POPLA Decisions

fuzzy_wuzzy

Hi All,

A huge thanks to everyone who helped me fight this one (Stockport Peel Centre). Sorry for the delay in posting the result...

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

The Operator rejected the Appellant’s representations, as set out in the notice of rejection 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. They state that they have calculated this sum a genuine pre-estimate of loss as they incur significant costs in ensuring compliance to the stated terms and conditions and to follow up any breaches of these identified and these costs must be read as a predicted charge or estimate prior to the breach. They submit that some of these costs include parking charge creation and issue, POPLA case management, costs of maintenance and the full costs incurred can be estimated in advance of any actual loss to be a total of £166.01.

The Operator also cited recent case law to support their case. They state that their liquidated damages clause is based on a genuine pre-estimate of loss which include losses that could conceivably follow a breach, not necessarily losses which are ‘actual’ or even likely to follow a breach. I find that the Operator has not adequately shown how they have come to these costs and they have not included figures representing such cots.

The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, 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. Although the Operator has sought to justify the parking charge notice as being a genuine pre-estimate of loss, I am not satisfied that the Operator has sufficiently shown an initial loss or has proved that the parking charge notice represents a genuine pre-estimate of loss."

Leemc7

Apologies, I did not keep the text for popla appeal as I copied everything from all links associated with the newbies thread so can't remember which one. Thanks MSE & Newbies thread. This was a 17 minute overstay and despite a bit of effort to read well worth it to save £60-£100.

Coupon-mad

modern_monkey wrote: »

I made a appeal against Parking Eye ticket in Manchester that 'double dipped' my car. I couldn't produce visual evidence of my car being elsewhere during the ticket time, but I knew I had visited Tesco for a large shop (over £50) and the distance between home and Tesco was too long to carry items. I screen grabbed both of these. Appeal upheld.

Reasons for the Assessor’s Determination
It is not in dispute that the vehicle was detected by the operator’s ANPR
system entering the car park at 11:16 and exiting at 17:49. As the difference
between the times was larger than the 2 hour permitted free stay, a parking
charge notice was issued.
The appellant made representations, stating that he left the car park and
returned and that this was not detected by the operator’s ANPR system.
The operator state that this was not possible...
Considering all the evidence before me, I find that the appellant has provided evidence, by producing an extract from his bank statement, that he was at a Tesco store during part of the time the operator claims his vehicle was parked in the car park.

As the appellant has shown that the stores are nearly 1.8 miles away from each other, I find on the balance of probabilities that the appellant travelled to and from Tesco in the vehicle, meaning that the vehicle cannot have been in the car park for the duration of the period to operator alleges. As there is no way of knowing how long the appellant was parked in the car park for each of the two times, I cannot find that it was
over 2 hours, so cannot find that a parking charge notice was validly incurred by the appellant.
Accordingly, the appeal is allowed.

That was a very risky approach (may not seem so, but it was because telling the story of what happened normally loses - it was your evidence that swung it!). But well done for achieving a rare thing - a POPLA decision found on grounds that are different from the normal 'not a genuine pre-estimate of loss'!

Could you let us know the Assessor, the date on the decision and the 10 digit code, if you don't mind - we'd like other people with a 'double dip' issue to be able to cite this decision at POPLA in future.

Also the lies from ParkingEye saying this is 'not possible' need reporting to the BPA in a complaint email (see Newbies thread post #6), copying in this link:

http://www.britishparking.co.uk/how-does-anpr-work

And asking the BPA to investigate why this Operator is lying to POPLA that two visits are 'not possible' when the BPA website itself states the opposite and has a duty to ensure ANPR-using members realise the failings of their system which can be caused by something as simple as a large van following a car out closely and so obscuring the numberplate from the angle of the ANPR camera view:

'As with all new technology, there are issues associated with its use:

a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.'

eviesmum30

Just want to say a massive thanks to everyone who helped draft my letter appealing against a ParkingEye ticket at a motorway services. The result came through in my favour (although it was about a fortnight after the hearing date given on the POPLA receipt so I got a bit worried!).

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.

