POPLA Decisions

truebluesfan

POPLA Decision re Doncaster Airport PCN from VCS ltd. number
9061054507


xxxxxxx (Appellant)


-v-

Vehicle Control Services Limited (Operator)

The Operator issued parking charge notice number xxxxxxx arising out of the presence at Robin Hood Airport, Approach Roads, on xx March 2014, 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 [FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]allowed. [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][/FONT][/FONT]

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith. 2 10 June 2014


[FONT=Century Gothic,Century Gothic]
[FONT=Century Gothic,Century Gothic]
Reasons for the Assessor’s Determination

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The operator issued parking charge notice number xxxxxxxx arising out of the presence at Robin Hood Airport, Approach Roads, on xx March 2014, of a vehicle with registration mark xxxxxxx. The operator recorded that the vehicle was stopped where it was prohibited to do so.

The appellant has made a number of submissions; I have not dealt with them all as I am allowing this appeal on the following ground.

It is the appellant’s case that the amount of the parking charge does not represent a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included "Central Payments Office (CPO) – Indirect Overheads". I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Amber Ahmed

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Assessor

bod1467

Another hole ripped in VCS' latest GPEOL claim attempt?

cpr1986

I have received notification today that my POPLA appeal was allowed. I overstayed on a Parking Eye carpark for about an hour.

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


Cannot thank the people on this forum enough, keep up the good work!

Zygorf_2

Another Parking Eye no show at POPLA decision received this morning:

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.

Christopher Adamson
Assessor


I hadn't posted anything on the forums but did use the templates. Keep up the good work!

Mr_Taylor

Just like to say thanks for all the fantastic advice on the site for PCN appeals.

After using your site I thought I should at least post the appeal to add to your records.



16 June 2014



XXXXXXXX(Appellant)

-v-

CP Plus Limited (Operator)

The Operator issued parking charge notice number xxxxxxxxxxxxxx arising out of the presence at Roadchef, on 1 April 2014, of a vehicle with registration mark xxxxxxxxx.

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 [FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]allowed[/FONT][/FONT].


The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

---

Reasons for the Assessor’s Determination


[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Operator issued parking charge notice number xxxxxxxxxxxxxxxxx arising out of the presence at Roadchef, on 1 April 2014, of a vehicle with registration mark xxxxxxxxx for exceeding the free parking period.

It is the Operator’s case that the Appellant’s vehicle was parked in excess of the free parking period and payment was not made for parking thereafter and this was a breach of the terms and conditions of parking as set out on signage at the site.

The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

As the Appellant has raised the issue of the charge not being a genuine pre-estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a list of heads that they have to pay for in relation to managing the car park, however, they have not stated how much they have to pay for each head listed.

I have looked at all of the evidence and have decided to allow this appeal on the basis that the Operator has failed to prove that the parking charge amount is a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

[/FONT]
[/FONT]Nozir Uddin


[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Assessor
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Coupon-mad

Well done to the recent posters above!

I should add that I helped a friend achieve one like the CP Plus one above, pretty much the same but she didn't tell me who the Assessor was:

XXXXXXXX(Appellant friend of Coupon-mad)

-v-

CP Plus Limited (Operator)

The Operator issued parking charge notice number xxxxxxxxxxxxxx arising out of the presence at a MOTORWAY SERVICES of a vehicle with registration mark xxxxxxxxx.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed. I have looked at all of the evidence and have decided to allow this appeal on the basis that the Operator has failed to prove that the parking charge amount is a genuine pre-estimate of loss.

morsicatio

Dear All

I have great news. I have had two PCN tickets canceled. Thanks in its entirety to this site. I would also like to give a particular grateful thanks to Coupon-mad and RedX, who basically spoon fed me the correct course of action, after they realised how incredibly dense I was/am.

1. Excel Parking: Result:

-v-
Excel Parking Services Limited (Operator)

The Operator issued parking charge notice number XXXXXXX arising

out of the presence atXXXXXXX, on XXXXXX 2013,

of a vehicle with registration mark XXXXXXX.

