POPLA Decisions

dmsjlloyd

We won! thank you for your help

Orignal post: https://forums.moneysavingexpert.com/discussion/4964273=
(Appellant)

-v-

HighviewParking Limited (Operator)

TheOperator issued parking charge notice number xxxxxxxxx arising out of the presence at VictoriaCentre, Consett, on xx April 2014, of a vehicle with registration mark xxxxxxx.

TheAppellant appealed against liability for the parking charge.

TheAssessor has considered the evidence of both parties and has determined thatthe appeal be allowed.

TheAssessor’s reasons are as set out.

TheOperator should now cancel the parking charge notice forthwith.





Reasons for the Assessor’sDetermination

On xxxx April 2014, a parkingcharge notice was applied to a vehicle with registration mark xxxxxx for violating the terms and conditionsdisplayed on signage.

The Operator’s case is that theterms and conditions on site indicate that the site is private car park with 2hours free parking between 6am and 8pm. They say that the Appellant’s vehiclewas captured entering the site at 15:51 and exiting at 18:24 violating theterms and conditions displayed on signage. They have provided images of thevehicle and a genuine pre-estimate of loss statement to support their case.

The Appellant has made a numberof submissions, however, I will only elaborate on the one submission that I amallowing this appeal on, namely that the amount of the parking charge notice isnot a genuine pre-estimate of loss.

The Operator rejected theAppellant’s representations, as set out in the correspondence they sentbecause, they state that a breach of the car park conditions had occurred byviolating the terms and conditions displayed on signage.

They state that they havecalculated the amount of the parking charge notice as a reasonable charge forliquidated damages as they incur significant costs in managing the parkinglocation to ensure compliance to the stated terms and conditions and to followup any breaches of these that are identified. They advise that some of thesecosts include but are not restricted to the following: erection and maintenanceof site, wages and salaries, DVLA fees etc. They also cited some case law tosupport their case.

The burden is on the Operator to address the Appellant’ssubmissions and to prove that the amount of the parking charge notice is agenuine pre-estimate of loss. Although the Operator has produced a report ofcosts incurred in operating and managing the parking site, I find this to be ageneral list of operational costs and this list does not address the loss thatwas caused by the Appellant’s breach of the terms and conditions of parking andit would have been incurred regardless of whether the Appellant breached theterms and conditions. The Operator also failed to provide any figuresrepresenting these costs. I am therefore, not satisfied that the Operator hasproved that the amount for the parking charge notice is a genuine pre-estimate ofloss.



Considering all the evidence before me, I find that theOperator has failed to prove that the amount of the parking charge notice is agenuine pre-estimate of loss.

Aurela Qerimi
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
Assessor
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MWOOLY10

(Appellant)

-v-

Excel Parking Services Limited (Operator)

The Operator issued parking charge notice number xxxxxxxxxx arising out of the presence at the Peel Centre, on 11 January 2014, of a vehicle with registration mark xxxx xxx.

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.

09 July 2014

Reasons for the Assessor’s Determination

The Operator issued parking charge notice number xxxxxxxxxx arising out of the presence at the Peel Centre, on 11 January 2014, of a vehicle with registration mark xxxx xxx for parking without clearly displaying a valid ticket or permit.

It is the Operator’s case that the Appellant’s vehicle was parked without clearly displaying a valid ticket or permit 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 managing the site, however, they have not stated how much they have to pay for each head listed. This is a general list of operational costs and does not address the loss that was caused by the Appellant’s breach of the terms and conditions of parking.

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.

Nozir Uddin
Assessor

detox432

Hi all, thanks for the help on winning this case. My ticket was issued in Fleet, in what looks like waste ground. It was dark, no entrance signage, signage was unlit and an old clamping sign was still on the wall. Some of the photos that UKCPM sent to me were just black, I couldn't even see my car!!! After losing my appeal with UKCPM, I appealed to POPLA, I received the following email today:

PARKING ON PRIVATE LAND APPEALS
PO Box 70748 London EC1P 1SN
0845 207 7700[IMG]resource://skype_ff_extension-at-jetpack/skype_ff_extension/data/call_skype_logo.png[/IMG]0845 207 7700
[EMAIL="enquiries@popla.org.uk"]enquiries@popla.org.uk[/EMAIL]
www.popla.org.uk

B**** ******** (Appellant)
-v-
UK Car Park Management Limited (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.

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
AssessorCall
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kotopoulo

Thanks to everyone who has contributed advice to this forum.
I received a PCN from Parking Eye for parking in an Aldi car park.
Several emails and phone calls to Aldi were a waste of time and I referred the case to POPLA. I copied most of the appeal from examples posted here. I have just received the adjudicator's decision and it appears the ParkingEye, knowing they were on a loser, didn't even bother to argue the case. The only result of this farce is that I will never be shopping at Aldi again.

Here is my appeal -
Dear POPLA,

I am the registered keeper of vehicle reg XXXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

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

Their sign states the charge is for 'not complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss.

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage - no contract with driver

The cark park does not have adequate entrance signs in breach of the British Parking Association Code of Practice section 18.2. There is only one sign by the entrance of the car park and it is not visible on entrance to the car park, but only on exit as it points inwards, and so was not seen by the driver.

