Shona does it again! (Popla)

BASFORDLAD

http://forums.pepipoo.com/index.php?showtopic=76696

XXXXXXXXXXXXXXX (Appellant)

-v-

ParkingEye Ltd (Operator)


The Operator issued parking charge notice number 210732/470240
arising out of the presence at ALDI Pocklington, on 31 October 2012, 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



On 6 November 2012, the Operator issued a parking charge notice because
the vehicle with registration mark XXXXXXXX was recorded on 31 October 2012
via automatic number plate recognition as having stayed in the ALDI
XXXXXXXXXXXXXX Car Park for 1 hour 43 minutes, which was longer than the
maximum stay of 1 hour 30 minutes.


The Operator’s case is that the terms and conditions for parking are clearly
displayed throughout the site. Copies of the conditions have been produced.
They state that there is a 1 ½ hour maximum stay and that a failure to comply
with the restrictions means that a parking charge notice will be issued.


The Appellant made representations, submitting that the amount of the
charge is disproportionate to the loss incurred by the Operator, and is
punitive, contravening the Unfair Contract Terms Act 1997. The Appellant also
states that the Operator has no proprietary interest in the land and therefore
has no authority to issue parking charge notices. In addition the Appellant
submits that the Operator has breached the BPA Code by not stating on their
signs that automatic number plate recognition is being used at the site.


The Operator rejected the representations, because the terms and conditions
are clearly displayed, and therefore the Appellant is deemed to have agreed
to them by parking his vehicle at the site. The Operator also states that simply
because parking contracts are not individually negotiated does not make
them automatically unfair, as the Operator offers motorists a grace period in
order to enter the car park, consider the terms and conditions, and leave if
they choose not to agree to those terms and conditions.


The Operator does not respond to the Appellant’s submission that they do not
have authority to issue parking charge notices. Membership of the Approved
Operator Scheme does require the Operator 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 BPA Code of Practice. Therefore the
Operator is likely to have authority to issue parking charge notices.


However, as the point was raised by the Appellant, then the Operator should
address it by producing such evidence as they believe shows that they do
have authority. No evidence has been produced to address this issue.


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 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 the burden.


Accordingly, this appeal must be allowed.


Shona Watson

Assessor

SodG24

BANG - case number two that falls down because the PPC is unprepared to provide the contract ! This could turn out to be the standard for future appeals.

peter_the_piper

This is the bit I like.
""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 to issue parking charge notices. ""
So prove it or lose it.

Fergie76

If everybody appeals on these points and no PPC is willing to prove otherwise (which they probably can't), I can't see POPLA lasting very long. PPC's are already reluctant to issue POPLA codes, never mind now that they probably know that they will lose everytime (apart NCP, who own some/most/all of their car parks).

muckybutt

We'll be renaming them popular as thats what they are to us :rotfl:

Guys_Dad

I think we have to be open minded about POPLA for the time being. Yes, I know its origins and Shona's first reported case on this forum was a bit of a disaster, but we need to be fair. So far, she is saying to the PPCs "Put up or shut down" as far as their contracts go.

So as the previous 3 posts have said, "Prove you have the right to charge me " should be standard in every POPLA appeal.

I also wonder if Coupon Mad and others might put reference to this judgement in their advice to people who may be a little apprehensive to the standard advice of "Ignore".

esmerobbo

They do seem resistant to produce these contracts to back up their claims don't they!
I suspect one reason is they may be the same as that which they held with Somerfield which stated court action could not be taken!

They wouldn't want that in the open would they?

longtimelurkersam

Well I have FOUR tickets in the pipeline that I will be getting POPLA codes on soon unless the PPC bottle it, but I doubt they will as the appeal will be on similar basis to previous....at least to the PPC that is.........am holding off POPLA on these pending one that is currently there to see if I am successful based on the lease overriding any signs etc.

HO87

The Somerfield contract was by no means the first that we were aware of that restricted PPC's from taking court action at all or only at the express direction of the landowner/leasee. From that perspective POPLA might actually be doing a better job at smoking out the situation than we have been able to because our only opportunity has been when proceedings have been issued. In a number of cases as soon as details of the PPC's contract has been requested the proceedings have been pulled.

I suspect that despite various pronouncements from PPC's that their contracts are VCS-compliant (i.e. their contracts confer sufficient legal rights to offer contracts to park; issue invoices on their own account and pursue court cases on their own account), that that is not actually the case - and for a variety of reasons. The principal reasons are that the landowners will not (or cannot) provide the necessary rights or - possibly the main reason - that PPC's are quietly waiting the result of the further appeal by VCS.

Commonsense dictates that a PPC is only going to decline/refuse to disclose their contract if it does not confer the necessary legal rights. With that in mind a further question is begged, if their set-up is as legal as they have long insisted, why is it that their employers are unwilling/unable to provide those necessary legal rights?

longtimelurkersam

longtimelurkersam wrote: »

Well I have FOUR tickets in the pipeline that I will be getting POPLA codes on soon unless the PPC bottle it, but I doubt they will as the appeal will be on similar basis to previous....at least to the PPC that is.........am holding off POPLA on these pending one that is currently there to see if I am successful based on the lease overriding any signs etc.

Oops make that FIVE......

spacey2012

You can only act as a litigant in person if you do own the land yourself.
Thats kind of what the "in person" bit means.
A county court might turn a blind eye, but an appeal court panel of 3 judges would not if the matter of right of audience were raised.