POPLA Decisions

Stroma

trisontana wrote: »

Today I emailed the BPA Ltd. asking them to comment on PE's standard letter which tries to justify a"pre-estimate of loss by including :-
erection and maintenance of site signage. Installation, maintenance and monitoring of the ANPR system. Employment of office-based admin staff. Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO. And general costs including stationery, postage etc.

I await their comments

They will ignore you , like they do on awkward questions on twitter

bazster

ParkingEye loses again: http://forums.pepipoo.com/index.php?showtopic=81562

Coupon-mad

bazster wrote: »

ParkingEye loses again: http://forums.pepipoo.com/index.php?showtopic=81562

That looks to be the same 'punitive' case as in post #166 above.

Custard_Pie

Another Parking Eye loss at PoPLA based upon the charge not being a genuine pre-estimate of loss flowing from breach.

Seems to be the way the PoPLA decisions are going and should be a staple for a PoPLA defense, as long as the appellant does not admit to seeing the signage, thus admitting the contract. Otherwise, this could be construed to be an acceptance of the terms.

http://forums.pepipoo.com/index.php?showtopic=81576

Stroma

An appeal on mitigation that was refused

Reasons for the Assessor’s Determination
The Operator issued parking charge notice number xxxxxxx arising out of the presence at Aylesbury Shopping Park, on xx March 2013, of a vehicle with registration mark ********* for parking without clearly display a valid pay and display ticket.
It is the Operator’s case that the Appellant’s vehicle was parked without clearly displaying a valid pay and display ticket and this was in breach of the terms and conditions of parking as set out on signage at the car park.
It is the Appellant’s case that he took his children to Frankie and Benny’s for dinner and as it was the first time he had been to the shopping park, he was not aware of the parking restrictions. The Appellant states that he did not see the signs as they were too high and further that he did not stay beyond two hours. The Appellant also states that as he had his children with him, he was looking down at them rather than looking up.
I have looked at all of the evidence provided and find that the signage at the car park was clear and they were not too high. The signage made the terms and conditions of parking clear and one of the terms included displaying a valid pay and display ticket. The onus is on the Appellant to ensure compliance with the terms and conditions of parking. I note that he had children with him and was looking down; however, this is not a valid ground of appeal. I find that by not displaying a valid pay and display ticket the Appellant breached the terms and conditions of parking.
Accordingly, this appeal must be refused.

Umkomaas

Further reinforces the point that mitigation is an unmitigated disaster as far as a POPLA appeal is concerned.

Custard_Pie

Will be interesting to see the PPC response given that it's been proven that PoPLA are coaching them on how to win at their appeal hearings.

Why bother with PoPLA at all, apart from trying to appease certain government departments, if it's such a farce?

Umkomaas

From Pepipoo this morning. Interesting take by Shona that PE was unable to prove PCN was not a PENALTY!

Hello all,

A good news story for you Pepipoo folk!

In March this year, I received not one, but two of ParkingEye's lovely invoices. I may sound a bit cavalier about it now, but at the time I was a spinning top of confusion and cross-forum begging and convinced they were going to send the boys 'round to duff up my Nan.

Basically? Two overstays in the same free retail park; by 16 and 17 minutes respectively.

To cut a very long story short, I shamelessly begged for help on the forum (original post deleted in a paranoia-fuelled fit of 'OMIGOD what if they see my posts and print them out for my day in court?') and it was duly received (more on that in a bit).

Appeals sent to ParkingEye, both rejected and POPLA codes received. I was helped with an appeal to POPLA for both PCNs and duly sent them.

Cue a few months, and I receive near-enough identical POPLA letters stating the following:

- The Appellant made various representations, submitting that the amount of the parking charge fails to meet the standards set out in paragraph 19 of the British Parking Association Code of Practice and The Unfair Terms in Consumer Contracts Regulations 1999, indicating that it is unreasonable and does not reflect a genuine pre-estimate of loss. The Appellant produced a letter from the Operator, which appears to be an attempt to deal with this issue. However the details of the recipient, the date and the parking charge notice reference have been blanked out and therefore it is unclear whether or not it relates to the case. The Operator has not produced a similar letter. Therefore I have not considered it as part of my decision.

