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POPLA Decisions
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Yet another :TPopla appeal finally heard nearly two months after appeal scheduled.
The full thread is here http://forums.pepipoo.com/index.php?showtopic=78197
Here's a copy of the judgement.
The Operator issued parking charge notice number xxxxxx/xxxx arising out
of the presence at xxxxxxxxx, on xxxxxxx, of a
vehicle with registration mark xxxxxxx for not purchasing the appropriate
parking time and remaining at the car park for longer than permitted.
It is the Operator’s case that the Appellant’s vehicle was parked for longer
than permitted or did not purchase the appropriate parking time and this was
a breach of the terms and conditions of parking as set out on signage at the
site.
The Appellant has made various submissions but I only propose to deal with
the one submission that I am allowing this appeal on which is the genuine preestimate
of loss. The Appellant submits that no loss was suffered by the
Operator and the parking charge fails to reflect the actual loss suffered as a
result of the breach.
The signage produced by the Operator states that a failure to comply with
the terms and conditions will lead to a charge of £85 being issued. This
wording seems to indicate that the charge represents damages for a breach
of the parking contract and therefore the charge must be a genuine preestimate
of loss.
As the Appellant has raised the issue of the charge not being a genuine preestimate
of loss, the onus is on the Operator to prove that it is. The Operator
has stated that the parking charge is fair and reasonable according to BPA
guidelines but has made no attempt to address what loss was suffered 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 was a genuine pre-estimate of loss.
Accordingly, this appeal must be allowed.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Have a read of this from Pepipoo. It gets curiouser and curiouser
http://forums.pepipoo.com/index.php?showtopic=82136
And The Parking Prankster has got hold of this debacle here:
http://parking-prankster.blogspot.co.uk/search?updated-min=2013-01-01T00:00:00-08:00&updated-max=2014-01-01T00:00:00-08:00&max-results=8Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
I have received an unsuccessful popla appeal...great! Off to court I go, I paid for parking, machine didnt give me a ticket and wouldnt return my money, I would have paid again or tried to call but the only number I saw by paymachine was automated payline and same thing happened to several shoppers...so deny it all they like their machine WAS faulty!!
So simple case of my word against theirs...whats my chances in court u reckon? below is popla appeal email I received.
Xxxxx Xxxxx (Appellant) -v- ParkingEye Ltd (Operator)
The Operator issued parking charge notice number xxxxxxx/xxxxxx arising out of the presence at Crown Wharf Shopping Park, on xx xxx 2013, of a vehicle with registration mark xxxx xxx.
The Appellant appealed against liability for the parking charge.
The Assessor considered the evidence of both parties and determined that the appeal be refused.
The Assessor’s reasons are as set out.
In order to avoid any further action by the operator, payment of the £85 parking charge should be made within 14 days.
Details of how to pay will appear on previous correspondence from the operator.
xxxxxxxxx x xx xxx 2013
Reasons for the Assessor’s Determination
The Operator issued parking charge notice number xxxxx/xxxxxx arising out of the presence at Crown Wharf Shopping Park, on xx xxx 2013, of a vehicle with registration mark xxxx xxx for not purchasing the appropriate parking time or remaining at the car park for longer than permitted.
It is the Operator’s case that the Appellant’s vehicle was parked without paying for the appropriate parking time or they remained for longer than permitted and this was a breach of the terms and conditions of parking as set out on signage at the site.
The Appellant submits that a ticket was paid for but no ticket came out of the machine.
I have considered all of the evidence before me and find that the terms and conditions of parking made it clear that a valid ticket must be purchased and displayed. The Appellant states that she did not receive a ticket having paid for one; if this was the case she should have called the Operator’s telephone number on the signs to notify them of this. The Operator has provided a whitelist lookup to show that a ticket was not paid for by the Appellant.
I find that by not displaying a valid ticket the Appellant breached the terms and conditions of parking. The onus is on the Appellant to ensure compliance with the terms and conditions of parking and unfortunately on this occasion she did not do so.
