POPLA Decisions

Aaron_Aadvark

Decision: Allowed

Assessor: Shona Watson

Date: January 2013

Reported: http://forums.pepipoo.com/lofiversion/index.php/t76355.html

post #5

Successful Grounds: Validity of permit (PPC did not respond in time)

PPC: County Parking Enforcement Agency




"Reasons for the Assessor’s Determination.

The Appellant submits that he is not liable because he displayed a permit and did not know that it was only valid for Phase 1 Car Park, as none of the signs state that certain permits are only valid for certain areas, and the differing areas are not marked either.
The Operator has not produced a copy of the parking charge notice, or put forward any evidence to show that the Appellant did not have a valid permit or even that one is required at the unspecified location.
Accordingly, this appeal must be allowed."

Aaron_Aadvark

Decision: Allowed

Assessor: Unknown

Date: March 2013

Reported: http://forums.pepipoo.com/index.php?showtopic=77217&pid=801006&mode=threaded&start=#entry801006

post #23

Successful Grounds: Signs meaning unclear.

PPC: TSR UK Parking Management

"I must find as a fact that, on this particular occasion, the meaning of the sign that states “No parking” and “loading & unloading at all times” is unclear. It may mean that no parking or loading is permitted, or that parking is not permitted but loading is. I must find as a fact that on this occasion the sign
indicated that loading was permitted. In addition, the other signs stating “permit holders only” do not state that numbered bays are designated to tenants of the site, and do not mention loading or unloading or state that vehicles who are loading or unloading must also display a permit.

Having carefully considered the evidence before me, I must find as a fact that, on this particular occasion, the terms and conditions are unclear, and therefore the Operator has not shown that the driver of the vehicle, who was loading, was required to display a permit"

trisontana

This one is from a railway station car-park:-


http://forums.pepipoo.com/index.php?showtopic=77951&hl=


The Operator’s case is that the terms and conditions for parking are clearly displayed throughout the site and state that a valid ticket must be displayed, and that a failure to comply with the conditions means that a parking charge notice will be issued. Copies of the conditions have been produced.

The Appellant made representations, submitting that recent court judgments have held that the operators need to have a sufficient interest in the land in order to have authority to issue parking charge notices. The Appellant states that the Operator has failed to provide evidence of this authority, indicating that he believes the Operator does not have authority to enforce parking at the site.

The Operator rejected the representations, because no valid ticket or voucher was displayed in the vehicle on the date in question. The Operator submits that they manage the car park on behalf of Southeastern Rail and therefore have authority to enforce parking at the site. The Operator also submits that the terms and conditions clearly state that they are acting as an agent for Southeastern Rail.

The case of Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC) concerned Value Added Tax but, In Paragraph 46 of the Decision, it states:

VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action.

This case has now been considered by the Court of Appeal ([2013] EWCA Civ 186) where, in allowing the appeal of VCS, the Court held:

In the present case the contract between VCS and the landowner gives VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, I do not consider that it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge I see no impediment to regarding that as damages for trespass.

The material events occurred before the coming into force of Section 54 of the Protection of Freedoms Act 2012. However, it is clear that, subject to the terms of the contract between them and the landowner, an operator may issue a parking charge notice to a vehicle for a breach of conditions of parking.

Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner (if the Operator is not the landowner) to manage and enforce parking. This is set out in the BPA Code of Practice. Therefore the Operator is likely to have authority to issue parking charge notices. However, as with any issue, if the point is specially raised by an appellant, then the operator should address it by producing such evidence as they believe refutes a submission that they have no authority. A copy of the authority the Operator submits they have from the landowner has not been produced.

Therefore, 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 they have authority from the landowner to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifts to the Operator to prove that they do. The Operator has not discharged this burden.

Accordingly, this appeal must be allowed.

Shona Watson

Assessor

CKhalvashi

Decision Allowed

Assessor:Unknown

Date: 11 March 2013

Successful Grounds:

The vehicle XXXX XXX had been moved from the bay by a parked vehicle where the handbrake was not secured. We feel it appropriate that the appeal is allowed on this basis.

PPC: NCP

A bit of a strange one, I know, but there we are!

CK

Coupon-mad

This one from pepipoo:


Decision: Allowed

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

The Operator issued parking charge notice number XXX/XXX arising out of the presence at Rheidol Retail Park, on XX 2012, of a vehicle with registration mark XXX XXX.

The Appellant appealed against liability for the parking charge.

The Assessor considered the evidence of both parties and 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 December 2012 the Operator’s automatic number plate recognition system (‘ANPR’) observed a XXX with the registration mark XXX XXX at Rheidol Retail Park. On XX December 2012 the Operator issued a parking charge notice (‘PCN’).

The Operator submits that it was an adequately advertised condition of parking at the site that parking was free for a maximum of 2 hours, no return within 1 hour. The terms advised that failure to comply may lead to the issuing of a PCN. The Operator’s ANPR system observed the Appellant’s vehicle enter the site at 09:59 and exit at 12:10, a stay of 2 hours and 11 minutes. Accordingly, the vehicle had overstayed by 11 minutes and the Operator issued a PCN for breach of the aforementioned condition. The Operator’s evidence includes copies of site signs and their locations throughout the site.