Thanks again!! :beer:

Freedomcoming

Thanks so much everyone for posting on here. I read it later than I needed to, after I had appealed to NPE, so had to go through the POLPA appeal route. The parking I used was clearly unpopular, and I did submit photographs to prove this - which I took on a different day, explaining this. I also said I parked for free in an equally unpopular nearby area to take them. :-) Here's the pertinant cut from the response from POPLA:

"It is the Operator’s case that the Appellant’s vehicle was unauthorised to park at the site and by doing so, they breached the terms and conditions of parking as set out on signage at the site.
The Appellant has made a number of submissions, however, I am only going to elaborate on the one submission that I am allowing this appeal on, namely, that the parking charge amount is punitive.
Having reviewed the evidence, I note that the Appellant states that the parking charge amount is punitive. In effect, this means that the Operator has to prove that their parking charge amount is a genuine pre-estimate of their loss. The Operator has not dealt with this issue in their evidence and therefore, I have nothing before me to refute the Appellant’s submission. The onus is on
the Operator to prove their case against the Appellant and on this occasion they have not done so.
Accordingly, this appeal is allowed." YES!

Plz_sort

So is this pre-estimate of loss really right and effort to make you pay??



Genuine Pre-estimate of Loss

Parking Charge Notices Represent

The Parking Charge Notices that we issue represent a claim for liquidated and ascertained damages in respect of a breach of the ‘parking contract’ which is deemed to have been offered by our signage at the location, and accepted by the motorist in that he opted to remain. The breach of the stated Terms & Conditions has been proved by other evidence elsewhere in this submission. When a motorist parks in breach of the Terms and Conditions of Parking, a loss is incurred by us as incorrect parking prevents the efficient management of the car park.

Background Information:

There is a long and detailed process put in place to enforce parking T&Cs at a parking site, which if were not undertaken would lead to a loss of control of the car park, where vehicles park without consideration to others and/or block access routes etc., a loss of revenue where drivers did not use the premises (store) or forgot to pay, or the failure to keep allocated bays for genuine customers or disabled parking bays available for those in the most need of it. If the vehicles using our car parks and parked their vehicles just for 10 minutes without using the store the associated company (store) would lose revenue in access of £100,000 pa which would not be sustainable to them as a company or an acceptable loss to our clients.

Burden of Proof

The Appellant has not offered any evidence as to why the parking charge notice exceeded the appropriate amount they have simply stated that in their opinion it does. We contend that the burden of proof lies with the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate. That being said we aim to set out our position in the remaining document as to why our parking charge notice can be determined as a genuine pre-estimate of the losses incurred by us due to the breach of the stated terms and conditions of the car park.

The genuine pre-estimation of loss set out below refers to costs that we estimate, at the time of issuing the Parking Charge Notice, would be incurred in all cases.

• DVLA Fees / Processing Costs for this appeal cost is £13
• Expense of each appeal is for example Stationery includes postage and printing £2.50
• Parking Attendants and Appeals Department staff wages and salaries which includes Employers National Insurance and Tax (PCN recording and issuing) for each case 13.81
• Appeals Staff 1 hour (call handling / appeals writing) for each case is £7.00
• Office Management to handle and maintain up-to-date Data which includes evidence of photos and information of parking charge notice putting together, dealing with appeals via email or writing also dealing with POPLA appeals for each case cost us £24.50
• IT system up keep to make sure all the information comes up correct and secure for each case cost us £33.19
• Total Genuine Pre-estimation of Loss for this case. £94.00

The genuine pre-estimation of loss detail summary below.

• Wages and Salaries including Employers NI Contributions - This is for the time it takes an attendant on the ground who patrols the car parks, having once identified a contravention, to initially issue and record the Parking Charge Notice’s and document, photograph and make notes of the transgression. We currently employ 12 attendants. We estimate that on average an attendant spends 10 - 15 minutes recording and issuing a Parking Charge Notice. The back office staff who manually check the issue of a Parking Charge Notice, examine and answer an appeal, take telephone questions or queries with regards to the issue of a Parking Charge Notice and take phone payments for the Parking Charge Notice, we estimate that it takes between 45 mins for each appeals to reply depending on the nature of the appeal. Some appeal do take a week if appellant is not satisfied with the answer, it take additional time if these appeals are also being dealt with over the phone and are passed to Supervisor or Managers. If the appeals goes to the Supervisor or Manager, it includes the cost of managers to examine and quality control an appeal reply, the compiling of a POPLA evidence pack, the writing of an appeal reply and the submission of the same and the answering of any further evidence submissions. It is estimated that three hours of manager’s time (two hours senior managers, 1 hour director level) are taken to check and approve the response to each appeal and examine and compile the POPLA evidence pack for submission. We have 12 dedicated car parking attendants and 10 dedicated members of staff.

• Professional Advice from the BPA - As from time to time we need to take advice and guidance from our appointed advisors to ensure an appeal is dealt with correctly. Which includes the British Parking Association and among others.