Accordingly, this appeal must be refused.0 -
I have received an unsuccessful popla appeal...great! Off to court I go, I paid for parking, machine didnt give me a ticket and wouldnt return my money, I would have paid again or tried to call but the only number I saw by paymachine was automated payline and same thing happened to several shoppers...so deny it all they like their machine WAS faulty!!
So simple case of my word against theirs...whats my chances in court u reckon? below is popla appeal email I received.
Tracey Iliffe (Appellant) -v- ParkingEye Ltd (Operator)
The Operator issued parking charge notice number 270844/772457 arising out of the presence at Crown Wharf Shopping Park, on 12 April 2013, of a vehicle with registration mark SD04 FZU.
The Appellant appealed against liability for the parking charge.
The Assessor considered the evidence of both parties and determined that the appeal be refused.
The Assessor’s reasons are as set out.
In order to avoid any further action by the operator, payment of the £85 parking charge should be made within 14 days.
Details of how to pay will appear on previous correspondence from the operator.
6061293039 2 07 August 2013
Reasons for the Assessor’s Determination
The Operator issued parking charge notice number 270844/772457 arising out of the presence at Crown Wharf Shopping Park, on 12 April 2013, of a vehicle with registration mark SD04 FZU for not purchasing the appropriate parking time or remaining at the car park for longer than permitted.
It is the Operator’s case that the Appellant’s vehicle was parked without paying for the appropriate parking time or they remained for longer than permitted and this was a breach of the terms and conditions of parking as set out on signage at the site.
The Appellant submits that a ticket was paid for but no ticket came out of the machine.
I have considered all of the evidence before me and find that the terms and conditions of parking made it clear that a valid ticket must be purchased and displayed. The Appellant states that she did not receive a ticket having paid for one; if this was the case she should have called the Operator’s telephone number on the signs to notify them of this. The Operator has provided a whitelist lookup to show that a ticket was not paid for by the Appellant.
I find that by not displaying a valid ticket the Appellant breached the terms and conditions of parking. The onus is on the Appellant to ensure compliance with the terms and conditions of parking and unfortunately on this occasion she did not do so.
Accordingly, this appeal must be refused.
Please raise in a separate thread. It's a classic case of a PoPLA appeal not being properly constructed and going on one point of mitigation. Parking Eye are currently issuing summons, but a properly constructed appeal if you post here asking for help stands a good chance of seeing them off going all the way. I'd say they are only entitled to what the parking charge should have been, if that if their equipment wasn't working. Might be an idea to remove your vehicle reg and any other personal information as PE read these forums.
Golden rule of PoPLA for everyone is to do your own homework and research before submitting an appeal. As it was your word against PE, I can not see how PoPLA could of ruled any different. Now if you had put about signage, pre-estimate of loss, contractual ownership of land, etc, you would have won.Search my post " PoPLA evidence - What to submit" on what is a good defense for a PoPLA appeal.0 -
Reasons for the Assessor’s Determination
It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘Parking without a valid permit’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
The Appellant does not dispute that the terms of parking were clearly displayed, or that he failed to display a valid permit.
It is the Appellant’s case that:
a) The charge is disproportionate to the loss suffered.
b) The Operator does not have sufficient authority to issue parking charge notices in relation to this land.
c) TheOperatorhasbreachedtheBritishParkingAssociationCodeof Practice in a number of ways.
The Appellant has submitted that the parking charge does not reflect the Operator’s loss, and so is not enforceable. There is no dispute that the charge represents a sum for specified damages (a sum agreed in advance as appropriate compensation should the terms of a contract be breached). Accordingly, the charge must be a genuine pre-estimate of loss.
The Operator appears to submit that the £100 loss is caused because the Operator’s own contract with the landowner provides that the Operator will pay compensation to the landowner whenever a motorist parks in breach of the advertised terms of parking.
The Operator has produced a copy of its contract with the landowner, and no such requirement to pay compensation is included.
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 to tip the balance in its favour.
