POPLA Decisions

Umkomaas

Here's an interesting one. Or is it two?

Courtesy of PePiPoo

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.

Useful dates:

PCN # 1

First PCN received - 9th March 2013

Appeal sent - 25th March 2013

Generic EYE01 response received with POPLA code - 13th April 2013

POPLA appeal sent - 19th April 2013

Big package of useless information (labelled as 'evidence') from ParkingEye received on 26th April 2013

POPLA appeal allowed - 12th July 2013

PCN # 2

First PCN received - 16th March 2013

Appeal sent - 3rd April 2013

Generic EYE01 response received with POPLA code - 13th April 2013

POPLA appeal sent - 3rd May 2013

Big package of blah blah blah (with an extra sheet of toilet paper in the form of some kind of witness statement document) received on 25th May 2013

POPLA appeal allowed - 22nd July 2013

flashnazia

I did this for a family member. Could not have done it without all the help from posters on here. Thank you so much. :A

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 17 April 2013, the Operator, Parking Eye Ltd, observed a black ---- parked on the private land of

---

car park via the Automatic Number Plate Recognition (ANPR) system. The ANPR system observed the vehicle entering at 13.07 and leaving at 15.32. The Operator’s case is that the vehicle remained in the car park for longer than the maximum stay authorised. Thus, the vehicle was parked in contravention of the terms and conditions displayed, and parking charge notice was correctly issued ........

The Appellant made several representations to the Operator disputing the issue, and the amount of, the parking charge notice. One such submission is that a charge of £100 was an unfair contractual term under the Unfair Contract Terms Act 1977, and the charge did not represent a genuine pre- estimate of the Operator’s loss, and so is not enforceable.
From the evidence before me, I am satisfied that there was adequate and sufficient signage at various locations of the land clearly displaying the terms and conditions, namely that parking was restricted for a maximum of 2 hours. When parking on the private land, the onus was on the Appellant, as the driver of the vehicle, to ensure that they could abide by the terms and conditions clearly displayed.
However, the image of the signage produced states that “failure to comply with the terms and conditions will result in a parking charge of £100”. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre- estimate of loss. At this point, the onus is on the Operator to produce some explanation or evidence to justify the charge as a pre-estimate of loss. Whilst the Operator has provided a statement which it submits justifies the charge as a pre-estimate of loss, I am not minded to accept this justification.
The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach, in this case, the Appellant’s over stay in the car park for 25 minutes. The Operator has produced a list of costs; however, these appear to be general operational costs, and not losses caused by the Appellant’s breach.
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.
I need not decide on any other issues.
Harpreet Bansal
Assessor

Umkomaas

Another silver bullet smacks into the PE forehead. They really have totally lost the case on pre-estimate of loss.

Hey Rachel, I'd try to get your money back from that fancy silk of yours (although you might want to try to add that cost into your losses as well!) :rotfl:

If I was a PE business manager I'd be instructing the Appeals Team that the PCN of anyone raising the pre-estimate of loss in an initial appeal must be cancelled, 'cos we're gonna lose at POPLA, so save the company 27 notes by avoiding a guaranteed defeat for us'.

Well done flashnazia :T

trisontana

The annoying thing about this is that the BPA Ltd are in agreement with PE that their day-to-day running costs can be treated as losses. Why do they think that? Anyway I am about to fire off an email to them with extracts from five POPLA decisions which all show that costs are not losses. I doubt if I will get a sensible answer from them. I never do!

zzzLazyDaisy

trisontana wrote: »

Anyway I am about to fire off an email to them with extracts from five POPLA decisions which all show that costs are not losses.

Actually I think that would be a great way to deal with soft appeals - a bit of mitigation around the reason for the overstay to make it personal (and so avoid the allegation that it is a 'generic appeal'), and then bang in with genuine pre-estimate of loss argument accompanied by extracta of a few POPLA decisions against the specific PPC, on this particular point.

Umkomaas

zzzLazyDaisy wrote: »

Actually I think that would be a great way to deal with soft appeals - a bit of mitigation around the reason for the overstay to make it personal (and so avoid the allegation that it is a 'generic appeal'), and then bang in with genuine pre-estimate of loss argument accompanied by extracta of a few POPLA decisions against the specific PPC, on this particular point.

