POPLA Decisions

Coupon-mad

Dumbledore won v Parking Eye on GPEOL. The Assessor neatly avoided the Equality Act point entirely:

https://forums.moneysavingexpert.com/discussion/4710265

Reasons for the Assessor’s Determination
At 12:28 on 3 July 2013, a vehicle with registration mark **** *** was recorded on Closed Circuit Television (CCTV) with Automatic Number Plate Recognition (ANPR) entering the Prospect Place car park. At 15:09 on 3 July 2013, the same vehicle was recorded on CCTV exiting the Prospect Place car park. This car park offers a two hour free stay, after which parking tariffs apply.

It is the operator’s case that a parking charge notice was correctly issued, because the terms and conditions for parking in the Prospect Place car park are clearly displayed on signs at the entrance to the car park and throughout the car park. A copy of the terms and conditions has been produced. The signs list daytime parking tariffs as ‘Monday – Saturday 8:00am – 6:00pm: Up to 2 hours Free Parking; Up to 3 hours £3.00’. The signs also state that a failure to comply with the car park terms and conditions will result in the issue of a £85 parking charge notice. The operator submits that, as the appellant’s vehicle remained parked in the Prospect Place car park for longer than two hours and no parking tariff was purchased, a parking charge is now due in accordance with the clearly displayed terms of parking.

The appellant has raised a number of issues in his appeal. In particular, the appellant submits that the operator has not provided sufficient evidence which demonstrates that the parking charge relates directly to the loss it incurred as a result of the alleged parking contravention.

The signage produced by the operator states that a parking charge notice would be issued for a “failure to comply” with the Prospect Place car park terms and conditions. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.

The operator has submitted that its charges are in line with the BPA Code of Practice. The BPA code states that operators must justify in advance any parking charge over £100. However, it does not automatically follow that any charge which is £100 or under is, therefore, justified. Where the issue is raised by the appellant, it is for the operator to address it.

The operator has submitted that its charges have been held to be enforceable in previous cases. However, the operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre- estimate of the loss caused in every car park.

The operator has produced a statement which it submits justifies the charge as a pre-estimate of loss. The operator states:
These costs include (but are not limited to): erection and maintenance of the site signage; installation, monitoring and maintenance of the automatic number plate recognition (ANPR) systems; employment of office biased administrative staff; membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO; general costs including stationary and postage etc.

The operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach, in this case, the appellant’s failure to pay the £3.00 parking tariff once the maximum two hour free parking period had expired. A substantial number of the costs listed by the operator appear to be general business costs, and not losses incurred, or losses that might reasonably be incurred, by the appellant’s breach. A genuine pre-estimate of loss should represent a loss and not a profit. It cannot include the operator’s business overheads.

The operator has submitted that the parking charge is enforceable as there is a strong commercial justification for the charge. It would appear that the courts have accepted commercial justification for a parking charge where the operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach. However, the operator cannot submit that costs which, in reality amount to the general business costs incurred for the provision of their car park management services, are commercially justifiable.

The onus is on the operator to prove its case on the balance of probabilities. In this case, the operator has not produced sufficient evidence to prove that this parking charge is a genuine pre-estimate of loss.
Accordingly, I allow the appeal. I need not consider any other issues.

Coupon-mad

HERE WE HAVE EXCEL BLANKING OUT THE LANDOWNER AND SO REDACTING THEIR CONTRACT TOO MUCH!


https://forums.moneysavingexpert.com/discussion/4755783

BullTerrierFan (Appellant)
-v-
Excel Parking Services Limited (Operator)
The Operator issued parking charge notice arising out of the presence at the Peel Centre- Stockport, on 22/08/2013, of a vehicle with registration mark ******. 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.
2562853501 25 November 2013
Reasons for the Assessor’s Determination
At 15:06 on the 22nd August 2013, a vehicle with registration mark ******* was recorded exiting the Peel Centre- Stockport after a stay of 77 minutes.
The car park is a pay and display car park as stated on signage placed throughout the car park and therefore as it was recorded that no parking time had been purchased for the appellant’s vehicle, he was parked in breach of the terms and conditions.
The appellant’s case is that they were unfamiliar with the area and they were unaware of the fact that the retail park charged for parking. The appellant states that the operator has not shown that they have the authority to issue parking charge notices to motorists. The appellant has additionally stated that the charge is an unlawful penalty charges as the charge is not a genuine pre-estimate of the loss incurred as it is disproportionate to the losses incurred. The appellant also adds that the operator has failed to provide evidence to show that the cameras at the car park are compliant with the BPA Code of Practice.