- The Operator rejected the representations, as stated in the notice of rejection they sent, and produced a copy of their responses to some frequently asked questions. The Operator quotes two cases, stating that these held that their charges should not be viewed as penalties, and that they firmly believe that their charges are fair and reasonable. The Operator has not produced any evidence to show that at this site and on this occasion, the parking charge was proportionate to the loss caused.

- Having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that the parking charge does not amount to a penalty. As the Appellant submits that it exceeds the appropriate amount in relation to the British Parking Association Code and The Unfair Terms in Consumer Contracts Regulations 1999, the burden of proof shifts to the Operator to prove otherwise. The Operator has not discharged this burden. Accordingly, this appeal must be allowed.

On both occasions, the assessor was Shona Watson.

So! It can be done (twice, in some cases...ahem). But without the incredible assistance and patience of the members of the forum - special thanks to both SchoolRunMum and particularly Broadsword for their time, advice and restraint in not hunting me down and caving my head in due to my occasional panic-induced stupidity - I could not have done it and would have no doubt have been £200 worse off, and very bitter.

Don't let the bullies take your lunch money - all the information is in the forums.

Thanks once again!

MD.

Umkomaas

Well well well,

A kick in the teeth for Parking Eye no doubt...

bus_driver wins at POPLA appeal stage. Many thanks to everyone who contributed - who wants to see a redacted copy after I've read the full shebang?

PARKING ON PRIVATE LAND APPEALS
PO Box 70748 London EC1P 1SN
0845 207 7700
enquiries@popla.org.uk
https://www.popla.org.uk

Parking on Private Land Appeals is administered by the Transport and Environment Committee of London Councils
Calls to Parking on Private Land Appeals may be recorded

31 July 2013

Reference: xxxxxxxxxx
always quote in any communication with POPLA

bus_driver (Appellant)
-v-
ParkingEye Ltd (Operator)

The Operator issued parking charge notice number xxxxxx/xxxxxx arising out of the presence at St Helens Retail Car Park , on xx March 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.

Reasons for the Assessor’s Determination

On xx March 2013, a vehicle with registration mark xxxxxxx , was observed parked in St Helens Retail Park Car Park, exceeding the maximum permitted time by x hour and xx minutes. A parking charge notice was issued.
The operator’s case is that the terms and conditions in the car park are clearly stipulated on the 46 warning signs, at the entrance of the car park and throughout the site. A copy of the signage and a copy of the PCN have been produced. The sign states that it is a 2 hours maximum free stay, customers only car park and that customers must pay the applicable tariffs to park for longer or a parking charge notice will be issued. A copy of the signage and a copy of the PCN have been produced.
The appellant says that the operator does not have authority to enter into contracts and issue PCN’s. He states that the amount of the charge is disproportionate to the loss incurred by the operator, and it is a penalty and therefore, it is void and unenforceable. In addition, he submits that the charge is not a genuine pre estimate of loss because it does not reflect the true loss suffered by the operator. The appellant states that the charge is an unreasonable indemnity clause.
The operator rejected the representations, because the terms and conditions are clearly displayed, and therefore the appellant is deemed to have agreed to them by parking his vehicle at the site. By exceeding the permitted free stay, the appellant has breached the terms of the car park and a parking charge notice is payable. The operator state that they do have written authority from the landowner to manage the site and issue PCNs and they have provided a witness statement which demonstrates this point. In relation to the issue of genuine pre estimate of loss, the operator says that they do not issue or collect penalty fines or excess charges which are relevant to on-street or civil enforcement area. Furthermore, they say that the PCN is fair and reasonable and is in line with the BPA’s guidelines and this matter has been tested in the Somerfield case, where it was found that £75 to be reasonable. The operator adds that they do have authority to issue and enforce PCNs for contractual breaches and further evidence, that their PCNs can not be viewed as penalties, can be found in the decision of the case of Parking Eye v Somerfield. The operator also adds that the offer to reduce the charge for the first 14 days is not indicative of the fact that it should be considered as a penalty. The operator says that HHJ Hegarty QC, states that there are many contractual situations where a discount is offered for the early settlement of a contractual claim.

