POPLA Decisions

grinderx

Case won

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

http://forums.moneysavingexpert.com/showpost.php?p=66645027&postcount=23

notparked

02 October 2014

-v-

Highview Parking Limited (Operator)


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

car was recorded exiting the Marsh Street Car Park after a stay of 39 minutes. A
parking charge notice was issued for failing to purchase sufficient parking
time for the full duration of the visit.

The Operator’s case is that the terms and conditions applicable to the site
state that motorists are required to purchase parking time when parking at
the site. The terms and conditions are displayed on signage at the site and as
a result of parking failing to purchase sufficient parking time; the Appellant
was parked in breach of the terms and conditions.

The Appellant’s case is that:

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


b) The Operator has not shown that they have the authority to levy
charges.


c) The signage at the site is unclear and does not comply with the BPA
Code.


d) The ANPR at the site is inaccurate and does not comply with the BPA
Code of Practice.


Considering carefully all the evidence before me, the Appellant has stated
that the charge is not a genuine pre estimate of loss and the onus is then on
the Operator to show that the charge is representative of the losses incurred
as a result of a breach of the terms and conditions. In order for consequential
losses to flow from a breach of the terms and conditions, there must be an
initial loss incurred by the Operator. In this case, the Operator has shown that
there is an initial loss as a tariff is payable at the site.

The Operator has submitted a breakdown of the losses incurred as a result of
the breach and a large percentage of the amount comes from staff costs.
Whilst staff costs may fall within a genuine pre estimate of loss, in this case, the
Operator has included ‘overheads,’ within their staff costs. Overheads are a
general operating cost that would have been incurred even if the motorist
had parked in accordance with the terms and conditions and are therefore
not a cost that can be incurred as a result of a breach of the terms and
conditions. The ‘overheads,’ amount is included with the largest amounts
listed on the breakdown and I am unable to determine the amount of the
figure that is attributable to overheads. As the amount for overheads cannot
be separated from the overall amount, the amounts must be discounted from
the breakdown. In the absence of further explanation as to the overhead
amount being claimed, I am not satisfied that the amount of the charge is
substantially linked to the loss incurred as a result of the breach.

The Operator has indicated that the charge is commercially justified and has
provided case law in in support of this submission. In cases I have seen from
the higher courts, 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

i_been_robbed

hi everyone thanks for all your help, template letters etc

XXXXX XXXXXXX (Appellant)
-v-
Civil Enforcement Limited also t/as Starpark & Creative Car Park & Parksolve & Versatile Parking (Operator)
The Operator issued parking charge notice number 749689XXXX arising out of the presence at Sport Space, Hemel Hempstead, on 25 July 2014, 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
On 25 July 2014, a parking charge notice was applied to a vehicle with registration mark XXXXXXX for failing to register to exceed the 20 minute leeway for pick up/drop off.

It is the Operator’s case is that the car park is 3 hours maximum stay for Sport Space visitors who register on the touch screens in reception, with a 20 minute leeway for drop off/ pick up as stated on the signage. The Operator says that the Appellant’s vehicle was parked for 42 minutes without registering his vehicle to exceed the 20 minute leeway. They have attached a genuine pre-estimate report to support their submissions.
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 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 failing to register to exceed the 20 minute leeway for pick up/drop off. The Operator states that the amount of the charge is a contractual term that is calculated upon a genuine pre-estimate of loss and is for the sum due by the Appellant in consideration for the Operator making parking facilities available to them. They advise that the wording of the sign indicate that parking is free for a period shorter than 3 hours for registered vehicles and £100 for unregistered vehicles that exceed the 20 minute leeway for pick up/drop off.
The Operator states that they have calculated this sum upon 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. They state that some of these costs include loss of revenue and attached business/businesses, loss from another vehicle parking and fees paid to DVLA, commercial justification and administrative expenses. The Operator also refers to some precedent cases to support their representations. I find that some of these costs qualify as being genuine pre-estimate of loss such as loss of revenue but other costs do not fall under the definition. Furthermore, these costs were not incurred as a direct result of the alleged breach, but would have been incurred regardless of whether the Appellant breached the terms and conditions of the parking site. I am therefore, not satisfied that the Operator has proved that the parking charge represents a genuine pre-estimate of loss.

ryan3067

I wrote to High View Parking on behalf of my sister regarding a charge notice received on a car park in Hanley, stoke on trent. After they refused to back down I used the template letter posted on here and took my appeal to POPLA and today I got this response.

