POPLA Decisions 9 March 2013 at 6:49PM edited 28 October 2016 at 9:29AM in Parking tickets, fines & parking 4.3K replies 927.5K views

lanchesterredandwhite

My successful POPLA decision against Highview Parking on genuine pre-estimate of loss below


The Operator issued parking chharge notice number xxxxxxxxx
arising out of the presence at the Victoria Centre, Consett, on 23 July 2013, of a vehicle with registration mark xxxxxxxxxx.
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.

Reaasons for the Assesssor’s Determination

The Operator issued a parking chaarge notice (‘PCN’) ffor parking in excess of the maximum free time permitted . The Opeeator’s automatic number plate recognition system (‘ANNPR’) observed the Appellant’s vehicle enter the site at
10:13 and exit at 12:44, a stay of 2 hours and 31 minutes. It is the Operator ’s case that a parking charge is now due in accordance with the advertised terms which stated: “2 hours free parking beetween 6am & 8pm …… customers may park in this area for a maximum of two hours only”.

It is the Appellant’s case, amongst other groounds, that the parking charge does not represent a genuine pre -estimate of the loss allegedly incurred. The Apppellant submitted that there was no loss of tariffs since the car park was free and no loss of revenue since the car park contained empty spaces.

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 appears to indicate that the parking charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing 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 of the losses incurred in managing the parking location to ensure compliance to the stated Terms and Conditions on site and to follow up any breaches.”

The entirety of the parking chargee 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 (for example, erecting signage) would still have been the same.

Consequently, I do not have the evidence before me to refute the Apppellant’s submission that the parking charge is unenforceable.

I must allow the appeal on this ground.

Accordingly, it does not fall for me to decide any remaining issues.

Mattthew Shaw

yogi69

so back in May of this year, I pulled up on Harbet Road, Paddington on a section of road reserved for a car club. In the time it took me to to read the sign and then turn into the NCP entrance, the park direct guy took a photo of me. At the end of may, I got a parking charge for £60. I appealed to PD and they rejected it as expected. I then appealed to POPLA in June and was told I would have a hearing in August. August came and went and nothing from POPLA, then in september a parking claims company wrote to me asking for £150. I told them i had appealed to POPLA, so wouldnt be paying anything if at all until after they have heard my appeal.

So today, I get confirmation that I won my appeal, the reasons were as follows

It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.

Morale of the story, is Appeal against these guys. They are trying it on big time.

Im glad I fought it, but others wont, they need to

Custard_Pie

Different take on genuine pre-estimate of loss. G24 Ltd this time. Interestingly, G24 had allegedly cancelled all three of my invoices prior to PoPLA.

PoPLA seem to have ruled anyway in my favour. I pursued the liquidated damages line, rather than GPEL. PoPLA appear to have agreed with me. This is the first time that I have seen PoPLA clearly state that a PPL is pursuing liquidated damages, agreed in advance.

Landmark ruling for any PPL who use signage that states similar?

At xxxxx on the xxxx 2013, a xxxxx with registration mark xxxx was recorded exiting the Maidenhead Retail Park after a stay of xxx minutes. The car park is a xxx minute maximum free stay car park as clearly displayed in prominent places within the car park. As the appellant was parked for xxx minutes, he was parked in excess of the maximum time permitted and was therefore parked in breach of the terms and conditions.

The appellant’s case is that the signage in the car park is unclear, inadequate and non-compliant and they are placed at a height and in small wording therefore insufficient to inform drivers of the terms and conditions. The appellant has also questioned whether the operator is lawfully entitled to demand money from the driver of the vehicle and have requested a copy of the contract to be provided. The appellant has additionally noted that the operator’s charges are penalties as the operator has failed to demonstrate the actual or pre-estimated losses and states that there was no contract between the driver of the vehicle and the operator.

Considering carefully all the evidence before me, the signage states that ‘if you breach any of the above terms and conditions, you agree to pay a charge of £100.’ This indicates that 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 reference whether the charge represents a genuine pre estimate of loss and therefore I have no evidence to dispute the appellant’s claim that the charge is not a genuine pre estimate of the loss incurred as a result of exceeding the maximum stay in the car park. 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

nigelbb

Damages for breach of a contract can be the actual losses incurred or as that can be difficult & time-consuming to agree on the parties may decide when they enter into the contract on a sum as liquidated damages which are a genuine pre estimate of loss. PPCs generally claim that their exorbitant parking charges are liquidated damages for breach of contract.

Computersaysno

Nice one custard.

So saying 'breach' makes it liquidated damages?

What about a sign that says for example....

Parking up to 2 hrs free; more than 2 hrs £200.

Or 'parking within marked bays, free; not within marked bays £200.

Or do they still come down to a breach/GPEOL position??

nigelbb

Gan on PePiPoo has a nice definition:-

Let's say you drive into a car park and see a sign that says for example :

This is a free car park for two hours.
If you stay any longer you agree to pay us £80

Is it a display of parking charges that you agree to, or a warning ?
It's easy to work out

If you think £80 is quite expensive but worth it to stay a bit longer, it's an agreed charge

If you think £80 is outrageous but your only option, it's an unfair contract that they can't enforce in court

If you think that you'd better leave before two hours is up, it's a penalty charge

hoohoo

Computersaysno wrote: »

Nice one custard.

So saying 'breach' makes it liquidated damages?

What about a sign that says for example....

Parking up to 2 hrs free; more than 2 hrs £200.

Or 'parking within marked bays, free; not within marked bays £200.

Or do they still come down to a breach/GPEOL position??

These (imhO) would be classed as a contractual charge. In this situation the operator does not have to prove they are a genuine pre-estimate of loss, but they do have to prove they are not punative, and that theyare not an unfair contract

Computersaysno

Nigelbb

thnx very much...much easier to comprehend

nigelbb

hoohoo wrote: »

These (imhO) would be classed as a contractual charge. In this situation the operator does not have to prove they are a genuine pre-estimate of loss, but they do have to prove they are not punative, and that theyare not an unfair contract

It's pretty clear that they are not agreed charges but either an unfair contract or a disguised penalty as no reasonable person would regard £200 as a fair price to pay for the privilege of parking with a two wheels over the white line. The PPC cannot claim that they allow motorists to park obstructing a fire exit at a price of £200. There are many reasons why the 'agreed charge' route isn't attempted by most PPCs e.g. there is no facility to pay the charge at the car park & most damning that they don't account for VAT on the charge. When it suits the PPCs it's a penalty or damages not subject to VAT.

trisontana

And also, they leave themselves open to the claim that once you have paid that £100 you can park there for ever.