Considering carefully all the evidence before me, the appellant has stated that the operator does not have the authority to recover parking charges from motorists that are parked in breach of the terms and conditions. Although the operator has provided a copy of the contract, the operator has blanked out the name of the employer and the signatures of the parties to the contract and therefore as the contract does not show the names of the parties, the contract provided is insufficient to show that the operator has the authority to issue parking charge notices on behalf of the landowner. As a result of this, I need not decided any of the other issues raised by the appellant.

:T

bargepole

This one is significant, the motorist parked in a disabled bay, but POPLA didn't think this gave any more weight to the Operator's case (UKCPS take note):



Mr XXXX XXXXXXX (Appellant) -v- ParkingEye Ltd (Operator)

The Operator issued parking charge notice number 99999/00000
arising out of the presence at XXXXX, on 17 August 2013, of a vehicle with registration mark ZZZZZZ.

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 xxx on the 17 August 2013, a vehicle with registration mark ZZZZZZZ, was parked in a displayed bay in NNNNNN without displaying a valid permit. The Operator’s employee therefore issued a parking charge notice which was then affixed to the vehicle. It is the Operator’s case that the terms and conditions of parking state that vehicles parked in the disabled bays need to display a valid blue badge. As the Appellant was not displaying a valid blue
badge, the Operator submits the parking charge was correctly issued.

The Appellant denies that the charge is a genuine pre-estimate of loss and has asked the Operator for a breakdown of how the amount requested is directly linked to the infringement, and not merely an arbitrary amount which is punitive.

The Operator submits that the charge is a genuine pre-estimate of loss, but that in any event the charge is commercially justified.
The wording of the signage on site seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The Operator is required to show that the losses stated are directly related to the Appellant’s failure to display a valid blue badge. In this case, the Operator has stated that the charge is a genuine pre-estimate of the loss incurred as they incur significant costs in managing the car park to ensure motorists comply with the stated terms and conditions. The Operator has stated that the costs include the maintenance of the site signage, monitoring and maintenance of the ANPR systems, employment of office-based
administrative staff and membership fees. In this case, the justification appears to be on the basis of general operating costs rather than addressing the loss actually caused as a result of not displaying a valid badge.

The Operator submits that the Appellant has parked in a disabled bay without displaying a blue badge, and that if all motorists were able to do this then genuine disabled motorists would be disadvantaged and potentially unable to use the store which will have commercial implications for the landowner. On those ground, the Operator submits there is a clear commercial justification for the charge.

Although the Operator has stated that the charge is commercially justified, the charge can not be a deterrent and the amount sought for the breach of the terms and conditions cannot be the entire source of their income and must be loss based rather than based on profit in order to amount to a genuine pre-estimate of loss. I do not accept the Operator’s submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of an Operator in respect of
a particular car park operation cannot of itself amount to commercial justification.

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 must allow the appeal.
Izla Rhawi
Assessor

trisontana

CAG are reporting a defeat for Athena ANPR. It's the usual GPEOL:-

http://www.consumeractiongroup.co.uk/forum/showthread.php?401557-Athena-ANPR-Invoice/page3

Coupon-mad

That's interesting because Athena do try to word their signs as a contractual charge, from what I have seen of Lidl signage in threads recently. I think newbies should be wary of relying on GPEOL in every case of course.

4consumerrights

Re the Parking Eye case above - just how did they know there was no blue badge - I thought Parking Eye didn't go in for warden patrols.

kirkbyinfurnesslad_2

4consumerrights wrote: »

Re the Parking Eye case above - just how did they know there was no blue badge - I thought Parking Eye didn't go in for warden patrols.

This was a ticket on the windscreen job.

nigelbb

PE don't actually have any boots on the ground but are purely reliant on their cameras. Anything stuck on windscreens is self-ticketing done by an employee of whoever hired PE. However in this case the POPLA Assessor refers to the "Operator's employee" issuing a PCN which surely cannot be correct.

