POPLA Decisions

hoohoo

Another 'no contract'

8 Nov 2013

A motorist
v
KBT Cornwall Limited t/as Armtrac Security Services & MBC Parking
Services (Operator)

The Operator issued parking charge notice number x arising
out of the presence at Sennen Top Car Park, on xx Aug 2013, of a
vehicle with registration mark x.

Reasons for the Assessor’s Determination
It is the Operator’s case that the parking charge notice was issued for failing to clearly display a valid Pay & Display ticket. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking which state that, “Any vehicle…not correctly displaying a valid ticket or not displaying an authorised permit…will be issued with a Parking Charge Notice”.

The Appellant makes a number of representations;
- the Parking Charge does not represent a genuine pre-estimate of loss,
- the vehicle in question was not parked in breach of the displayed
terms and conditions,
- the Operator does not have legal authority over the land in question or
the contractual authority from the landowner to pursue this charge,
- and, that the contract is null and void for unilateral verification by the
Operator.

I must first address the question raised of the Operators authority over the land in question.
Membership of the Approved Operator Scheme does require the parking
company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.
The Operator has not produced any evidence to demonstrate that it is the land-owner; or, that it has the authority of the land-owner to issue parking charge notices at this site. Once the issue is raised by an Appellant, it is for the Operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.

Consequently, I must find that the Operator has failed to produce sufficient evidence to refute the Appellant’s submission that it did not have authority to issue a parking charge notice.

Accordingly, I must allow the appeal.

Marina Kapour
Assessor

hoohoo

Update to post #5, which was the 'other' case POPLA did not uphold the appeal when genuine pre-estimate of loss was raised for breach of contract.

From an e-conversation with the original poster:

After a few threatograms, all went quiet.

Aaron_Aadvark

Allowed

London Parking Solutions Ltd

Authority to issue charges.

[Extract]

"The operator has not produced any evidence to demonstrate... that it has the authority of the landowner to issue parking charge notices at this site. ...a mere statement to the effect that it has a contract will not be sufficient."

"The Operator issued parking charge notice number XXX arising out of the presence at XXX, 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
At XX:XX on XX 2013, the operator’s employee observed a vehicle with registration mark XXX parked at XXX, without displaying a valid parking permit.

It is the operator’s case that a parking charge notice was correctly issued because the terms and conditions for parking at XXX are clearly displayed on signs at the site. A copy of the terms and conditions has been produced. The signs state that all vehicles parked on the private site not displaying an authorised parking permit will be issued with a £100 parking charge notice. The operator submits that, as the vehicle did not clearly display an authorised parking permit, a parking charge is now due in accordance with the clearly displayed terms of parking.

It is the appellant’s case that it was raining quite heavily when he parked at XXX and visibility was poor. The appellant submits that the signs he saw were small, above head height and not illuminated, making them difficult to read in the weather conditions. The appellant also submits that the parking charge is not enforceable because there is no contract between the
appellant and the operator; the operator does not have the authority to issue a parking charge notice on behalf of the landowner; and the parking charge is a penalty and does not represent a genuine pre-estimate of any loss to the landowner caused by the appellant’s parking contravention.

Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an appellant in an appeal, then the operator should address it by producing such evidence as it believes refutes a submission that it has no authority.

The operator has not produced any evidence to demonstrate that it is the landowner, or, that it has the authority of the landowner to issue parking charge notices at this site. Once the issue is raised by an appellant, it is for the operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.

Consequently, I must find that the operator has failed to produce sufficient evidence to refute the appellant’s submission that it did not have authority to issue a parking charge notice.

I need not consider any other issues.

Accordingly, I must allow the appeal.

Jane Slattery

Assessor"

http://notomob.co.uk/discussions/index.php?topic=3051.msg23197;topicseen#new

bod1467

Interesting! An appeal that includes GPEoL yet they allow it on no authority.

kirkbyinfurnesslad_2

A new name to

Computersaysno

bod1467 wrote: »

Interesting! An appeal that includes GPEoL yet they allow it on no authority.

It could be that the PPC sent in their 'response pack' and in it they had both a PEOL [albeit the usual cobbled together load of operating costs] and 'a signed statement of authority'.

So since they have not included the proper 'Contract' then the assessor can uphold the appeal without reading anything else or wasting effort actually assessing the GPEOL response.

So in reality it's [marginally] easier for the assessor to reject on 'no authority', than it is to read the GPEOL response.

If the PPC actually HAD enclosed a copy of their authority/contract then what the assessor would have done is assessed the GPEOL response and rejected on GPEOL. What they would NOT have done was read the contract and assess it's validity....that would have required too much effort.

Remember assessors are looking for the path of least 'work', and this case supports it.

trisontana

PE lose yet again. This time it's over lack of contract:-

http://forums.pepipoo.com/index.php?showtopic=82836&hl=

Umkomaas

bod1467 wrote: »

Interesting! An appeal that includes GPEoL yet they allow it on no authority.

That now seems to blow out of the water the Lead Adjudicator's efforts to help PPCs get over the contract hurdle with his miscalculated, misjudged and misguided 'Witness Statement'.

Nice try Mr Greenslade, but nowhere near good enough, I'm afraid!

Computersaysno

Umkomaas wrote: »

That now seems to blow out of the water the Lead Adjudicator's efforts to help PPCs get over the contract hurdle with his miscalculated, misjudged and misguided 'Witness Statement'.

Nice try Mr Greenslade, but nowhere near good enough, I'm afraid!

That's not how I read the ruling [but I could be wrong].

In this case the PPC didn't provide ANYTHING at all to prove they had authority [other than saying they had it]...no 'Greenslade statement', no copy of contract, no letter from landowner...just nothing.

So I'm not sure that 'Greenslade statements' no longer work.

Umkomaas

Computersaysno wrote: »

That's not how I read the ruling [but I could be wrong].

In this case the PPC didn't provide ANYTHING at all to prove they had authority [other than saying they had it]...no 'Greenslade statement', no copy of contract, no letter from landowner...just nothing.

So I'm not sure that 'Greenslade statements' no longer work.

It could be that the PPC sent in their 'response pack' and in it they had both a PEOL [albeit the usual cobbled together load of operating costs] and 'a signed statement of authority'.

Sorry, I agree. I was skim reading the unread posts on this thread and spotted the above and misread it as though the 'statement of authority' had been produced.

Nonetheless, I think there has been at least one recorded upheld appeal on this thread where the adjudicator dismissed the Witness Statement as not being admissible.

In a rush to shoot out right now, so don't have time to dig it up, but I'm 100% certain I'm right