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

Reasons for the Assessor’s Determination

On XXXXXXX2013, a parking charge notice was applied to a vehicle with

registration mark XXXXXXXX for parking in a pay and display car park without

displaying a valid pay and display voucher/permit.

The Operator’s case is that the terms and conditions for parking in the car

park are displayed on numerous signs situated at the entrance and

throughout the car park. The signage says: “Customers have 15 minutes from

entering the car park to purchase a pay and display voucher.” The Operator

says that their photographic images show that the Appellant’s vehicle was

parked for 19 minutes without purchasing a pay and display voucher. They

have produced photographic evidence which illustrates this point and they

have produced a copy of the parking charge notice and the site’s signs.

The Appellant has made a number of submissions, however, I will only

elaborate on the one submission that I am allowing this appeal on, namely

that the parking charge amount is not a genuine pre-estimate of loss.

The Operator rejected the Appellant’s representations, as set out in the

correspondence they sent because, they state that a breach of the car park

conditions had occurred, by parking without displaying a valid pay and

display voucher/ permit. The Operator has enclosed a pre-estimate of loss

statement. They advise that they have calculated a genuine pre-estimate of

losses as £103.21.

The burden is on the Operator to prove its case on the balance of

probabilities. Although the Operator has produced a breakdown of costs

incurred in managing the parking site, this is a general list of costs and does

not address the loss that was caused by the Appellant’s breach of the terms

and conditions of parking. The parking charge must be an estimate of

reasonable losses in order to be enforceable. Hence, any consequential loss

must be based on an initial loss, and any heads claimed for must be in the

reasonable contemplation of the parties at the time of issue of the parking

charge notice.

In this case the Operator has produced a break-down of how it submits it

arrives at its pre-estimate of loss. A number of the heads include general

operational costs, and costs which do not relate to the breach in question,

such as write-offs for other parking charge notices. Furthermore, I find that a

substantial cost referred to by the Operator – that incurred during debt

recovery – is not a reasonable loss to include in the estimate. Only a minority

of parking charges issued will result in costs associated with debt recovery

and there is no evidence before me to show otherwise. Whilst any motorist

who causes an initial loss by parking in breach of the terms of parking must

accept that an Operator will incur costs in pursuing this loss, I am not satisfied

that it would be within the reasonable contemplation of the parties that costs

related to debt recovery by a third party would be incurred, and so I am not

satisfied that such charges may be included within the parking charge itself.

Consequently I find that the Operator has failed to produce sufficient

evidence to demonstrate that the parking charge is a genuine pre-estimate

of loss and they have not discharged the burden of proof.

Accordingly, I allow the appeal.

xXXXXX

Assessor

2. Parking Eye: Result:

v-
ParkingEye Ltd (Operator)

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

Parking on Private Land Appeals is administered by the Transport and Environment Committee of XXXXX 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.

Assessor

Thanks again, really appreciate the help!

Computersaysno

1 GPEOL and 1 PSDSU...nice result.

heff05

Hi all,

Please see below details of my successfull appeal against parking eye!!!!!!!!!

Cheers

Heff



June 2014

Reference xxxxxxxxxx

always quote in any communication with POPLA

(Appellant)

-v-

ParkingEye Ltd (Operator)

The Operator issued parking charge notice number xxxxxxx arising out of a presence on private land, of a vehicle with registration mark xxxxxxx.

