POPLA Decisions

No_Comment

I have just received notice that I have won my appeal. This is a copy of the judgement giving the Assessors reasons. The last line is very interesting - although I would have liked to win on all the points I raised, I needn't have argued anything other than GPEOL.

Thank you to everyone who has helped me navigate this procedure and marshal the arguments needed to successfully fight this company.

29 August 2014 Reference XXXXXXXX

XXXX XXXXX (Appellant)
-v-
Vehicle Control Services Limited (Operator)

The Operator issued parking charge notice number VC0XXXXA arising out of the presence at Tower Wharf, Chester, on 26/03/2014, of a vehicle with registration mark XXXXX.

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

At 21:34 on the 26th March 2014, the operative observed a red Mazda with registration mark XXXXX parked at Tower Wharf, Chester. A parking charge notice was issued for parking in a restricted area of the car park.

The Operator’s case is that the terms and conditions at the site state ‘private property- no parking or waiting on access road at any time.’ This is stated on several signs placed throughout the parking area and as the motorist was parked on the access road, he had failed to park in accordance with the terms and conditions.

The Appellant’s case is that:

a) The signage at the site is inadequate.

b) The contravention alleged is incorrect.

c) The charge is not a genuine pre estimate of loss and is a penalty.

d) The Operator has not shown that they have the authority to issue parking charge notices at the site.

It is noted in this case that although the Operator has marked the documents referred to as confidential; these are the same documents that have been supplied by the Operator to the Appellant.

Considering carefully all the evidence before me, the Operator has stated that the charge is a genuine pre estimate of the loss incurred and in the event that it is not a genuine pre estimate of loss, the charge is commercially justified.

The Operator has provided evidence to show that they incur costs of £166.69 but in order to meet with the requirements of the British Parking Association, the maximum charge that can be imposed is £100. Although the Operator has stated the final charge, they have failed to indicate how this charge was calculated. Although the Operator has explained costs that may be incurred, a number of the items referred to amount to general operating costs and would not appear to be substantially linked to the cost incurred as a result of the breach. In the absence of an explanation as to how the amount of the charge was reached, I am not satisfied that the Operator has provided sufficient evidence to show that the charge represents a genuine pre estimate of the loss incurred.

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 on access roads. 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

bargepole

No_Comment wrote: »

The last line is very interesting - although I would have liked to win on all the points I raised, I needn't have argued anything other than GPEOL.

That's fairly standard now, the GPEOL argument is the first thing the assessors look for, and if the PPC can't demonstrate a GPEOL (which of course they can't, because parking doesn't cause them any loss at all), the assessor doesn't need to spend any time addressing the other points.

Ryan_Bryan

It's worth noting that several recent appeals upheld and documented here come from people with very few posts. It would appear that these people grasp the appeal process quickly and need little help. I'm guessing that upheld appeals are becoming far more frequent.

TheFlamingRed

Another Bog Standard ParkingEye appeal which goes uncontested to add to the collection.

The Operator issued parking charge notice number xxxxxxxxxx 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 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

Here's a link to the thread with the POPLA appeal in, in case anyone wants to use it as a base for their own appeal if the circumstances are similar: https://forums.moneysavingexpert.com/discussion/5015593

Thanks all, I enjoy reading some of the more interesting cases.

cbailster

A big thanks to all who have posted advice on these forums - got my appeal approval message today - appealed on the grounds of no GPEOL. The operator (MET Parking Services) didn't even bother to send any response to POPLA!

01 September 2014

XXXXXX XXXXX (Appellant)
-v-
MET Parking Services Ltd (Operator)

The Operator issued parking charge notice number XXXXXXXX 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 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

bazster

Astonishing! Just spotted this on PePiPoo:

As the appellant has at no point admitted to being the driver of the vehicle and no evidence of this has been provided, in order for the appellant to be liable for the charge the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions. In these circumstances, these provisions are found in paragraph 9 of Schedule 4 of the Act. The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. As the notice to keeper issued by the operator appears not to comply with sub-paragraph 2(b) as it does not “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.” The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the notice to keeper is compliant. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable against the appellant. In the light of this, I am not required to consider the appellant’s substantive case.

The appeal didn't even mention the NtK, and yet the assessor has upheld on the basis of a non-compliant NtK - and on a relatively obscure point of non-compliance too.

PoPLA proactively looking for reasons to uphold appeals? What's going on? There is more to this than meets the eye.

http://forums.pepipoo.com/index.php?showtopic=91553

HenryGale11

Just had notification of my appeal

02 September 2014
Reference 606***4068
Paul ********* (Appellant)
-v-
ParkingEye Ltd (Operator)

The Operator issued parking charge notice number 57**73/60**53 arising out of a presence on private land, of a vehicle with registration mark YD04***.
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 TO EVERYONE WHO GAVE ME ADVICE ON THIS FORUM

staceyhume

Same again and another success thanks to the people who provided the information and templates on this forum..

(Appellant)
-v-
ParkingEye Ltd (Operator)


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

bov247

As mentioned in my separate thread, a huge thanks to everyone who helped me during the whole process. Here's the assessor's report:


XXXXXX (Appellant) -v- ANPR Limited (Operator)

The Operator issued parking charge notice number XXXXXX arising out of the presence at XXXXXX, on DDMMYYYY, 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.

On DDMMYYYY, the operator’s employee observed the vehicle, registration mark XXXXXX, stopped in a no stopping zone on the site. The employee issued and attached a parking charge notice. This is not disputed by the appellant.

The appellant made representations, stating that: the charge did not represent a genuine pre-estimate of loss, the operator lacked authority from the landowner to issue parking charge notices, the signage was inadequate, no contract was formed, and the notice to keeper was not compliant with the legal requirements.

The operator rejected the representations. In regard to the genuine pre-estimate of loss issue, the operator stated that the charge represented a genuine pre-estimate of loss, and provided a breakdown of figures.

Considering the evidence before me, I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, and initial loss must be shown in order to claim costs in respect of them. As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore the charge notice is invalid. Having found this, I am not required to consider any further issues raised by the appellant.

Accordingly, this appeal must be allowed.

Christopher Monk
Assessor

thozza

On Gpeol

(Appellant)
-v-
Vehicle Control Services Limited (Operator)

The Operator issued parking charge notice number ******** arising
out of the presence at Humberside Airport, Hull, on ** May 2014, 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 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 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.

Farah Ahmad
Assessor