POPLA Decisions

trisontana

This is Steve Clark's profile from Linked in

As you see , just a manager and salesman with no apparent legal training:-

Head of Operational Services at British Parking Association
Over twenty years top-flight, general management experience in a variety of organisations.
Persistent and persuasive salesperson who has transferred the communications skills learned into a successful management career.
Influential leader who understands people and their needs, in order to inspire them to give of their best.
Resourceful manager with the strength and depth of character to effectively deliver positive results from strong strategic foundations.

FingersLily

Just received the POPLA decision on my appeal against Parking Control Management. This is yet another case where the operator lost because they could not prove it was a genuine pre-estimate of loss:

The Operator issued parking charge notice number xxxxxxxx arising out of the presence at xxxxxxx, on xxxxxxx, of a vehicle with registration mark xxxxxxx for parking without displaying a valid permit.

It is the Operator's case that the Appellant's vehicle was parked without displaying a valid permit and this was a breach of the terms and conditions of parking as set out on signage at the site.

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 parking charge amount is not a genuine pre-estimate of loss.

The signage produced by the Operator states a failure to comply with the terms and conditions will lead to a charge of £100 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 pre-estimate of loss.

As the Appellant has raised the issue of the charge not being a genuine pre-estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a breakdown of costs that they incur in managing the car park, however this is a general list of operational costs and does not address the loss that was caused 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.

Noir Uddin
Assessor

Umkomaas

From my post on your original thread, but pertinent here I think (especially the Steve Clark reference):

Great news FL - another one bites the dust on the pre-estimate of losses.

Not ParkingEye this time, so you're not alone Rachel in fouling up on this. But don't worry, Steve Clark will be along soon with a training course for you

Stroma

I wonder when the bpa will order popla to not consider the pre estimate of loss ? I would take odds on it coming at some point.

Umkomaas

Courtesy of pepipoo. This OP did it all him/herself by reading and learning from the threads. Newbies - much to learn from this!

Hello there, like most of you, earlier in the year I got a speculative invoice from Parking Eye for overstaying in a retail park for 15 minutes. Using info of this and other sites I put an appeal together. The operator, the infamous Parking Eye, of course rejected it in the first instance. POPLA on the other hand allowed my appeal. This one is significant to me because my main grounds for appeal were that the charge was punitive in nature and didn't reflect the financial loss incurred by PE. Here's the body of the POPLA decision:

Reasons for the Assessor’s Determination
'the appellant was issued with a parking charge for breach of the advertised terms and conditions of the parking site.

The operator submits that the appellant stayed longer than the maximum free time allowed and did not display a valid ticket afterwards.

The appellant submits that, amongst other things, the amount of the charge is disproportionate to the loss incurred by ParkingEye Ltd.

The burden of proof therefore shifts to the operator to prove that the amount of the parking charge is proportionate to the loss incurred. The operator has attempted to address this in the case summary by submitting that, amongst other things, the operator incurs the costs of erecting and maintaining signage throughout the site. However, these costs would have been incurred by the operator regardless of whether or not the appellant breached the terms and conditions of the site.
I am therefore not satisfied that the operator has discharged the burden of proof. On this ground alone, I allow the appeal.'

Farah Ahmad
Assessor

Follow this thread and I will now attach the submissions I sent to POPLA in separate messages - a long thread with it all in would be too tiresome.

This is a cut and paste of my poplar appeal - it came from this site and was adapted to fit my situation. It covers a number of angles but concentrates on the scale of the charge:

Please find my appeal below:
Popla ref xxxxxxxxx
Parking Eye Ltd.
PCN noxxxxxxxxxxxxxxxx
Reg xxxxxx
Location
On the xxxxxxxx, Parking Eye issued a parking charge notice because the above vehicle
was allegedly recorded on their automatic number plate recognition system as having stayed
in the location for 1 hour.

My Appeal.
1. The amount of the charge is disproportionate to the loss incurred by Parking Eye Ltd
and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to
be a penalty because Parking Eye Ltd have alleged a breach of terms and conditions
and yet have not quantified their alleged loss (which cannot include business running costs
nor the POPLA fee).

2. I do not believe that the Operator has specifically demonstrated a proprietary interest in the land,
because they have no legal possession which would give Parking Eye Ltd any right to
offer parking spaces, let alone allege a contract with third party customers of the lawful
owner/occupiers. In addition, Parking Eye Ltd's lack of title in this land means they
have no legal standing to allege trespass or loss, if that is the basis of their charge. I require
Parking Eye Ltd to demonstrate their legal ownership of the land to POPLA.
3. I contend that Parking Eye Ltd are only an agent working for the owner and their
signs do not help them to form a contract without any consideration capable of being offered.
VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue
with compelling statements of fact about this sort of business model.