• Print, Postage and Stationary costs – These are incurred for any responses to an appeal which often number in 2 and 3 replies and not just a single response.

• DVLA Fees / Processing Costs - These are fixed costs to us at present at £3.50 per DVLA search via our appointed debt recovery/notice processing company.

Therefore contrary to the assumption of many motorists financial losses to the company are directly incurred as soon as a contravention to the terms of parking as advertised is made and a Parking Charge Notice is issued. With regards to justifying the amount of the Parking Charge Notice the considerable costs of dealing with an individual appeal demonstrate that there is a large cost (and therefore loss) to us as a company and we are therefore justified in the amount of Parking Charge Notice to cover these not inconsiderable costs.

Enforcement and the issue of Parking Charge Notice’s is recognised as asset protection and as the principal or lease holder of the site it is incumbent on us and part of our contractual responsibility to manage the facility to the best of our ability in order to either generate the maximum amount of revenue possible for the land owner or lease holder or agent or to keep our clients allocated parking clear of fly parkers and for the actual use of those who are entitled to park, be it an office allocated parking area, a retail park or a persons individual parking space or drive way.
As previously alluded there are a number of costs incurred in the continuous enforcement process that are a necessity in making sure drivers adhere to the parking T&Cs advertised and the chasing up of any outstanding and unpaid Parking Charge Notice’s. These include but are not restricted to;
Parking Charge Notice Amounts and the BPA Code of Practice

At present we comply with the Codes of Practice of British Parking Association as to what the level of a Parking Charge Notice’s can be charged. We choose to charge a sum of £94.00, and offer a reduced amount of £56.40 if paid within 14 days, as this early payment keeps our costs very low.

During October 2012 after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass from £150 to £100. Despite the BPA being unable, due to prevailing legislation, to fix prices at this level, the actions of the Association were welcomed by all stakeholders. In this instance the charge being levied is within the recommendations set out within Clause 19.5 of the BPA Code of Practice.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner or his agent of the site.

Precedent in other cases

Parking Charges are fair and reasonable, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of Parking Eye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007). Further evidence, that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]
In the POPLA evidence pack we have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for not complying with the advertised terms and conditions. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely, and on which the motorist has agreed to be bound by which will become payable if the terms and conditions of parking are not met.

The Parking Contract

We would contend that it is too late now to indicate that they are unhappy with the parking charge – this should have been done at the time of accepting the ‘parking contract’ - if the motorist was unhappy with the contract terms, they should not have remained at the location. The amount of our charge has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on parking and the driver cannot claim that there are any Trading Standards or Consumer Regulation breaches as they have accepted the conditions at the point of opting to park at the location. On accepting the parking conditions we argue that the complainant cannot now seek to effectively renegotiate them or to dismiss them in their entirety. The charge of £94.00 reduced to £56.40 is as advertised and within BPA guidelines.




The POPLA ‘test case’

A genuine pre estimation of loss is just that, a genuine attempt to estimate the costs (and therefore loss) incurred for each Parking Charge Notice issued given the significant costs incurred conducting an appeals process.
The costs above for the parking charge, in this instance was established after consideration of the loss which we incur on the Parking Charge Notice issued and these headings above are as per Mr Henry Michael Greenslade’s, POPLA Adjudicator, ruling on 18 November 2013, Point 43, against Parking Eye Ltd as to what constitutes genuine pre-estimation of loss.

We have reviewed the ‘test case’ conclusions written by the Lead Adjudicator and quote from Mr Greenslade’s determination of what constitutes a genuine pre-estimation of loss:

“Each appeal will always turn of its own facts but both parties should be clear that a genuine pre-estimate of loss need not be a detailed estimate for each particular case. It is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred.
However, it cannot include sums that are really the general business costs of the Operator’s car park services operation.”

“DVLA and associated fees for obtaining keeper details: clerical costs there arising, including stationery and postage; legal and other professional advice; wages and salaries involved in that (which may be relatively substantial), together with national insurance and similar related sums; the fee lost by another vehicle not being able to park in the occupied space (where there is a fee); and even loss of revenue at the retail outlet for which the parking is provided, do if established, fall within a genuine pre-estimation of loss. This list is not exhaustive but strongly indicative of the kind of items that could amount to such a genuine pre-estimate”.

