POPLA Decisions

citybluemoon

Thanks to everyone here and at Pepipoo as my appeal was upheld. Here is the decision letter extract:


Reasons for the Assessor’s Determination

On x August 2013, a parking charge notice was issued to a vehicle with registration mark xxxxxxxx for parking without purchasing sufficient parking time.

The operator’s case is that the site is “Paid Parking Car Park” as clearly stated on the signage. The operator says that the terms and conditions are clearly displayed on numerous signs placed at the entrance, exit and throughout the site. The operator says that the appellant’s vehicle was observed parked for x hours xx minutes. They say that the appellant paid for x hours parking but he remained parked for x hour x minutes longer than the time paid for. They



have produced copies of the parking charge notice and the signage and



ANPR images of the vehicle taken at the time of the parking event.

The Appellant’s case is that the parking charge is punitive and it is not a genuine pre-estimate of loss.

The Operator rejected the representations, as set out in the correspondence they sent because they state that a breach of the car park conditions had occurred by parking without purchasing sufficient parking time. They have attached a sample of recent court hearings in support of their case where judges have found on their favour and have not found these charges to be either a penalty or a genuine pre-estimate of loss.


The Operator strongly submits that it’s parking charges, levied for breach of contract, are legally enforceable and cannot be classified as a penalty. The Operator has cited the recent case of ParkingEye v Mr Shelley (2013), where District Judge Dodd adhered to the finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia (1996) and found that, on balance of probabilities, it was more likely that the dominant purpose of the charges was t o provide for the regulation of the car park area. He stated that a breakdown of the costs
was not required, as the contract was formed on its own terms.



The Operator states that they believe that its charges are fair and reasonable. Furthermore, they say that there is commercial justification for the charges



which means that charges cannot be considered as cases of E-Nick (2012) and Cadogan Petroleum (2013

enalties. They say that illustrate this point. They



submit that private management of car parks is commercially necessary for landholders. They say that the contracts and its clauses are necessary to prevent abuse of private land. They state that they believe that their charges, a set out by the landholder are fair. Nevertheless, they say that i f the appellant did not believed them to be, they should not have parked in the car park.


They cite the case of Mayhook v National Car Park v Fuller (2012) where it was held that the charge was not a penalty. They state that it is very difficult industry in which to determine a completely accurate pre-estimate of loss. They submit that this will depend on the losses to the Operator, and on the potential losses to the landholder, which will vary depending on the time of day, the day of the week and even upon the weather.

They say that they calculated the outstanding parking charge amount as a genuine pre-estimate of loss as they incur significant costs in managing the car park to ensure motorists adhere to the stated terms and conditions of parking and to follow up any breaches of this. They state that they have incurred costs among other things, the employment of parking attendants to patrol the parking location to include supervisory staff and vehi cles, training, uniforms. They claim that the charge amount and the calculati ons which have been made in setting it, has been approved and agreed by the landowner and/or agent of the site. They state that the sum is within the
recommendations set out within Clause 19 of the BPA Code of P ractice.

I find that general running costs of the Operator’s business do not indicate how the parking charge sought directly relates to the vehicle’s parking in the car park. There are items which clearly fall within the definition of genuine pre- estimate of loss such as the actual direct costs arising out of the presence of the vehicle in breach of the conditions of parking do. These would include
the fee payable to the Driver and Vehicle Agency (DVLA) to obtain keeper details where required, the administrative expenses involved ,costs in preparing and sending notices and a parking fee lost from another vehicle that could have been properly parked in the space occupied. Nevertheless, there are instances where there is no charge to park, as is the positions in this present case and all of these costs, apart from staff costs, appe ar to be fairly modest. Furthermore, general running costs of the Operator’s business, membership of the BPA, membership of other trade bodies and erecting signage would imply just a business cost rather than a loss arising and the operator would presumably have to pay these sums in any event.

I find that the operator in this case refers to general principles and to other cases but does not appear to specify the actual heads of loss. I note that some heads submitted in this present case may fall within a genuine pre-estimate of loss, nevertheless, I find that a substantial proportion of them do not. Equally for the reasons, set out above, a list of all their costs in the case cannot amount to commercial justification. In short, the damages sought on this particular occasion do not substantially amount to a genuine pre- estimate of loss or fall within commercial justification.






