park is free. However the Operator acts as an agent for the occupier of the land, and a valid contract was created although it is between the Appellant and the occupier. Therefore in attempting to recover the parking charge in this case, the Operator is acting on behalf of the occupier as permitted by the authority, and does not need to show a proprietary interest.
The Appellant further submits that under the Unfair Terms in Consumer Contracts Regulations 1999, parking charges are unfair terms as the contracts are not individually negotiated and causes significant imbalance in the relations of the parties, to the motorist’s detriment. However as the terms and conditions of the contract are clearly displayed and the Appellant is therefore deemed to have been aware of the terms, if the Appellant did not agree he would have had the option to park elsewhere. Therefore the Unfair Terms in Consumer Contracts Regulations 1999 are not relevant on this occasion.
The Appellant not having disputed or referred to the facts in any way, I must find as a fact that, at the material time, a valid disabled badge was required to be displayed on the vehicle but was not visible. This was a breach of the terms and conditions of parking.
Accordingly, on this particular occasion, the appeal must be refused.
Shona Watson
Assessor
For everthing else there's mastercard.
For clampers there's Barclaycard.
For clampers there's Barclaycard.
0
Comments
-
Wish I understood what it meant......
0 -
Totally surprised...................................not.
""In order to avoid any further action by the operator, payment of the £100 parking charge should be made within 14 days.""
This would imply to an uninitiated driver/rk that he/she was legally obliged to pay.
""The Appellant not having disputed or referred to the facts in any way, ""
The fact is that the ppc was not entilted to claim for himself, only the landowner, which he has not done. This bit obviously went over their heads.
What is the process for appealing the appeal on the grounds they did not take any notice of B's grounds?I'd rather be an Optimist and be proved wrong than a Pessimist and be proved right.0 -
peter_the_piper wrote: »What is the process for appealing the appeal on the grounds they did not take any notice of B's grounds?
You can't appeal the appeal...but you can complain about misconduct
http://www.popla.org.uk/Complaints.htm
In this case I guess there would be grounds that the adjudicator has failure to apply relevant case law properly.Dedicated to driving up standards in parking0 -
BASFORDLAD wrote: »The Operator submits that in any case, the charge is not a genuine preestimate of loss because it is an invoice that the Appellant agreed to pay, for the use of a disabled space in which the vehicle was parked without a disabled badge.BASFORDLAD wrote: »The Operator responded that the genuine pre-estimate of loss is £100, however that there is a discount if the charge is paid within the first 14 days.
As glaring errors go, that's not bad.
So, they AREN'T judging these in the context of law then - well, they are, but they don't appear to understand the law itself.
My flippant comment about the adjudicators being trained at Solihull College might actually be true judging by the above.Je Suis Cecil.0 -
BASFORDLAD wrote: »The Operator's response to this was that there was enclosed a costs sheet to show the calculation of the genuine pre-estimate of loss, however there was none attached to their submission.
I wonder why not? Could it be it includes normal costs associated with operating a business and have nothing to do with each individual case of parking in contravention of their arbitrary made up rules?0 -
What a load of baloney! They accept that there are £100 of losses, but are willing to accept £60 payment, thus resulting in a £40 loss. Eh?
Then they say they are not losses, but an accepted parking charge according to a contract, and Unfair Contract Terms do not apply, because it was there in black & white. AIUI, the Act is still relevant even if the contract states unfair terms - a term is effectively void if it's unreasonable, which it is.
Basically their findings fly in the face of pretty much all the parking charge court cases we have come across.
Independent my foot!0 -
So POPLA have noted the legal arguements, but is ignoring them - presumably through ignorance.
What is this "disabled badge" that they keep refering too? Is it a pin badge where the pin has broken off?0 -
It appears that the Assessor has no understanding of contract law whatsoever let alone the fact as proven in an binding court decision that only the landowner can form a contract with a driver or that the disabled blue badge scheme not applying to private land.
One word : muppets0 -
They've clearly not understood the ramifications of VCS v HMRC!
They are way out of their depth here. It'll be interesting to see how POPLA pans out going forward and perhaps following a legal case or two.Je Suis Cecil.0 -
The_Slithy_Tove wrote: »
Independent my foot!
Yes, as independent as your foot is from your leg.:rotfl:Je suis Charlie0
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