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
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]allowed. [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][/FONT][/FONT]
The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.
June 2014
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
Reasons for the Assessor’s Determination
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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.
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
Shehla Pirwany
[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][/FONT][/FONT]
Assessor


AND THIS WAS MY APPEAL TO POPLA


Dear POPLA Assessor,

Re: ParkingEye Parking Charge Notice xxxxxxxxxx, POPLARef: xxxxxxxxx

I am the registered keeper and I wish to appeal a recentparking charge from ParkingEye. I submit the points below to show that I am notliable for the parking charge:

1- No genuine pre-estimate of loss

2- No standing or authority to pursue charges nor formcontracts with drivers

3- Flawed landowner contract and irregularities with anywitness statement

4- The signage was not compliant with the BPA Code of Practiceso there was no valid contract formed between ParkingEye and the driver

5- ANPR Accuracy and breach of the BPA Code of Practice 21.3



1) No genuinepre-estimate of loss

There was no damage nor obstruction caused so there can beno loss arising from the incident. ParkingEye notices allege 'breach ofterms/failure to comply' and as such, the landowner/occupier (not their agent)can only pursue liquidated damages directly flowing from the parking event.Given that ParkingEye charge the same lump sum for a 15 minute overstay as theywould for 150 minutes, and the same fixed charge applies to any allegedcontravention (whether serious/damaging, or trifling as in my case), it isclear there has been no regard paid to establishing that this charge is a genuinepre-estimate of loss.

This charge from ParkingEye as a third party business agentis an unenforceable penalty. In Parking Eye v Smith, Manchester County CourtDecember 2011, the judge decided that the only amount the Operator couldlawfully claim was the amount that the driver should have paid into themachine. Anything else was deemed a penalty.

The Office of Fair Trading has stated to the BPA Ltd that a'parking charge' is not automatically recoverable simply because it is statedto be a parking charge, as it cannot be used to state a loss where none exists.And the BPA Code of Practice states that a charge for breach must whollyrepresent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-knowncase on whether a sum is a genuine pre-estimate of loss or a penalty: DunlopPneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79.Indeed I expect ParkingEye might cite it. However, therein is the classicstatement, in the speech of Lord Dunedin, that a stipulation: “… will be heldto be a penalty if the sum stipulated for is extravagant and unconscionable inamount in comparison with the greatest loss which could conceivably be provedto have followed from the breach.'' There is a presumption... that it ispenalty when "a single lump sum is made payable by way of compensation, onthe occurrence of one or more or all of several events, some of which mayoccasion serious and others but trifling damage".

No doubt ParkingEye will send their usual well-knowntemplate bluster attempting to assert some ''commercial justification'' but Irefute their arguments. In a recent decision about a ParkingEye car park atTown Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye'sgeneric submission that the inclusion of costs which in reality amount to thegeneral business costs incurred for the provision of their car park managementservices is commercially justified. ''The whole business model of an Operatorin respect of a particular car park operation cannot of itself amount tocommercial justification. I find that the charge is not justified commerciallyand so must be shown to be a genuine pre-estimate of loss in order to beenforceable against the appellant.''

My case is the same and POPLA must be seen to be consistentif similar arguments are raised by an appellant.

2) No standing orauthority to pursue charges nor form contracts with drivers

ParkingEye do not own the land mentioned in their Notice toKeeper and have not provided any evidence that they are lawfully entitled todemand money from a driver or keeper. Even if a contract is shown to POPLA, Iassert that there are persuasive recent court decisions against ParkingEyewhich establish that a mere parking agent has no legal standing nor authoritywhich could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the BrentfordCounty Court 23/10/2013 District Judge Jenkins checked the ParkingEye contractand quickly picked out the contradiction between clause 3.7, where thelandowner appoints ParkingEye as their agent, and clause 22, where is statesthere is no agency relationship between ParkingEye and the landowner. The Judgedismissed the case on the grounds that the parking contract was a commercialmatter between the Operator and their agent, and didn’t create any contractualrelationship between ParkingEye and motorists who used the land. This decisionwas followed by ParkingEye v Gardam, Case No.3QT60598 in the High WycombeCounty Court 14/11/2013 where costs of £90 were awarded to the Defendant.District Judge Jones concurred completely with the persuasive view inParkingEye v Sharma that a parking operator has no standing to bring the claimin their own name. My case is the same.