The Appellant submits that she is not liable for the parking charge because:

1. The Operator has failed to adequately identify the creditor to whom the parking charge is due as required by the Protection of Freedoms Act;

2. The Notice to Keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on XX December 2012 and the Notice to Keeper was received 16 days later on XX January 2013;

3. The Operator does not have authority to contract with the Appellant at the site in question. The Appellant requires proof of ownership of the land or any contract from the land owner providing such authority;

4. The Operator did not specify the reasonable period permitted for the Appellant to leave the land after the end of the contract prior to taking enforcement action;

5. The Appellant’s vehicle was not ‘parked’ in excess of the maximum stay period within the meaning of the terms and conditions;

6. The parking charge exceeded the appropriate amount.


Taking into consideration all the evidence before me, I am not satisfied that the Operator has proven this breach for the following reasons.

In Paragraph 46 of the Decision in VCS v HMRC it states:

VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action

Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if itself is not the landowner, as to their role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an appellant in an appeal, then the operator should address it by producing such evidence as they believe refutes a submission that they have no authority.

In response to such a point, the Operator stated that “we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).” The Appellant had requested that a copy of the contract between the land owner and the Operator be provided. The Operator has not provided a copy of this contract or any other proof tantamount to the same. I therefore find that the Operator has failed on this occasion to adequately rebut the Appellant’s submission that it does not have the necessary authority to enforce the parking charge.

I have allowed the appeal on this ground and therefore do not need to visit the Appellant’s remaining grounds of appeal.

Taking these matters together the PCN was not properly issued.

The appeal is allowed.

Matthew Shaw
Assessor

me,myself_and_I

:j:rotfl::j:rotfl::j:rotfl::j:rotfl::j:rotfl::j:rotfl::j





XX April 2013

Reference: xxxxxxxxxx

always quote in any communication with POPLA








XXXXXXXXX (Appellant)

-v-

ParkingEye Ltd (Operator)









The Operator issued parking charge notice number XXXXXX
arising out of the presence at Fleming Way Retail Park, on XX
December 2012, 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





XXXXXXXX the Operator issued a parking charge notice because
on XXXXXXXXX the vehicle with registration mark XXXXXXX was
recorded via automatic number plate recognition as having stayed in the
Fleming Way Retail Park Car Park for 2 hours 10 minutes, which was longer
than the maximum stay of 2 hours.



The Operator’s case is that the terms and conditions are displayed at the
entrance and throughout the site and state that there is a 2 hour maximum
stay. Copies of the conditions have been produced. They also state that a
failure to comply with the conditions means that a parking charge notice will
be issued.



The Appellant made various representations, stating that the amount of the
charge is disproportionate to the loss caused, and also that the Operator has
no authority to issue parking charge notices on behalf of the landowner.



The Operator rejected the representations. It is noted that the Operator fails
to address the Appellant’s submissions or provide any reasons for rejection.
The Operator produced images that appear to show the vehicle entering the
site XXXXX December 2012 and exiting at XXXX the same day. The
Operator submits that they have authority to issue parking charge notices.
However they have not responded to the Appellant’s submission that the
charge is disproportionate 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 the
amount of the charge is disproportionate, the burden of proof shifts to the
Operator to prove otherwise. The Operator has not discharged this burden.



Accordingly, this appeal must be allowed.





Shona Watson

Assessor

trisontana

So Shona has actually decided that the charge was a penalty. That's new, she usually goes for the lack of contract angle. Things are looking up.

Sirdan

trisontana wrote: »

So Shona has actually decided that the charge was a penalty. That's new, she usually goes for the lack of contract angle. Things are looking up.

Well not quite, what she has ruled is that the PPC and/or landowner have failed to provide ANY evidence that the charge is a genuine pre estimate of loss, which it has to be to be valid in contract law.
POPLA have quite nicely done the Small Claims Court's job for them here , as that is what a properly minded DJ would rule.

The reason why they didn't supply any evidence ????

Simple, there is none, as these charges are most certainly a penalty and moreover a penalty that turns a profit for the PPC.

Look forward to many many more wins on this basis as PPCs struggle to justify how the alleged breach incurs a loss anywhere near the inflated amount they attempt to extort !:rotfl:

nigelbb

It appears that any time the PPC fails to answer or provide evidence then POPLA rules against them. It's quite logical if the appellant says "This is a penalty" or "The PPC does not have the right to issue parking charges" & then the PPC doesn't reply or offer any evidence that it's not a penalty or that they do in fact have a contract with the landowner then by default it must be a win for the driver.

Any PPC will have a very hard time indeed trying to justify that a £70/£100 charge for an overstay in a free car park is not a penalty.

trisontana

PE have already shot themselves in the foot regarding so-called losses. In a letter they have sent out to at least a couple of people, they have included such things as staff wages, rent, and day-to-day running expenses as part of these "losses".

That argument was shot down in the famous VCS S!!!!horpe case where the PPC tried to include the cost of the parking monkey's uniform as part of the loss.