POPLA Decisions

springer4

Received my POPLA appeal result today. Another victory against Parking Eye due to 'not a genuine pre-estimate of loss'.

Thanks for assistance received on this site. :j

Umkomaas

springer4 wrote: »

Received my POPLA appeal result today. Another victory against Parking Eye due to 'not a genuine pre-estimate of loss'.

Thanks for assistance received on this site. :j

Well done Springer, monkey off your back

Umkomaas

Well done to blueskier on PePiPoo, who I helped with his POPLA appeal. Predictable GPEOL win. Pity they didn't spank Trev on all his other deficiencies; nevertheless a win is a win.

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

10 October 2013

Reference XXXXXXXXXX
always quote in any communication with POPLA

XXXXXXX XXXXX (Appellant)
-v-
ANPR Limited (Operator)
The Operator issued parking charge notice number XXXXX arising
out of the presence at Cherry Tree Car Park, Wallasey, on 00/00/2013,
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.

10 October 2013

Reasons for the Assessor’s Determination
At 00:00 on the 00th XXX 2013, the operator’s employee observed a coloured car with registration mark XXXX XXX parked at Cherry Tree Car
Park, Wallasey. A parking charge notice was issued to the appellant’s vehicle
for parking without a valid pay and display voucher on display.
The operator’s case is that the signage in the car park shows that a pay and
display voucher is required in order to park. The appellant was observed to be
parked without a valid pay and display voucher on display and he was
therefore parked in breach of the terms and conditions.
The appellant’s case is that the notice to keeper was issued outside of the
relevant period and was not compliant with the Protection of Freedoms Act
2012. The appellant states that the operator does not have the authority to
recover parking charges, they have failed to comply with the BPA Code of
Practice in relation to rejecting the challenge. The appellant has additionally
noted that the operator has misrepresented their authority and states that the
charge is not a genuine pre estimate of the loss caused but is a penalty.
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 sought to justify this
charge and has stated that they are a member of an Approved Trade
Association and therefore the ATA has a constitution, a code of practice and
a schedule of payments and appropriate fees. The operator then states that
they are governed by these limitations but has failed to address whether the
parking charge amount is a genuine pre estimate of the loss incurred as a
result of failing to display a pay and display voucher. 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


Not happy that the assessor says that "The appellant was observed to be
parked without a valid pay and display voucher on display and he was
therefore parked in breach of the terms and conditions."

I was not the driver and even reiterated the fact in my rebuttal. I was hoping it would go to court as i have an insurance document proving i was test driving a vehicle at the exact time ten miles away.

trisontana

Another loss for CE:-

Well, it's been a while but I finally got the result of the POPLA appeal today. The appeal was allowed (hurrah) on the grounds that the Notice to Keeper was not properly issued as it did not comply with the Protection of Freedoms Act 2010. This, as I read it, is because it was (a) not sent within 14 days and (b) did not invite the Keeper to identify the driver.

http://forums.pepipoo.com/index.php?showtopic=80971&hl=

Coupon-mad

'NTK not compliant' is a good one then.

Umkomaas

Makes a welcome change from the GPEOL diet we're being served of late (in jest for the super-sensitive!).

bargepole

Coupon-mad wrote: »

'NTK not compliant' is a good one then.

Yes, here it is in full:

10 October 2013

XXXXXXXXXXXX (Appellant)

-v-

Civil Enforcement Limited also t/as Starpark & Creative Car Park & Parksolve & Versatile Parking (Operator)

The Operator issued parking charge notice number XXXXXXXXXXXX arising out of the presence at the XXXXX Car park, on 14 June 2013, 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

The Operator’s employee issued a parking charge notice (‘PCN’) for not displaying a valid permit. The Operator’s automatic number plate recognition system (‘ANPR’) observed the Appellant’s vehicle enter the site at 12:19 and exit at 12:30, a stay of 11 minutes.

The Operator submits that a parking charge is now due in accordance with the advertised t erms of parking which stated that “all drivers must obtain a permit inside the pub”. The Operator submits that the vehicle was not authorised to use the car park. The Operator has produced a copy of its site signage.

The Appellant disputes liability for the parking charge.

Amongst other grounds of appeal, it is the Appellant’s case that the Operator has failed to establish liability for the parking charge because it did not issue a Notice to Keeper in compliance with Schedule 4 Paragraph 9 of the Protection of Freedoms Act 2010 (‘the Act’). For example, the Notice to Keeper was issued out of time and did not invite the Keeper to either pay the charge or identify the driver.

Having reviewed the correspondence before me, I note that at no point has the Appellant indicated that he was the driver of the vehicle at the material time.

Accordingly, the driver at the time of the event has not been identified. Where a PCN is not issued to the driver and the driver remains unidentified, the Protection of Freedoms Act 2012 (‘the Act’) provides for the recovery of an unpaid parking charge from the vehicle’s Registered Keeper. This is provided under Schedule 4 Paragraph 9 of the Act.

Consequently, to pursue the registered keeper under the Act, the Operator was required to obtain the Keeper’s details and give them a Notice to Keeper letter (‘Notice’) within 14 days, beginning the day after the parking period in question. This is provided for under Paragraph 9(5) of the Act. The deadline for giving Notice was therefore 28 June 2013. However, the Operator’s letter
is dated 1 July 2013. Furthermore, this letter did not comply with the requirements of Paragraph 9(2). to identify the driver. For example, it did not invite the Appellant to name the driver.


I note that the Operator stated “there is no legal requirement to send out a PCN within 14 days.” There is a legal requirement that the Notice to Keeper be given within 14 days, beginning the day after that on which the alleged breach occurred.

Whilst not a ground raised by the Appellant, the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. On the evidence before me it appears the Notice was not compliant with the Act. I therefore find that the Notice to Keeper was not properly issued.

Consequently I must allow the appeal on this ground alone.

It does not fall for me to decide any remaining issues.

Matthew Shaw
Assessor

bod1467

Is that a copy/paste of the POPLA decision? If yes, nice to see that they can't even get their details right ... PoFA was 2012 not 2010.

Hoster

Hi, Just a quick note to say that I won my POPLA appeal against ParkingEye and to thank you all for your help putting it together.

Here is the second page of the PDF sent to me:

The Operator’s case is that the Appellant’s vehicle was parked in breach of the car park conditions by remaining at the car park for longer than the stay authorised or without authorisation.

The Appellant made representations stating his case. The Appellant raised a number of points and of the points was the fact that there was no genuine pre-estimate of loss and that the penalty charge is unlawful. The Appellant has also stated that there has been a breach of the Unfair Terms in Consumer Contract Regulations 1999.

The Appellant has submitted that the parking charge does not represent a genuine pre-estimate of the Operator’s loss, and so is not enforceable.

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. The Operator has produced a statement which it submits justifies the charge as a pre-estimate of loss; however, 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. The Operator has produced a list of costs; however, these appear to be general operational costs, and not losses consequential to 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.

Sakib Chowdhury
Assessor

Thank you and kind regards.

Computersaysno

Dull, dull, dull...GPEOL again.