I think PE has done the industry permanent damage on the pre-estimate of losses by pursuing the nonsense about erections and club fees, and all on the basis of an expensive silk's advice.

I think Trev might have done a better job :rotfl:

Money well [STRIKE]spent[/STRIKE] wasted, methinks.

Custard_Pie

trisontana wrote: »

The annoying thing about this is that the BPA Ltd are in agreement with PE that their day-to-day running costs can be treated as losses. Why do they think that? Anyway I am about to fire off an email to them with extracts from five POPLA decisions which all show that costs are not losses. I doubt if I will get a sensible answer from them. I never do!

Of course they are going to support the claim. What's the alternative?
Admit that they have no case, thus opening themselves up to be potentially counter-sued and having to return the thousands of pounds already taken.

They will be like the guy in Iraq saying all is well as the tanks rolled up behind Him. They have painted themselves into a corner and can do nothing else.

Will be funny to watch when the whole lot finally comes tumbling down.

Pull up a chair and grab the popcorn, because it won't be much longer....

:rotfl:

trisontana

Perhaps I did not make myself clear, it's the BPA I will be writing to, not PE. I want to see what they say after they are presented with those POPLA decisions and they have previously sided with PE over this matter.

Coupon-mad

PARKING EYE LOSE AGAIN AT POPLA ON BASIS THAST THERE WAS NO GENUINE PRE-ESTIMATE OF LOSS:

http://forums.pepipoo.com/index.php?showtopic=78109&st=60&start=60


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
At 1**** on the **th October 2012, registration mark ****** was recorded exiting the Whalley Car Park after a stay of 16 minutes. The car park is a paid car park and it was recorded that no parking time had been purchased for the appellant’s vehicle.
The operator’s case is that the signage in the car park clearly shows that the car park is a paid car park and customers visiting the licensed premises can seek a redemption against purchases. The operator states that there are 13 signs throughout the car park displaying the terms and conditions and therefore the terms and conditions had been breached as the appellant failed to pay for parking.
The appellant’s case is that he originally appealed to the operator when the parking charge notice was issued but several months later they replied and said that the appeal had been unsuccessful. The appellant states that the operator’s appeal process is flawed and on the particular date in question, he was in the car park for a few minutes. He states that as he had no change, he went to try and get some from some nearby shops but because of the time, they were shut and therefore he left the car park. In addition, the appellant also states that £100 to park for 15 minutes is disproportionate and exceeds the cost to the landowner. The appellant also asked the operator to produce a copy of the contract which they have failed to provide.
The operator rejected the representations on the basis that the appellant had been unable to provide suitable evidence to show that they had not breached the parking terms and conditions.
Considering carefully all the evidence before me, although I appreciate that the signage is clear and clearly indicates the terms and conditions for parking, the appellant has raised the issue of whether the parking charge is a genuine pre-estimate of loss. The charge represents liquidated damages, which is compensation, agreed in advance; this means that the breach should represent the actual loss caused. The operator has failed to address the issue and therefore I have no evidence to dispute the appellant’s claim that the amount sought exceeds the cost to the landowner. As a result of this, I am not required to address the other issues raised by the appellant.
Accordingly, this appeal must be allowed.

Shehla Pirwany
Assessor

kirkbyinfurnesslad_2

Another loss for parking eye.

Hi all,

After about 3 months we received the Popla appeal decision in our favour.

We appealed on every aspect yet the "Assessor" said, and I quote, "...the appellant has raised the issue of whether the parking charge is a genuine pre-estimate of loss....this means the breach should represent the actual loss caused. The operator has made a reference to the loss incurred and justified the charge in relation to the erection and maintenance of site signage, installation, monitoring and maintenance of the ANPR systems....etc, etc. In this case, the justification appears to be on the basis of general operating costs rather than addressing the loss actually caused as a result of staying over the maximum permitted time. Based on this, I am not required to address the other issues raised by the appellant."