"The appellant made a number of representations, but I need only deal with the one upon which I am allowing the appeal, which is that the operator lacks authority from the landowner for their activities.
The operator rejected these representations, stating on the authority issue that they had authority from the landowner for their activities.
Considering the evidence before me, I find that the operator has produced what purports to be a witness statement confirming that the operator has the authority of the landowner for their activities in issuing and enforcing parking charge notices in respect of the land. However, the statement is contradictory in that it states both that Paul Walters is the landowner and that he is acting for and on behalf of Urban Space Parking. This means that I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid."

Padaxes

PPC: Kernow Parking Solutions.
Location: Mousehole Car Park
Decision: Appeal Upheld.
Assessor: Shehla Pirwany

"Considering carefully all the evidence before me, the Appellant has stated
that the charge is not a genuine pre estimate of loss and the onus is then on
the Operator to show that the charge is representative of the losses incurred
as a result of a breach of the terms and conditions. In order for consequential
losses to flow from a breach of the terms and conditions, there must be an
initial loss incurred by the Operator. In this case, the Operator has shown that
there is an initial loss as the car park is a pay and display car park.
The Operator has submitted a breakdown of the losses incurred as a result of
the breach and a large percentage of the amount comes from staff costs.
Whilst staff costs may fall within a genuine pre estimate of loss, in this case, the
Operator has included management costs. The management costs are for
quality control and evidence gathering. The largest amount of the
breakdown comes from management to check and approve the response to
the appeal and in the absence of further explanation, I am not satisfied that
checks on the work of other staff members are amounts that are substantially
linked to the loss incurred. On balance, I am not satisfied that the Operator
has sufficiently shown that the items referred to on the breakdown are
substantially linked to the loss incurred as a result of a breach of the terms and
conditions. As a result, I need not decide any other issues raised by the
Appellant.
Accordingly, this appeal must be allowed. "

Coupon-mad

ryan3067 wrote: »

I wrote to High View Parking on behalf of my sister regarding a charge notice received on a car park in Hanley, stoke on trent. After they refused to back down I used the template letter posted on here and took my appeal to POPLA and today I got this response.

"The appellant made a number of representations, but I need only deal with the one upon which I am allowing the appeal, which is that the operator lacks authority from the landowner for their activities.
The operator rejected these representations, stating on the authority issue that they had authority from the landowner for their activities.
Considering the evidence before me, I find that the operator has produced what purports to be a witness statement confirming that the operator has the authority of the landowner for their activities in issuing and enforcing parking charge notices in respect of the land. However, the statement is contradictory in that it states both that Paul Walters is the landowner and that he is acting for and on behalf of Urban Space Parking. This means that I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid."

Thanks for posting that one - it's useful and ties in with the case Devere lost in Court yesterday. Could you let us know please, so other Newbies can cite this decision:

- the date of the decision
- the Assessor's name
- the POPLA 10 digit code (not it's all over, it is safe to tell).

Thanks in advance,

smiledotcom

I'm so chuffed!

This is even better than a POPLA success!

CP Plus withdrew my "case" (windscreen PCN issued for "causing obstruction" - in my NHS, England - staff car park) - almost as soon as they received the details of my case from POPLA.

They caved in before the case was even heard by POPLA!

What follows below is a copy of my POPLA appeal.

In fact, not all of these sections were relevant to my circumstances. For instance, i couldn't really appeal on the grounds of "lack of signage" because CP Plus had taken photos of their adequate signage! Still, taking the advice from others on these threads, I threw those grounds for appeal in for good measure anyway.

Also, within this appeal I stated that I was not driving. In fact I was - I had just cut and pasted that bit from someone else's successful POPLA appeal wording. I figured I ought to keep that bit in because it was a staff car park where I had used my own permit and scratch card so I was traceable in a way! I knew they had no proof of who was driving that day though.

I'll be really happy if others in similar PCN instances can draw on my experience, adapting this template slightly to suit their own circumstances (such as name of PCN issuer, car reg no, PCN number) and get the outcome that they want too.

For me the issue was greater than the £20 "fine", it was the principle of the matter. How I hate to be embezzled out of my hard earned cash, especially in a staff car park that I have paid to park in!

