POPLA Decisions

bod1467

Computersaysno wrote: »

Let me save a bit of time....of the next 50 'successes' at POPLA, about 47 will be on GPEOL.

The last few reported here have been No Authority rather than GPEOL.

Umkomaas

trisontana wrote: »

Not it's UKCPS' turn:-

http://forums.pepipoo.com/index.php?showtopic=84894&hl=

<xxx> (Appellant)
-v-
UKCPS Limited (Operator)

The Operator issued parking charge notice number <xxx> arising out of the presence of <xxx> car park, on <xxx> 2013, of a vehicle with registration mark <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:

The Operator issued parking charge notice number <xxx> arising out of the presence of <xxx> car park, on <xxx> 2013, of a vehicle with registration mark <xxx> for parking without a valid permit or authority.
It is the Operator's case that the Appellant's vehicle was parked without a valid permit or authority and this was a breach of the terms and conditions of
parking as set out on signage of the site.
The Appellant has made a number of submissions which I do not intend to deal with and will only elaborate on the reason why I am allowing this appeal, namely that the Operator does not have the authority from the landowner to issue parking charge notices.
The Appellant has asked to see proof that the Operator has the authority to issue parking charges. The Operator has failed to provide a copy of the contract between themselves and the landowner to show that they have the authority to issue parking charge notices and therefore I have not evidence before me to refute the Appellant's submission. The onus is on the Operator to prove their case against the Appellant and on this occasion they have not done so.
Accordingly, this appeal must be allowed.
Nozir Uddin
Assessor

Presumably a BPA sanctionable offence? If they can't produce it for their own appeals service, one has to question whether they have one at all? The adjudicator has stated quite categorically that:

the Operator does not have the authority from the landowner to issue parking charge notices.

Over to you BPA - time to get your compliance team undertaking a thorough investigation here!

Piemaster

Computersaysno wrote: »

Let me save a bit of time....of the next 50 'successes' at POPLA, about 47 will be on GPEOL.

This discussion is way more interesting than 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , rejected on mitigating circumstances, 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' , no contract, 'another on GPEOL' ,'another on GPEOL' , 'another on GPEOL' , 'another on GPEOL' ,'another on GPEOL'

I agree. In fact, start another thread and I will be happy to participate. I just don't think it belongs here, that's all. People look on this thread to read about and track POPLA decisions.

Guys_Dad

First post and first sentence on this thread says what it was created for. A compilation of results from POPLA, not a usual discussion thread.

Regular contributors refer newbies to this thread for appeal points and adjudicator reasons. If most of it is clogged up with viewpoints, it makes it harder for people we try to help.

So, please people, respect why it was created and made a sticky.

And apologies for adding yet another post to this thread.

Stroma

Perhaps we could ask Crabman to split the discussions out of the thread completely into a new thread? And just have this purely as result thread only. It will be pretty easy to do, and we could link it so if people want to discuss this thread do it in that.

The only thing is as the thread is quite big it's going to take an hour or two just doing that working flat out, don't know if he'll want to spend the time doing it?

Coupon-mad

A slightly different one being reported on pepipoo tonight, against Napier who I knew might be harder to beat as they try to word their signs like a 'contract' and also (sort of) own their car parks...BUT NAPIER LOST!

http://forums.pepipoo.com/index.php?showtopic=77378

Decision here, no GPEOL!!

Fergie76

Stroma wrote: »

Perhaps we could ask Crabman to split the discussions out of the thread completely into a new thread? And just have this purely as result thread only. It will be pretty easy to do, and we could link it so if people want to discuss this thread do it in that.

The only thing is as the thread is quite big it's going to take an hour or two just doing that working flat out, don't know if he'll want to spend the time doing it?

I started a POPLA Decisions Discussion Thread a while a go, but it never took off.

http://forums.moneysavingexpert.com/showthread.php?t=4737487&highlight=

Computersaysno

Fergie76 wrote: »

I started a POPLA Decisions Discussion Thread a while a go, but it never took off.

http://forums.moneysavingexpert.com/showthread.php?t=4737487&highlight=

Probably because it's the postings of the decisions that spark the discussion??

Coupon-mad

APCOA AT LUTON AIRPORT - ''The Operator...has not attempted to justify the charge as a genuine pre-estimate of loss.'''

http://forums.moneysavingexpert.com/showthread.php?t=4724663

Reasons for the Assessor’s Determination
It is the Operator’s case that there is ample signage throughout the area
displaying terms and conditions. The Operator submits that the parking
charge notice was issued for dropping off/picking up outside of a marked bay and in a restricted area. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

The Appellant makes a number of representations, however I will only be discussing relevant ones not address by the operator. The Appellant has submitted that the parking charge does not reflect the Operator’s loss. The Operator has not addressed this submission.
It appears to be the Appellant’s case that the parking charge represents a sum for specified damages, in other words compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss caused by the alleged breach.
The Operator does not appear to dispute that the sum represents damages, and has not attempted to justify the charge as a genuine pre-estimate of loss.
Consequently, I have no evidence before me to refute the Appellant’s
submission that the parking charge is unenforceable.

Accordingly, I must allow the appeal.

Marina Kapour
Assessor

*************************************************************

Here was the POPLA appeal if it helps newbies to see another one:

POPLA Ref xxxxx
APCOA Parking.PCN no xxxxxxx

A notice to keeper was issued to me (The Registered Keeper of vehicle reg XXXXXXX) for an alleged contravention of 02-Dropping/Picking up outside of a designated parking area on xx-April-2013. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system.

My Appeal.

1). The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

2). 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 APCOA have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on xx April 2013, and the notice to keeper was received 30 days later on xx May 2013.

3). The BPA code of practice also says '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details. 'The PCN says 'either/or' of 2 different contraventions as a generic catch-all. This does not comply with the BPA code point 20.14.

4). The amount of the charge is disproportionate to the loss incurred by APCOA Parking Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because APCOA Parking 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).

5). I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking 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 APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.

6). I contend that APCOA Parking 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.

7). 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 APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

8). 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 APCOA Parking Ltd and the owner/occupier, containing nothing that APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

9) Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

Computersaysno

So out of the comprehensive 9 points raised, the assessor skimmed it, saw number 4 was GPEOL, jumped on it, allowed appeal and put their feet up with a cup of coffee.