Also, due to their high position, overall small size and the completely illegible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

3) Lack of standing/authority from landowner

Parking Eye has no title in this land and no British Parking Association compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

British Parking Association Code of Practice paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Parking Eye to strict proof of the contract terms with the actual landowner (not a lessee or agent). Parking Eye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Parking Eye are entitled to pursue these charges in their own right.

I require Parking Eye to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the British Parking Association Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the British Parking Association Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.


4) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A sign of terms placed too high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on illegible signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


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



And here is the adjudicator's decision -
The Operator issued parking charge notice number xxxxxxx 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

Wood182

Hi all,

Thanks so much for the useful and accessible advice that this forum provides. I imagine these PCNs are a source of much worry for many people, and it's great to find this forum and realise that you can be walked through the process and easily beat the parking companies.

Here's the link to my original appeal (needs https:// in front of it)

forums.moneysavingexpert.com/showthread.php?t=4983769

And the result:


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

Coupon-mad

Well done - this was against Athena wasn't it? They normally do send flawed evidence with no proof of contract in that car park specifically, and they were losing every time so maybe they've learnt not to bother when they see one of the forum's appeals!

MrManc

Thanks for all of your help guys.

Original thread here:
https://forums.moneysavingexpert.com/discussion/4996386

POPLA response:

(Appellant)
-v-
Car Park Management Services (Operator)



The Operator has informed us that they have cancelled parking
charge notice number xxx, issued in respect of a vehicle with the
registration mark xxxx .

Your appeal has therefore been allowed by order of the Lead
Adjudicator.

You are not liable for the parking charge and, where appropriate, any
amounts already paid in respect of this parking charge notice will be
refunded by the Operator.

Coupon-mad

AS Parking beaten on GPEOL because they tried to have it both ways and argued 'either' contract 'or' GPEOL which gave away the real intention of the charge as no such GPEOL!

This was at the Promenade car park, Perranporth, sign shown in post #10 here:

http://forums.pepipoo.com/index.php?showtopic=90439

MSE thread here:

https://forums.moneysavingexpert.com/discussion/comment/66023412#Comment_66023412


Appellant
Reference 0611294001
-v-
Athens Security Services Ltd T/A AS Parking Ltd (Operator)

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

Reasons for the Assessor’s Determination

The operator issued parking charge notice number xxxxx arising out of the presence at Promenade Car Park, on xx April 2014, of a vehicle with registration mark xxxxxxx. The operator recorded that the vehicle was parked displaying an expired ticket.

The appellant has made various representations; 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 operator has responded by stating that the amount of the parking charge is a term of the contract and not an amount representing damages for a breach of contract. The operator has also provided a breakdown of the losses incurred by them if the amount of the parking charge notice is held to be an amount representing damages for a breach of contract.

I find that it is not permissible for the operator to do this.

This is because when a contract is formed the intention of the parties is fundamental. It is clear that the operator has intended the amount of the parking charge notice to be consideration and not damages.

Considering carefully, all the evidence before me, after objectively assessing the signage displayed at the site, I find that the signage does not mean that motorists may not display a valid ticket provided that they pay £100, which would make the amount of the parking charge consideration. However, I do find that the signage means that not displaying a valid ticket is not permitted and that a parking charge of £100 will be issued to vehicles. Therefore, I find that the amount of the parking charge does represent damages for a breach of contract.

Accordingly, this appeal must be allowed.

Amber Ahmed
Assessor






Strange one in many ways - and people need to be careful with AS Parking and Premier Parking Solutions as their GPEOL statements are very similar and PPS have won POPLA cases with their drivel.

nigelbb

Coupon-mad wrote: »

AS Parking beaten on GPEOL because they tried to have it both ways and argued 'either' contract 'or' GPEOL which gave away the real intention of the charge as no such GPEOL!

This was at the Promenade car park, Perranporth, sign shown in post #10 here:

http://forums.pepipoo.com/index.php?showtopic=90439

The assessor got the decision correct but the reason wrong. The £100 claimed is definitely not consideration as a contractually agreed sum. The sign shows typical PPC stupidity in trying have it both ways & warns that "By parking in contravention of the above Terms & Conditions of use, you agree to pay the sum of £100 per day". This is a logical & legal nonsense. You cannot contract to do something that is forbidden. The sum of £100 is clearly a penalty intended to deter parking in breach of the T&Cs.

thankx

Hi,
Thankyou all so much for all your help, pleased to say I won at Popla, I got the decision yesterday.

The last paragraph is below:

If the charge is not found to amount to a genuine pre estimate of loss, the Operator has stated that the charge is commercially justified. The Operator has provided a number of cases in support of this submission. In cases I have seen from the higher courts and indeed the cases submitted by the Operator, it is clear that the charge cannot be commercially justified if the primary purpose of the charge is to deter a breach.
Where the charge represents damages, the amount of the charge is required to be compensatory rather than punitive; with the goal of placing the parties in the position they would have been in, had the contract been performed. In this case, the primary purpose of the charge is to prevent vehicles from parking without purchasing parking time. This is to deter a breach of the terms and conditions and I am consequently not satisfied that the charge can be commercially justified. The Operator has not demonstrated that the charge is a genuine pre estimate of loss or commercially justified and I therefore have no evidence before me to refute the Appellant’s submission that the charge does not amount to a genuine pre estimate of loss. As a result, I need not decide any other issues raised by the Appellant.
Accordingly, this appeal must be allowed.
Shehla Pirwany
Assessor