3) Flawed landownercontract and irregularities with any witness statement

Under the BPA CoP Section 7, a landowner contract mustspecifically allow the Operator to pursue charges in their own name in thecourts and grant them the right to form contracts with drivers. I requireParkingEye to produce a copy of the contract with the landowner as I believe itis not compliant with the CoP and that it is the same flawed business agreementmodel as in Sharma and Gardam.

If ParkingEye produce a 'witness statement' in lieu of thecontract then I will immediately counter that with evidence that these havebeen debunked in other recent court cases due to well-publicised and seriousdate/signature/factual irregularities. I do not expect it has escaped the POPLAAssessors' attention that ParkingEye witness statements have been robustly andpublicly discredited and are - arguably - not worth the paper they arephotocopied on. I suggest ParkingEye don't bother trying that in my case. Ifthey do, I contend that there is no proof whatsoever that the alleged signatoryhas ever seen the relevant contract terms, or, indeed is even an employee ofthe landowner, or signed it on the date shown. I contend, if such a witnessstatement is submitted instead of the landowner contract itself, that thisshould be disregarded as unreliable and not proving full BPA compliance norshowing sufficient detail to disprove the findings in Sharma and Gardam.

4) The signage wasnot compliant with the BPA Code of Practice so there was no valid contractformed between ParkingEye and the driver

I submit that thissignage failed to comply with the BPA Code of Practice section 18 and appendixB. The signs failed to properly warn/inform the driver of the terms and anyconsequences for breach. Further, because ParkingEye are a mere agent and placetheir signs so high, they have failed to establish the elements of a contract(consideration/offer and acceptance). Any alleged contract (denied in thiscase) could only be formed at the entrance to the premises, prior to parking.It is not formed after the vehicle has already been parked, as this is toolate. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have nosignage with full terms which could ever be readable at eye level, for a driverin moving traffic on arrival. The only signs are up on poles with the spycameras and were not read nor even seen by the occupants of the car.

5) ANPR Accuracy andbreach of the BPA Code of Practice 21.3

This Operator isobliged to ensure their ANPR equipment is maintained as described in paragraph21.3 of the British Parking Association's Approved Operator Scheme Code ofPractice. I say that Parking Eye have failed to clearly inform drivers aboutthe cameras and what the data will be used for and how it will be used and stored.I have also seen no evidence that they have complied with the otherrequirements in that section of the code.

In addition I question the entire reliability of the system.I require that ParkingEye present records as to the dates and times of when thecameras at this car park were checked, adjusted, calibrated, synchronised withthe timer which stamps the photos and generally maintained to ensure theaccuracy of the dates and times of any ANPR images. This is important becausethe entirety of the charge is founded on two images purporting to show myvehicle entering and exiting at specific times. It is vital that this Operatormust produce evidence in response and explain to POPLA how their system differs(if at all) from the flawed ANPR system which was wholly responsible for thecourt loss recently inParkingEye v Fox-Jones on 8 Nov 2013. That case wasdismissed when the judge said the evidence from ParkingEye was fundamentallyflawed because the synchronisation of the camera pictures with the timer hadbeen called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, Irequire ParkingEye to show evidence to rebut the following assertion. I suggestthat in the case of my vehicle being in this car park, a local camera took theimage but a remote server added the time stamp. As the two are disconnected bythe 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 theimage. The operator appears to use WIFI which introduces a delay throughbuffering, so "live" is not really "live". Hence without asynchronised time stamp there is no evidence that the image is ever timestamped with an accurate time. Therefore I contend that this ANPR"evidence" from the cameras in this car park is just as unreliableand unsynchronised as the evidence in the Fox-Jones case. As their whole chargerests upon two timed photos, I put it to ParkingEye to prove to the contrary.

I request that my appeal is upheld and for POPLA to informParkingEye to cancel the PCN.



Yours faithfully,



THE REGISTERED KEEPER

Precision

Parking Eye:

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.

Christopher Adamson

Assessor