Coupon-mad

Another no GPEOL verdict against ParkingEye on pepipoo (along with a case that NCP threw in the towel about!):

http://forums.pepipoo.com/index.php?showtopic=85683

ParkingEye Ltd (Operator). 6062127071 2 22 November 2013
The Operator issued parking charge notice number ,,,, arising out of the presence at Ilford Retail Park, on 24 June 2013, of a vehicle with registration mark XX 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

It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘By either not purchasing the appropriate parking time, or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the parking Charge is now payable’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

The Appellant does not dispute that the terms of parking were clearly displayed. It is the Appellant’s case that:

a) The parking charge is a penalty, and does not reflect the loss caused by the alleged contravention.

b) The machine on site was broken and so did not issue a ticket for the correct length of time paid for.
c) The Operator does not have sufficient proprietary interest or authority to issue parking charge notices in relation to this land.
d) The notice to keeper issued does not identify the creditor and so does not comply with Schedule 4 of the Protection of Freedoms Act 2012.
e) The Operator has failed to demonstrate that its Automatic Number Plate Recognition technology complies with the requirements of the British Parking Association Code of Practice.

The Appellant has submitted that the parking charge does not reflect the loss caused by the alleged breach. Clearly, it is the Appellant’s case that the parking charge is not compensatory in nature. The signage produced states that a parking charge notice would be issued for a “failure to comply” with the terms of parking. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.

The Operator submits that the charge is in fact a genuine pre-estimate of loss, and further submits that the charge is justified commercially and so need not in any case be a genuine pre-estimate of loss.

Firstly, I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the Appellant. It seems that the courts have accepted a third category of liquidated damages, a sum which is commercially justified – in cases where the sum is neither a penalty nor is it strictly a genuine pre-estimate of loss – where the Operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach.

However, I do not accept the Operator’s submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification.

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, in this case, the Appellant’s failure to purchase the appropriate parking time. The Operator has produced a list of costs; however, a substantial proportion of these appear to be general operational costs, and not losses consequential to the Appellant’s breach. The aim of damages for breach of contract is to put the parties in the position they would have been in had the contract been performed.

Accordingly, the Operator cannot include in its pre-estimate of loss costs which are not in fact contractual losses, but the costs of running its business and which would have been incurred irrespective of the Appellant’s conduct.

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. I need not decide any other issue

Chris Adamson
Assessor

:T

Green_hopeful

Reasons for the assessor's determination

At 0651 on 21 June 2013, a vehicle with registration mark XXX was recorded by Automatic Number Plate Recognition (ANPR) camera entering the car park at xxx Road in xxx. After 12 hours and 28 minutes, the same vehicle was recorded by the ANPR system exiting the car park.

It is the Operator's case that the terms and conditions of parking state that this is a paid parking car park. The Operator submits that as the Appellant had not paid for valid parking, the parking charge was correctly issued.

The Appellant has raised several issues in her appeal however I will only consider the point on which I am allowing this appeal. The Appellant submits that the Operator has failed to show that the standard fixed charge in that car park is a genuine pre-estimate of loss. Clearly, it is the Appellant's case that the parking charge is compensatory in nature. Therefore the amount sought should represent the losses incurred as a result of the breach.

The Operator submits that the charge is a genuine pre-estimate of loss, but that in any event the charge is commercially justified.

The wording of the signage on site seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.

The Operator is required to show that the losses stated are directly related to the Appellant's failure to purchase valid parking. In this case, the Operator has stated that the charge is a genuine pre-estimate of the loss incurred as 'significant costs are incurred in managing the car park to ensure that motorists comply with teh stated terms and conditions.' The Operator has stated that the costs include the erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office based administrative staff, membership fees, and general costs including stationary and postage. In this case, the justification appears to be on the basis of general operating costs rather than addressing the loss actually caused as a result of not purchasing valid parking.

Although the Operator has stated that the charge is commercially justified, the amount sought for the breach of the terms and conditions cannot be the enitre source of their income and must be loss based rather than based on profit in order to amount to a genuine pre-estimate of loss. I do not accept the Operator's submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of an Operator in respect of a particular car park operation cannot iof itself amount to commercial justification.

Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parkign charge is a genuine pre-estimate of loss.

Accordingly, I must allow the appeal.

Izia Rhawl
Assessor