Accordingly, the appeal must be allowed.

trisontana

Great result and summary. Could you please tell us the name of the Parking Company.

citybluemoon

Sorry - it was Parking Eye!


It was for an overstay in a car park in The Lakes. What p*****d me off even more was that when I complained to them as to didn't they think a £100 fine was extortionate they emailed me:


Parking Eye is contracted by the Lake District National Park Authority to ensure that those who should pay on the car parks do pay giving a fair system for all. Parking Eye is a member of the British Parking Association (BPA) and their terms and documentation complies with the rules of BPA. The level of the penalty charge is set by Parking Eye, we cannot comment on this and they retain the majority of it. You would need to contact the company directly for further information about this.

nigelbb

citybluemoon, you will be pleased to know that the Lake District National Park Authority are not renewing PE contracts & a new ‘user friendly’ system will be introduced – Park With Ease
http://www.thewestmorlandgazette.co.uk/news/10103794.Lake_District_National_Park_Authority_ditches_Parking_Eye_at_car_parks/

Coupon-mad

Why why why why why why do people keep doing rubbish POPLA appeals without even bothering to read the POPLA website (which tells them mitigation isn't considered) let alone without managing to think to Google 'how to win at POPLA' and finding this forum or pepipoo in time?


Bad POPLA appeal done without forum help...result was of course, sadly, they managed to LOSE v ParkingEye at Fistral Beach for fairly ridiculous reasons:



http://forums.pepipoo.com/index.php?showtopic=85838&st=0



Reasons for the Assessor’s Determination

On ** August 2013, a parking charge notice was issued to a vehicle with registration mark ******* for parking without purchasing sufficient parking
time.

The operator’s case is that the site is “Paid Parking Car Park” “Parking tariff £3.20 up to 2 hours” “£1 evening parking tariff from 18:00 -00:00” as clearly stated on the signage. The operator says that the terms and conditions are clearly displayed on numerous signs placed at the entrance, exit and throughout the site. The operator says that the appellant’s vehicle was observed parked for 3 hours 12 minutes. They say that the appellant paid for 2 hours parking but he remained for 1 hour 12 minutes longer than the time he paid for. They have produced copies of the parking charge notice and the signage and ANPR images of the vehicle taken at the date of the parking event.

The appellant’s case is that the vehicle was not improperly parked. He says that the fees listed in the car park stated the cost as £1.80 for 1 hour and £1 for the entire period from 18:00 until the following morning. He says that he paid £3.20 for parking in order to cover parking. He claims that the parking voucher does state that his departure time should be 19:33 but this is inconsistent with the fees advertised at the site. He asserts that his appeal has been rejected by the operator with no explanation of the circumstances. He attached a copy of his parking voucher.

The operator rejected the representations, as set out in the correspondence they sent because they state that a breach of the car park conditions had occurred by parking without purchasing sufficient parking time. They say that it is the driver’s responsibility to ensure that he complies with the terms and conditions of parking when he decided to park in the car park.

I note the appellant’s comments and I appreciate his situation, nevertheless, I find that the onus is on the appellant to adhere to the parking restrictions. I have checked the signage and I find that parking tariffs are clearly displayed on the board and they do not indicate that the £1 parking tariff applies until next morning, it applies only for the evening. I find that the operator has taken reasonable steps to support the enforcement of the parking charge and prove their submissions.

Considering carefully all the evidence before me, I must find as a fact that, on this particular occasion, by parking without purchasing sufficient parking time, there occurred a breach of the car park conditions to which the appellant have deemed to have accepted when he decided to park his
vehicle at the site. Accordingly, this appeal must be refused.

Aurela Qerimi
Assessor

kirkbyinfurnesslad_2

Again it illustates why coming on here, Pepipoo or CAG is important BEFORE you appeal not come after asking for help

kirkbyinfurnesslad_2

Excel @ Peel Centre.