I'm really grateful to others on this thread for their time and advice in relation to my case Thank you!


************************************************** ******

Dear POPLA Assessor,

I am the registered keeper of xxxxxxx and I wish to appeal the Car Parking PCN xxxxxxxx on the following basis:
1. The Charge is not a genuine pre-estimate of loss
2. CP Plus have formed no contract with the driver (lack of signage, no consideration/acceptance).
3. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.
4. Lack of standing/authority from landowner
5. Unreasonable/Unfair Contract Terms. Explained below:

1. The Charge is not a genuine pre-estimate of loss.
The parking charge is not a genuine pre-estimate of loss. A valid permit and scratch card had been purchased and both were clearly on display on the day of the incident. This permit allows parking in any designated staff car park. Photographic evidence supplied by CPP confirms the location as the staff parking area. The parking charge should 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. In this instance, unpaid charges are nil as a permit and scratch card for the vehicle was purchased well before the date of issue of the Parking Charge Notice (PCN) and was in force at the time. Any breakdown purporting to be a genuine pre-estimate of loss cannot include general business expenses because these would remain the same whether or not there were any alleged breaches of contract by drivers. CP Plus has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge. The BPA Code of Practice states: “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.“ and “19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “ The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. PTL cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate): The British Parking Association Code of Practice uses the word 'MUST': "19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.'' Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that: ''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.'' I put CP Plus to strict proof that that their charge represents a genuine pre-estimate of loss. To date CP Plus have not provided me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business 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 in this pre-estimate of loss.

2. CPP have no contract with the driver of the vehicle; no consideration nor acceptance has flowed between the parties so the elements of a contract do not exist. The issue of a staff parking permit and parking privileges is strictly between the employer and staff member and is the only extant contract relating to parking this car on this site by this driver. Despite what they may say, CPP cannot re-offer the same parking space on different terms and allege a charge is due when there has been no loss suffered and the driver is permitted to park there. CPP signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.

3. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on two grounds: (a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at a specified timeon the day in question. (b) The Notice to Keeper does not identify the 'creditor'. POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. As I was not the driver myself, there is no case against me at all so it is, at best, surprising and irksome that CPP are pursuing this matter and wasting my time. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.

4. Lack of standing/authority from landowner. CP Plus has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put CP Plus to strict proof of the contract terms with the actual landowner (not a lessee or agent). CP Plus 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 showing that CP Plus are entitled to pursue these charges in their own right in the courts. I require CP Plus 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 BPA CoP 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 BPA CoP, 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.

5. Unreasonable/Unfair Contract Terms. I would assert that the charge being claimed by CP Plus is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...'' Test of fairness: ''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers. 5.1 Unfair terms are not enforceable against the consumer. 9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.'' The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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 as described in point 2 above, is far from 'transparent'. Schedule 2 of the 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 barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. 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 for POPLA to inform CP Plus that the charge is dismissed.

Yours faithfully,

cymru7

Another win!

POPLA Decision

The operator issued parking charge notice number xxxxxxx arising out of
the presence at Birmingham International Airport, on xx July 2014, of a vehicle with registration mark xxxxxxx. The operator recorded that the vehicle was dropping off/ picking up outside of a designated parking area.

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 charge is a genuine pre-
estimate of loss. The operator has provided a breakdown of the losses they have incurred as a result of the appellant’s breach. I find that the operator has not shown that by dropping off/ picking up outside of a designated parking area, the appellant at that point caused a loss to themselves or the landowner. The operator has only shown that they incurred the loss as a result of the appeals process after issuing the parking charge notice. In order for a charge to be a genuine pre-estimate of loss, the operator has to show that they at first have incurred an initial loss.

Considering carefully, all the evidence before me, I find that as the operator
has not shown that they have incurred an initial loss as a result of the appellant dropping off/ picking up outside of a designated parking area, the charge sought is not a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

bod1467

Name of PPC and name of Assessor please?

Redx

#1450 was APCOA , Birmingham

and yet another win here

https://forums.moneysavingexpert.com/discussion/5017415

Harlesden Plaza 'LCP' = London Car Parks' - Burger King

Well finally had my reply from my POPLA appeal today almost a month later than they said it would be considered and they have allowed my appeal based on GPEOL.

Thanks for all the help guys!