POPLA Decisions

thevixen111

Here is the original thread:

forums.moneysavingexpert.com/showthread.php?t=4506249

But as this is the place for the POPLA results, I am sharing here .. The appeal was submitted WORD FOR WORD as Coupon-Mad stated but still refused.


02 July 2013

Reference:1560773XXX

alwaysquote in any communication with POPLA

XXXX (Appellant)

-v-

Combined Parking Solutions (Operator)

The Operator issued parking chargenotice number XXX arising out of the presence at The Sun Centre, XXX , on 27 November 2012, of a vehicle with registration mark XXX.

The Appellant appealed against liabilityfor the parking charge.

The Assessor considered the evidence ofboth parties and determined that the appeal be refused.

The Assessor’s reasons are as set out.

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

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



Reasons for the Assessor’s Determination



The Operator issued a parking charge notice in relation to the vehicle with registration mark XXXX because it was parked at The Sun Centre without authorisation.

The Operator’s case is that the terms and conditions for parking are displayed at the site and state that parking is for “Customers of The Sun Centre whilst using the facilities”. Copies of the conditions have been produced. They also state that “the landowner and its agents also offers all members of the public who are not parking in accordance with the above terms, the right to park on this land at a cost of £100 per vehicle per 24 period. A parking charge notice will be issued with instructions on how to pay this amount”. The Appellant does not dispute this.

The Appellant made various representations, stating that she did not see any signs displaying the parking restrictions on entering the site, so when she exited the vehicle she read the nearest sign and decided to leave after informing the person she was meeting that she was moving her vehicle. The Appellant submits therefore that she didnot agree to the terms and conditions, and that the Operator should have given her a reasonable period, as required by the British Parking Association Code of Practice, to leave the site. The Appellant does not dispute that she was not a customer of The Sun Centre.

In addition, the Appellant submits that any evidence produced by the Operator is unreliable, but has not submitted any reasons as to why this she believes this is the case. Therefore this will not affect my decision on this occasion.

It is further noted that the Appellant submits that she would not be able to afford the charge, however I am unable to consider mitigating circumstances as part of my decision.

The Appellant’s reasons on the appeal form appear to end mid sentence, ending “so there is no charge applicable. However, for t…” I will only be able to consider the submissions before me.

The Appellant submits that as the British Parking Association has stated that parking charge notices do not attract Value Added Tax, parking charges cannot be a contractual matter. I am unable to decide whether or not the payment should attract Value Added Tax, as this is a matter for HMRC.

However, I am able to consider whether or not, on the evidence before me, this appears to be a contractual agreement.

The Operator rejected the representations, as set out in the copy of the notice of rejection they sent ,because parking is only free for customers of The Sun Centre. The Operator submits that the Appellant saw the signs displaying the parking restrictions and then left the vehicle, indicating her acceptance of the terms and conditions displayed.

Operators are required to give a reasonable period to allow motorists to read the terms and conditions, and decide whether to agree to them or to leave the site. Operators should also allow a reasonable period to allow motorists to comply with the terms and conditions, for example to obtain and display a permit or pay and display ticket. However, I must find that operators are not obliged to allow extra time for motorists to complete any other tasks. In this case, I must find that once the Appellant had read and understood the terms and conditions, she should have left the site. By remaining at the site after reading the restrictions, she indicated her acceptance of the conditions and the Operator was not obliged to offer a reasonable period for the Appellant to go and inform a friend that she was leaving.

The Appellant also states that the amount of the charge should represent a genuine pre-estimate of loss, indicating that she does not believe that £100 is a genuine pre-estimate of loss. The Operator submits that the amount of the parking charge is a core term of the parking contract and therefore falls outside The Unfair Terms in Consumer Contracts Regulations 1999.