Reasons for the Assessor’s Determination


The Operator issued a parking charge notice (‘PCN') for failure to display a valid ticket. The Operator submits that a parking charge is now due in accordance with the advertised terms which required motorists to display a valid Pay & Display ticket. The Operator has submitted a copy of a parking enforcement contract in support of its case.
Amongst other grounds, the Appellant disputes that the Operator has authority to issue parking charge notices in relation to this land and required it to prove otherwise.
Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if itself is not the landowner, to enforce parking restrictions. This is set out in the BPA Code of Practice. As with any issue, if the point is specially raised by an appellant in an appeal, then an operator should address it by producing such evidence as they believe refutes a submission that they have no authority. A mere statement to the effect that it has a contract will not be sufficient.
In response to the Appellant’s request for a copy of the contract with the landowner, the Operator supplied a redacted copy of that contract.
This document falls short of showing that the Operator was retained by the landowner to enforce parking restrictions at this site when the PCN was issued. For example: the landowner is not identified (this information has been redacted); the last digit of the year in which the contract starts is obscured; and the document is not signed (any signatures have been redacted). Whilst commercially sensitive information, such as the value of the contract, can legitimately be redacted, the contract must identify the parties to it and contain such information as necessary to authenticate its validity.
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 must allow the appeal on this ground alone. It does not fall for me to decide any remaining issues.

hoohoo

kirkbyinfurnesslad wrote: »

Excel @ Peel Centre.

Reasons for the Assessor’s Determination


The Operator issued a parking charge notice (‘PCN') for failure to display a valid ticket. The Operator submits that a parking charge is now due in accordance with the advertised terms which required motorists to display a valid Pay & Display ticket. The Operator has submitted a copy of a parking enforcement contract in support of its case.
Amongst other grounds, the Appellant disputes that the Operator has authority to issue parking charge notices in relation to this land and required it to prove otherwise.
Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if itself is not the landowner, to enforce parking restrictions. This is set out in the BPA Code of Practice. As with any issue, if the point is specially raised by an appellant in an appeal, then an operator should address it by producing such evidence as they believe refutes a submission that they have no authority. A mere statement to the effect that it has a contract will not be sufficient.
In response to the Appellant’s request for a copy of the contract with the landowner, the Operator supplied a redacted copy of that contract.
This document falls short of showing that the Operator was retained by the landowner to enforce parking restrictions at this site when the PCN was issued. For example: the landowner is not identified (this information has been redacted); the last digit of the year in which the contract starts is obscured; and the document is not signed (any signatures have been redacted). Whilst commercially sensitive information, such as the value of the contract, can legitimately be redacted, the contract must identify the parties to it and contain such information as necessary to authenticate its validity.
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 must allow the appeal on this ground alone. It does not fall for me to decide any remaining issues.

Complaint to BPA and DVLA time? Operating without a contract is max sanction points.

Coupon-mad

http://forums.moneysavingexpert.com/....php?t=4794571

That one transcribed above was the appeal by ChileOliveTrees in the above thread

NEWBIES!!! Please just read other Peel Centre, Stockport, Excel threads by searching this forum for the single keyword 'Peel' and then the keyword 'Excel'; seriously please don't start a new thread except if you need help at POPLA stage. We have too many unnecessary new threads about this place already and they are all the same, all covered by the NEWBIES thread on how to appeal and all easily won at the moment.

Kelly-L_2

The Operator issued parking charge notice number

xxxxxx arising out of the presence at xxxxxx Street Car

Park, on xxxxxxx 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.

xxxxxxx 2013

Reasons for the Assessor’s Determination

On xxxxx 2013, an employee of the Operator observed a grey xxxxx parked on the private land at xxxx Street Car Park. The employee recorded the vehicle details and issued the parking charge notice on the basis the vehicle was ‘parked without displaying a valid payment, in breach of the displayed conditions of parking. Therefore, the Operator submits the parking charge notice was correctly issued.

The Appellant made representations to the Operator that she had a valid ticket to park on the land. I note the Appellant has provided a copy in the representations. 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 signage produced states that “…”. 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 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. I am not satisfied that the Operator has shown that the charge sought is a genuine estimate of the potential loss caused by the failure to display the ticket. Whilst the Operator has produced a list of costs, 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.

Harpreet Bansal Assessor