Conclusion

We consider the amount on the Parking Charge Notice as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons.
We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in dealing with an appeal to ensure compliance to the stated terms & conditions and to follow up on any breaches of these identified as

Computersaysno

What a load of hogwash....usual guff from a scumster/PPC./

ScouseIrish

I won my appeal against VCS Liverpool Airport for a 15 second stop on a red line! Used the usual appeal points, and many thanks also to Edenside, Coupon-mad, ColliesCarer and others for their posts on appealing. Decision extract as follows:

Reasons for the Assessor’s Determination


[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]On XX June 2014 the operator issued a parking charge notice to a vehicle with registration mark XXXXXXX. The operator recorded that the vehicle stopped on a roadway where stopping is prohibited.

The appellant made many representations; however, I shall only deal with the ground upon which the appeal is being allowed. Specifically, the appellant submitted that the charge did not represent a genuine pre-estimate of loss. The implication of this submission is that the parking charge is in fact punitive.

The operator rejected the representations made by the appellant. With regard to the issue of genuine pre-estimate of loss, the operator argued that the parking charge was liquidated damages. However, the operator stated that the onus was on the appellant to produce evidence as to why it did not reflect a genuine pre-estimate of loss. Further, the operator stated that if the evidence provided by them was insufficient they should be contacted before the appeal was decided. No break down of how they quantified the pre-estimate of loss was provided.

In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.

Contrary to the assertion of the operator, it is unnecessary for the appellant to explain why they believe the charge does not reflect a genuine pre-estimate of loss. All the appellant needs to do is raise the issue and it is then for the operator to prove that the charge reflects the loss. The operator must demonstrate this with reference to an itemised cost break down of the loss. Moreover, it is for the operator to provide all the relevant evidence to POPLA for this appeal to be decided, rather than for POPLA to contact the operator if their evidence is believed to be insufficient.

Consequently, I must decide this appeal on the evidence provided to me. As stated, the onus is on the operator to provide a break down of the genuine pre-estimate of loss. As they have failed to do so, on this occasion the appeal must be decided in favour of the appellant.

Accordingly, the appeal is allowed.

[/FONT]
[/FONT]Nadesh Karunairetnam


[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Assessor
[/FONT][/FONT]

Mistermeaner

Me vs. VCS for john lennon liverpool airport:

I (we) win! Thanks for help MSE:


Reasons for the Assessor’s Determination
On 27 July 2014, a parking charge notice was applied to a vehicle with
registration mark xxxxx for stopping on a roadway where stopping is
prohibited.
The Operators’s case is that the site’s terms of parking state that the area in
question is a restricted zone and no stopping is permitted at any time. The
Operator says that the Appellant’s vehicle was observed to be stationary on
the airport approach roads, which have been designed as a red route where
stopping is prohibited at any time at 18:18. They have provided photographic
images to demonstrate this point and a genuine pre-estimate report to
support their case.
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 amount of the amount of the parking charge notice is not a genuine
pre-estimate of loss.
The Operator rejected the Appellant’s representations because they state
that by stopping on a roadway, the Appellant has breached the terms and
conditions of the parking contract.They advise that the onus is on the motorist
to provide supportive proof as to why the charge is not appropriate.They
state that they have calculated this sum a genuine pre-estimate of loss as
they incur significant costs in ensuring compliance to the stated terms and
conditions and to follow up any breaches of these identified and these costs
must be read as a predicted charge or estimate prior to the breach. They
submit that some of these costs include parking charge creation and issue,
POPLA case management, costs of maintenance and the full costs incurred
can be estimated in advance of any actual case to be a total of £166.01.
The Operator also cited case law judgments to support their case. They state
that their liquidated damages clause is based on a genuine pre-estimate of
loss which include losses that could conceivably follow a breach, not
necessarily losses which are ‘actual’ or even likely to follow a breach. I find
that the Operator has not adequately shown how they have come to these
costs and they have not included figures representing such cots.
The parking charge must be an estimate of reasonable losses in order to be
enforceable. Accordingly, 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.

Evela

Over the moon when i opened this e-mail this afternoon, can;t thank everyone enough :

Reasons for the Assessor’s Determination

The Operator issued parking charge notice number xxxxxxx arising out of
the presence at Doncaster/ Robin Hood Airport, on 26 July 2014, of a vehicle
with registration mark XXXXXXX for stopping on a roadway where stopping is
prohibited.

It is the Operator’s case that the Appellant’s vehicle stopped on a roadway
where stopping is prohibited and this was a breach of the terms and
conditions of the site 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 pursuing a
breach of the terms and conditions of parking, however, they have not
stated how much they have to pay for each head listed. I find that this is a
general list 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