I must find as a fact that a term of the contract was that if the vehicle parked without complying with the conditions of the contract, the Appellant agreed to park on the land at a cost of £100 by way of a parking charge notice being issued. The Operator is seeking to enforce the contract, by seeking payment of the charge which the Appellant accepted as a term of the contract by parking and leaving her vehicle at The Sun Centre. 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 proportionate, and amounted to a genuine pre-estimate of loss. The parking charge is a contractual term.

The Appellant further submits that the Operator does not have a contract with the landowner to give them sufficient interest to issue parking charge notices or enter into contracts with motorists. The Operator also submits that they have written authority from the landowner to issue and pursue parking charge notices.

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) 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 theCourt of Appeal ([2013] EWCA Civ 186) where, in allowing the appeal ofVCS, the Court held:

In the present case the contract betweenVCS 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. The Operator has produced a copy of the written agreement they have with the landowner that appears to show that the Operator has the right to patrol and issue parking charge notices at The Sun Centre in accordance with the displayed signage.

Therefore, having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has authority from the landowner to issue parking charge notices in accordance with the displayed terms and conditions.

The terms and conditions stated that parking was for customers of The Sun Centre only. The Appellant parked her vehicle at the site but was not a customer. This was a breach of the terms and conditions. By parking and leaving her vehicle at the site, the Appellant agreed to comply with the terms and conditions of the site, and therefore agreed to pay the parking charge if she did not comply with the restrictions.



Accordingly, this appeal must be refused.



Shona Watson

Assessor

Hovite_2

Given the many missing spaces it looks like Perky ( i.e. YOU ) has typed up a fake result to me !

trisontana

If this is indeed Perky, he is once again breaking the rules of this forum by not declaring his connection with the PPC.

pustit

Re. the incomplete sentence in the appeal. Why did Shona not get back to the appellant to ask what the sentence was meant to say ?

nicechap

So like so many of his Small Claims wins, Perky has took himself to POPLA to lose and then crow about how valid his business model is. Did he tell coupon mad who he really was? if not, how would he know the submission was word for word what coupon mad advised?

Might be worth keeping a note of the registration in case he keeps trying to take himself to POPLA.

Maybe I've misread the POPLA case (where's the appellant's it but where was CPS' contract with the landowner which allows him to levy charges?

Also surprised there is nothing about unfair T&Cs - even Heathrow don't charge £100 a day.

Coupon-mad

pustit wrote: »

Re. the incomplete sentence in the appeal. Why did Shona not get back to the appellant to ask what the sentence was meant to say ?

Shona makes some strange decisions and this is one. All because the appellant simply told the friend she was meeting that she couldn't park there.

Hope Perky is proud of forcing people who can't afford it, to pay him £100. Shame on you Perky, and gloating about it doesn't do you any favours either. Just shows PPC World as the gloating fat cats we know they are.

What goes around comes around. You only get one life Perky and I hope you are proud of yours because no-one else is impressed.

trisontana

Of course, this is only a POPLA decision, so whether Perky will then take this to court is another matter.

kirkbyinfurnesslad_2

https://www.parkingticketappeals.org.uk

Coupon-mad

kirkbyinfurnesslad wrote: »

Coupon mad wouldn't tell someone to say to popla they couldn't afford the charge...

You can tell perky threads/usernames. They always hve numbers in the usernames

I didn't tell the appellant to say that. I noticed that bit too, maybe she added it on the covering form as well as cutting off some words from the appeal. It was this thread below and the OP had already appealed giving away the driver (pre-POFA):

https://forums.moneysavingexpert.com/discussion/4506249

The OP did pm me to say Perky had sent a shedload of 'evidence' in response to POPLA later on which I asked to see but never did see it; she told me CPS had said the grace period was only a recommendation (it is not, it's a must):

''13 Grace periods

13.1 Your approach to parking management must allow a

driver who enters your car park but decides not to park,

to leave the car park within a reasonable period without

having their vehicle issued with a parking charge notice.''


CPS must have bust a gut to get their victim and left Shona feeling ambushed IMHO.

kirkbyinfurnesslad_2

One full of puka pies you mean coupon?

I hope you don't serve them in your house......