In this case I am not minded to accept that the Operator has shown that the parking charge represents a genuine pre-estimate of its loss.
Accordingly, I allow the appeal.
I need not decide any other issues, although I note with concern the Appellant’s submission that he was not given details of the POPLA appeals procedure. Operators are required to give out details of the POPLA procedure once its own appeals procedure is complete.
Thanks all0 -
Re: http://forums.moneysavingexpert.com/showthread.php?t=4610773&highlight=
(Appellant)
-v-
ParkingEye Ltd (Operator)
The Operator issued parking charge notice number xxxxx/xxxxxx
arising out of the presence at XXXXXX Retail Park, on 30 March,
of a vehicle with registration mark XXXX XXX.
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 Operator’s case that a parking charge notice (‘PCN’) was correctly
issued because the Appellant’s vehicle was parked for longer than the
maximum stay permitted. The Operator submits that its automatic number
plate recognition system (‘ANPR’) recorded the vehicle enter the site at 13:47
and exit at 17:32, a stay of 3 hours and 45 minutes. The Operator submits that
a parking charge is now due in accordance with the advertised terms and
conditions which stated “3 Hour Max Stay”. The Operator has produced a
photograph of the terms and conditions sign at the site together with
evidence that the Operator was contracted to enforce parking restrictions on
behalf of the land owner.
It is the Appellant’s case, amongst other grounds of appeal, that the parking
charge is unenforceable because it does not represent the actual or a
genuine pre-estimate of the loss resulting from the alleged breach of the
contract. The Appellant submits that the Operator has failed to produce
evidence or a breakdown of such a loss, which the Appellant submits would
in any event not justify the £100 parking charge.
The signage produced in evidence by the Operator states that a PCN would
be issued for “failure to comply” with the parking conditions. This wording
indicates that the parking charge represents damages for a breach of the
parking contract. The purpose of damages is to restore the party suffering loss
to the position it would have been in were it not for the breach. Accordingly,
the charge must be for the actual loss or based upon a genuine pre-estimate
of the loss flowing from breach of the parking terms. This might be, for
example, loss of parking revenue or even loss of retail revenue at a shopping
centre.
The Operator submitted that the charge is based upon the cost of enforcing
parking restrictions at the site (for example, by erecting signage and
employing administrative staff) and the charge was agreed by the land
owner and specified on site signage.
However, this does not represent a loss resulting from a breach of the parking
contract. The loss specified by the Operator is the cost of providing parking
enforcement at the site. In other words, were no breach to have occurred
the cost of parking enforcement would still have been the same.
Consequently, I have no evidence before me to refute the Appellant’s
submission that the parking charge is unenforceable.
I must allow the appeal on this ground.
Matthew Shaw
Assessor0 -
Another forum-fuelled (PePiPoo) POPLA win.
No information on who the PPC was, but this seems to be a case of a ticket being issued to a motorist parking in their own space without displaying a permit.Just to say thanks to all who helped me in fighting this PCN injustice. I attach a copy of the adjudication and hope that it helps others. Great result!
Reasons for the Assessor’s Determination
The Operator issued a parking charge notice (‘PCN’)for failure to display a valid permit. The Operator submits that a parking charge is now due in accordance with the advertised terms of parking. The Operator has produced photos of the Appellant’s vehicle and site signage in support of its case.
The Appellant disputes that he was parked improperly. Amongst other grounds of appeal, it is the Appellant’s case that the Operator does not have authority from the landowner to enforce parking restrictions at the site, and certainly not to usurp his own property rights to park where he did under his tenancy agreement. The Appellant challenged the Operator to produce evidence of a contract between the Operator and the landowner.
It was for the Operator to show that the Appellant parked in breach of the parking contract. The Appellant disputed the very basis of the Operator’s case; that it was not entitled to enforce parking restrictions unless it could prove it had authority to do so on behalf of the landowner (unless, of course, the Operator itself was the landowner). The Operator did not respond directly to this issue. The Operator only refers briefly that it is “authorised to manage the Site by way of an operating contract between ourselves and the landowners.” No evidence of that contract and the terms under which it was entitled to enforce parking restrictions was produced.
Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable for want of authority.
The appeal is allowed.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
My second POPLA loss.
Full report here http://parking-prankster.blogspot.co.uk/2013/08/smart-parking-two-prankster-nil.html
I appealed on the ground the signs were for a contractual charge but the PCN was for breach of contract.Reasons for the Assessor’s DeterminationThe operator issued a parking charge notice to a vehicle with registration mark CST U£27. The operator recorded that the vehicle was at Asda Store, Bedminster for longer than the permitted time of 2 ½ hours.The operator’s case is that the appellant’s vehicle was at the site for longer than the permitted time. The operator submits that this is a breach of the terms and conditions listed on the signage at the site and therefore the parking charge notice was correctly issued.The appellant does not dispute the operator’s case. The appellant’s case is that “Smart Parking therefore refer to the charge both as a term of the contract and a breach of the contract. As Smart Parking do not refer to the charge in a consistent way and do not appear themselves to know what the charge is for the appellant asks that the appeal be upheld”.Considering all the evidence before me, I find that the appellant’s case does not have a valid ground in order for me to allow this appeal. I also find that by the appellant being at the site for longer than permitted, they breached the terms and conditions of the site, which they accepted on parking their vehicle there.Accordingly, this appeal must be refused.Amber AhmedAssessorI'm not overly worried, for reasons which are apparent in the blog.Hi, we’ve approved your signature. It's awesome. Please email the forum team if you want more praise - MSE ForumTeam0 -
PP
I think it's an excellent strategy to test various 'defences' one by one as opposed to merely defeating the PPCs on the proven and accepted ones [pre-estimate of loss etc].
It will allow a much bigger selection for users to be able to choose from to defeat the scamsters.
BTW I think that the adjudicator cocked this recent one up...big style.0 -
Thank you to everyone for posting on this site. I hope this result will give anyone else who is being pursued by Parking Eye some hope that a POPLA appeal can work.
Reasons for the Assessor's Determination
It is the Operator’s case that a parking charge notice was correctly issued,
giving the reason as: 'By either not purchasing the appropriate parking time,
or by remaining at the car park for longer than permitted, in accordance with
the terms and conditions set out in the signage, the parking Charge is now
payable'. The Operator submits that a parking charge is now due in
accordance with the clearly displayed terms of parking.
It is the Appellant’s case that:
a) The Appellant is the registered keeper of the vehicle, but is not liable
for the parking charge, as he has provided the Operator with the
name and address of the driver.
b) The Operator failed to respond to the Appellant’s original
representations within the 35 day period permitted by the British
Parking Association Code of Practice.
c) The parking charge is disproportionate to any loss suffered by the
Operator.
d) The Operator does not hove sufficient proprietary interest in the land to
offer a parking contract.
e) The notice to keeper sent by the Operator, to the Appellant, does not
identify who is the creditor, as required by the Protection of Freedoms
ACT 2012.
f) The Appellant has also raised a number of alleged breaches of the
British Parking Association Code of Practice.
Membership of the Approved Operator Scheme does require the parking
company to have clear authorisation from the landowner, if it is not itself the
landowner, as to its 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 it believes refutes a
submission that it has no authority.
The Operator has not produced any evidence to demonstrate that it is the
land-owner; or, that it has the authority of the land-owner to issue parking
charge notices at this site. Once the issue is raised by on Appellant, it is for the Operator to demonstrate that it has authority, and a mere statement to the
effect that it has a contract will not be sufficient.
The Operator has also submitted that according to the case of Foirlie v
Fenfon, the Operator has the right to enforce the contract in its own right. I
must find that this does not address the Appellant’s submission that the
Operator does not have the right to offer a contract of all.
Taking together all of the evidence before me, I must find that the Operator
has failed to produce sufficient evidence to refute the Appellant's submission
that it did not have authority to issue a parking charge notice.
Accordingly, I must allow the appeal.
Chris Adamson
Assessor0
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