The Operator has submitted that its charges are in line with the BPA Code of Practice. The BPA code states that Operators must justify in advance any parking charge over £100. However, it does not automatically follow that any charge which is £100 or under is, therefore, justified. Where the issue is raised by the Appellant, it is for the Operator to address it.
The Operator has submitted that its charges have been held to be enforceable in previous cases; however, the Operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre-estimate of the loss caused in every car park.
The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence in order to tip the balance in its favour.

In this case the Operator has not provided any evidence as to why this charge in a genuine pre-estimate of loss. I am not minded to accept that it is sufficient to simply list the names of previous cases without applying them to this case.
Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

Aurela Qerimi

Assessor

Custard_Pie

Umkomaas wrote: »

Well well well,

A kick in the teeth for Parking Eye no doubt...

bus_driver wins at POPLA appeal stage. Many thanks to everyone who contributed - who wants to see a redacted copy after I've read the full shebang?

PARKING ON PRIVATE LAND APPEALS
PO Box 70748 London EC1P 1SN
0845 207 7700
enquiries@popla.org.uk
https://www.popla.org.uk

Parking on Private Land Appeals is administered by the Transport and Environment Committee of London Councils
Calls to Parking on Private Land Appeals may be recorded

31 July 2013

Reference: xxxxxxxxxx
always quote in any communication with POPLA

bus_driver (Appellant)
-v-
ParkingEye Ltd (Operator)

The Operator issued parking charge notice number xxxxxx/xxxxxx arising out of the presence at St Helens Retail Car Park , on xx March 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.

Reasons for the Assessor’s Determination

On xx March 2013, a vehicle with registration mark xxxxxxx , was observed parked in St Helens Retail Park Car Park, exceeding the maximum permitted time by x hour and xx minutes. A parking charge notice was issued.
The operator’s case is that the terms and conditions in the car park are clearly stipulated on the 46 warning signs, at the entrance of the car park and throughout the site. A copy of the signage and a copy of the PCN have been produced. The sign states that it is a 2 hours maximum free stay, customers only car park and that customers must pay the applicable tariffs to park for longer or a parking charge notice will be issued. A copy of the signage and a copy of the PCN have been produced.
The appellant says that the operator does not have authority to enter into contracts and issue PCN’s. He states that the amount of the charge is disproportionate to the loss incurred by the operator, and it is a penalty and therefore, it is void and unenforceable. In addition, he submits that the charge is not a genuine pre estimate of loss because it does not reflect the true loss suffered by the operator. The appellant states that the charge is an unreasonable indemnity clause.
The operator rejected the representations, because the terms and conditions are clearly displayed, and therefore the appellant is deemed to have agreed to them by parking his vehicle at the site. By exceeding the permitted free stay, the appellant has breached the terms of the car park and a parking charge notice is payable. The operator state that they do have written authority from the landowner to manage the site and issue PCNs and they have provided a witness statement which demonstrates this point. In relation to the issue of genuine pre estimate of loss, the operator says that they do not issue or collect penalty fines or excess charges which are relevant to on-street or civil enforcement area. Furthermore, they say that the PCN is fair and reasonable and is in line with the BPA’s guidelines and this matter has been tested in the Somerfield case, where it was found that £75 to be reasonable. The operator adds that they do have authority to issue and enforce PCNs for contractual breaches and further evidence, that their PCNs can not be viewed as penalties, can be found in the decision of the case of Parking Eye v Somerfield. The operator also adds that the offer to reduce the charge for the first 14 days is not indicative of the fact that it should be considered as a penalty. The operator says that HHJ Hegarty QC, states that there are many contractual situations where a discount is offered for the early settlement of a contractual claim.

The Operator has submitted that its charges are in line with the BPA Code of Practice. The BPA code states that Operators must justify in advance any parking charge over £100. However, it does not automatically follow that any charge which is £100 or under is, therefore, justified. Where the issue is raised by the Appellant, it is for the Operator to address it.
The Operator has submitted that its charges have been held to be enforceable in previous cases; however, the Operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre-estimate of the loss caused in every car park.
The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence in order to tip the balance in its favour.

In this case the Operator has not provided any evidence as to why this charge in a genuine pre-estimate of loss. I am not minded to accept that it is sufficient to simply list the names of previous cases without applying them to this case.
Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

Aurela Qerimi

Assessor

And yet again, PoPLA clearly spell out to The PPC where they are going wrong, almost spoon feeding them for future cases.