POPLA Decisions

lordazathoth

A great thanks to you all and good luck to those who are appealing

Decision: Accepted

Date: 13 May 2014

Assessor: Christopher Adamson

reported: https://forums.moneysavingexpert.com/discussion/4917697

Successful grounds:
Parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

PPC: Parking Eye



The Operator issued parking charge notice number XXXXXX/XXXXXX

arising out of a presence on private land, 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.

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

It is the Appellant’s case that the parking charge notice was issued

incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.

gavcradd

Just received the POPLA decision and, as predicted, I won. Here are the details :

PPC : ParkingEye

The Operator issued parking charge notice number xxxxxx arising out of a presence on private land, 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

It is the Appellant’s case that the parking charge notice was issued incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

Shehla Pirwany
Assessor

Thanks for all of the help on here - I actually feel pretty gutted that ParkingEye didn't even contest it, I would have liked to have won on a legal point rather than a no-show. I might go and park on there again next week

Custard_Pie

gavcradd wrote: »

Thanks for all of the help on here - I actually feel pretty gutted that ParkingEye didn't even contest it, I would have liked to have won on a legal point rather than a no-show. I might go and park on there again next week

They know that as soon as they read GPEOL that they are currently going to lose.

On the plus side, they still get charged the PoPLA fee.

gavcradd

Custard_Pie wrote: »

They know that as soon as they read GPEOL that they are currently going to lose.

On the plus side, they still get charged the PoPLA fee.

This is what I don't understand - I emailed ParkingEye telling them that if they refused my appeal, I would be going to POPLA and using the GPEOL line. Why didn't they save themselves some money and just cancel it then?

Computersaysno

I think the staff are creating work for themselves to try to save their jobs.

BakerBoy

Assesor: Shehla Pirwany


Appeal RE Parking Eye
I, as the registered keeper received a parking charge penalty for allegedly overstaying at Seaton Co-Op for 43 minutes. My appeal was refused by Parking Eye because I had not provided sufficient evidence to show that the driver did not break the terms and conditions on the signage.

I am appealing this penalty on the following points.

1. The Charge is not a genuine pre-estimate of loss.
2. No contract with the Landowner
3. Signage
4. ANPR Accuracy

1. The Charge is not a genuine pre-estimate of loss.

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not beset at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

Considering the alleged 43minute overstay I contest that £90 is not a reasonable or genuine pre-estimate of loss.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.


2. No contract with the Landowner
Parking Eye does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
Parking Eye has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

Parking Eye must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between Parking Eye and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

3. Signage


I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Parking Eye needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I put Parking Eye to strict proof to provide evidence of date of erection of all signage and proof of compliance of that signage with the standards laid down in the TSRGD 2002 and with BPA Code of Practice and BSI Standards.





4. ANPR Accuracy
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the Parking Eye system and I put this Operator to strict proof to the contrary.

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.



I therefore respectfully request that my appeal is upheld and the charge dismissed.

Kind Regards


Many Thanks

Lfg91

Just to say thanks to the people on here who helped with mine, appeal allowed.

Lauren ****** (Appellant)
-v-
ParkingEye Ltd (Operator)
The Operator issued parking charge notice number ******* arising out of a presence on private land, 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.

It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.
Shehla Pirwany Assessor

WTNinja

gavcradd wrote: »

This is what I don't understand - I emailed ParkingEye telling them that if they refused my appeal, I would be going to POPLA and using the GPEOL line. Why didn't they save themselves some money and just cancel it then?

I wondered that too. I guess enough people must cave in after getting the second "scare-o-gram" which gives the POPLA code. If ~50% of people then pay up, it has covered the POPLA fees.

Or perhaps they are holding out while they attempt to cajole the POPLA adjudicators. If they ever manage to convince them to change their stance on GPEOL, they want a nice batch of "wins" to parade around.

Ghostofjohnlennon

Many thanks to all for the invaluable info on these pages.
Just got an appeal in my favour for PCN for 'breach of terms of use of access roads' at JLA.

Submission to popla:
Appeal reasons:
Dear Sirs I received the above referenced Parking Charge Notification for "allegedly breaching the terms and conditions of use of the Privately Operated Access Roads at Liverpool John Lennon Airport. Following representations to Vehicle Control Solutions (VCS) on 10th February,the day following the alleged incident, they have now rejected my representations and advised that, should I wish yourselves to arbitrate in this matter, I should submit an appeal by todays date.
I have been in correspondence with Liverpool John Lennon Airport since 13th April in an attempt to get sight of the terms and conditions referenced above.
They referred me to VCS, whom I requested the T&C's from on 18th April. To date, I have had no response from VCS to my request and therefore I have to proceed without full information regarding the alleged breach. I ask, therefore, that you register my appeal within the required timescale, and grant me some latitude in providing more complete details as I receive the information that I have requested. (Note, however, that the difficulty in obtaining this information, and it's lack of availability, forms part of the grounds for appeal.)
I wish to appeal the charge notice on the following grounds:
1) The amount demanded is a penalty and not a genuine pre estimate of loss.
2) No landowner contract nor legal standing to form contracts or charge drivers.
3) There is no contract between the driver or keeper and VCS Ltd and therefore any demand for payment is illegal.
4) Signage is inadequate, misleading and unclear and is short of the standards required by the BPA code of practice, or the Department of Transport standards for road signs. I will submit further details detailing my points, with appropriate supporting evidence, via your website. Yours faithfully

I never got around to forwarding more detailed arguments. Neither did VCS!

Decision:
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.
Christopher Adamson
Assessor

Keep fighting the good fight!

Ghostofjohnlennon

In fact, there have been about 5 recent decisions on here with identical wording! (Now that I read them!)
Are the cowboys on the run?