4. I believe there is no contract with the landowner/occupier that entitles them to levy these
charges and therefore has no authority to issue parking charge notices (PCNs). This being the
case, the burden of proof shifts to Parking Eye Ltd to prove otherwise so I require that
Parking Eye Ltd produce a copy of their contract with the owner/occupier and that the
POPLA adjudicator scrutinises it.

5. Even if a basic contract is produced and mentions PCNs, the lack of ownership or
assignment of title or interest in the land reduces any contract to one that exists simply on an
agency basis between Parking Eye Ltd and the owner/occupier, containing nothing that
Parking Eye Ltd can lawfully use in their own name as a mere agent, that could impact
on a third party customer.

6. The BPA code of practice contains the following:
21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce
parking in private car parks, as long as you do this in a reasonable,
consistent and transparent manner. Your signs at the car park must tell
drivers that you are using this technology and what you will use the
data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry
out a manual quality check of the ANPR images to reduce errors and
make sure that it is appropriate to take action. Full details of the items
you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good
working order. You need to make sure the data you are collecting is
accurate, securely held and cannot be tampered with. The processes that
you use to manage your ANPR system may be audited by our
compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle
or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on
the use of CCTV and ANPR cameras, and on keeping and sharing
personal data such as vehicle registration marks.
21.5 If you want to make use of the Keeper Liability provisions in Schedule 4
of POFA 2012 and you have not issued and delivered a parking charge
notice to the driver in the car park where the parking event took place,
your Notice to Keeper must meet the strict requirements and timetable
set out in the Schedule (in particular paragraph 9).
I have had no evidence that Parking Eye have complied with these BPA Code requirements for
ANPR issued tickets so require them to evidence their compliance to POPLA.

I submit this purported charge is not legal and Parking Eye should cease harassing me
forthwith.

Should you require further information, please let me know.

Custard_Pie

zzzLazyDaisy wrote: »

Jeezzzzz.... that case doesn't create a precedent - but the judge wasn't MAKING law, he was EXPLAINING it <slaps head>

When I get a break from personal stuff, I am going to do a step by steps 'Idiots guide to Genuine Pre-estimate of loss' complete with references and explanation of relevant case law in language that even a PPC tea boy can understand!

D

Admitting that costs are not a pre-estimate of loss means end-game for BPA and it's clients. They are never going to do that until there is one Court case that clearly kills the golden goose. This is similar to what happened with ACS Law and their file-sharing charge scam.

With more than 1 in 2 PoPLA cases still going in their favour, coupled with those who don't even get that far, it's still a profitable business.

trisontana

zzzLazyDaisy wrote: »

When I get a break from personal stuff, I am going to do a step by steps 'Idiots guide to Genuine Pre-estimate of loss' complete with references and explanation of relevant case law in language that even a PPC tea boy can understand!

D

And when you do, I'll send a copy off to Steve Clark at the BPA.

Spare_Me_A_Dime

Hello

Just a quick word to say that I won my POPLA appeal against those evil Parking Eye devils. In line with most recent posts, it seems PE were tripped up again on the grounds of pre-estimate of loss. I've included the decision in full below.
Many thanks to all on this forum who advised me on the best course of action and helped me through what was quite a stressful time. Oh, and special thanks to Coupon_Mad who basically wrote the whole POPLA appeal for me.

Cheers :beer:

It is the Operator’s case that a parking charge notice was correctly issued, given that the Appellant parked on site in a clear contravention of the terms and conditions for parking.
It is the Appellant’s case that, amongst other things, the charge does not represent a genuine pre-estimate of loss.
The parking charge appears to be a sum sought for liquidated damages, inother words, compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss any breach may cause.
The Appellant has requested that the Operator show a loss of income. The estimate must be based upon loss flowing from a 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 a genuine pre-estimate as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these.” The Operator gave examples of such costs, including the cost of erecting site signage and the cost of membership of the Driver and Vehicle
Licensing Authority.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. However, some of the costs referred to do not represent a loss resulting from the alleged breach. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same.
I must allow the appeal on this ground.
I need not decide on any other issues.

Matthew Westaby

Assessor

trisontana

Problems once again with their erection!

zzzLazyDaisy

HA! I note that Matthew Westaby has given the PPCs some fairly hefty pointers in that decision - not only to what items do NOT constitute 'genuine pre-estimate of loss' but also what items MIGHT reasonably be included in the calculation. Bang out of order as (in my view) it is inappropriate for a decision maker to take into account or comment on matters which have not been raised by either side - although not an entirely unexpected approach, nevertheless!