POPLA Decisions

hockeyben

Hi, I posted an update on my original thread earlier. Here is the letter. It was Excel at the Peel Centre. Thanks so much for all the help from here - couldn't have done it without this forum.

Excel also sent a heavily redacted contract as well so I wondered if that would be mentioned.


The operator’s case is that the terms and conditions for parking in the car park are displayed on numerous signs situated at the entrance and throughout the car park. The operator says that their photographic images show that the appellant’s vehicle was observed parked for duration of xx mintes in a 24 hour controlled pay and display ANPR managed car park without purchasing a valid pay and display voucher. They have produced photographic evidence which illustrates this point and they have produced copies of the parking charge notice and their signs.

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 not displaying a valid pay and display voucher. They state that their charges are deemed to be a reasonable charge for liquidated damages in respect of the breach of the parking contract and contend that it is not excessive or unfair for a number of reasons. They say that they have calculated the parking charge as a genuine pre-estimate of their losses as they incur significant costs in managing the parking location. They state that some of these costs include but are not restricted to the following: employment of parking attendants to patrol the parking location, ad-hoc mobile patrols of the parking location, erection and maintenancce of the site signage, parking payment and enforcement equipment to include the pay and display machines, membership and other fees including those paid too BPA, DVLA andd ICO, general costs including stationery and postage, employment of office-based administrative staff and contribution to Head Ofice overheads.

They claim that the charge amount and the calculations
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 Practice.

They say that they believe that their parking charges are fair and reasonable and are in line with the British Parking Association Guidelines and they have been tested in the Court of Appeal. They state that they do not issue or collect excess charges which are only relevant to on-street or civil enforcement area and such legislation are not enforceable on private land. The operator says that the charge of £75 was found to be reasonable in the case of Parking Eye v Somerfield.

The operator does respond to the appellant’s submission that the charge is not a genuine pre estimate of loss. However, their submissions do not sufficiently address such issue.

Having considered all the evidence before me, I must find that on this particular occasion, the operator has insufficiently dealt with the issue of genuine pre estimate off loss raised by the appellant. As the appellant raised this point, the burden of proof has shifted to the operator to prove that they do. On balance of probabilities, I find that the operator has not discharged the burden of proof.

Accordingly, this appeal must be allowed.

Umkomaas

Reference posts 619 & 620.

Nice decision , and one that questions their authority to issue these tickets. And their contract with the landowner. Makes a change from a genuine pee estimate of loss. Well done !

Also in the context of the contract, there's no mention of PE producing one of their 'Witness Statements' in lieu of the actual contract.

Maybe Parking Prankster has really put the skids under them after rumbling their spurious processes and practices around these?

Coupon-mad

The victories are flying in today!

Here's another VCS at an Airport victory by 'Poohandpiglet'
https://forums.moneysavingexpert.com/discussion/4744421


29 November 2013
Rob (Appellant)
-v-
Vehicle Control Services Limited (Operator)

The Operator issued parking charge notice number xxxxxxxxxx arising out of the presence at the approach roads to Robin Hood Airport, on 7
August 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.

Reasons for the Assessor’s Determination
On 7 August 2013, the Operator observed the Appellant’s vehicle on the private land at the Approach Roads to Robin Hood Airport, via the mobile
traffic enforcement CCTV camera’s. The Operator’s case is that the vehicle was ‘stopped on a roadway where stopping is prohibited’, namely in a bus
stop. Therefore, as the vehicle was stopped in breach of the displayed terms and conditions, the parking charge notice was correctly issued.
The Appellant made representations to the Operator that he was the driver of the vehicle at the material time. The Appellant disputes the issue of the
parking charge notice for several reasons. In summary, it is the Appellant’s case that:
1) the Operator has not identified ‘the creditor’ or the ‘relevant land’ on the ‘notice to keeper’ as per the requirements of Schedule 4 of the Protection of Freedoms Act 2012 and therefore, the parking charge notice has not been issued correctly;
2) the amount of the parking charge is not a genuine pre-estimate of the Operator’s loss; and
3) there was insufficient signage outlining the terms and conditions of stopping on the land.
As with all cases, the Operator must demonstrate their case on the balance of probabilities, and must produce some evidence or explanation to refute the Appellant’s submissions. The wording on the signage produced by the Operator 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 they incur ‘significant costs in managing the parking location to ensure compliance with the stated terms and conditions and to follow up on any of the breaches identified’. The Operator has also purported to outline some heads of loss, including that of maintenance of CCTV equipment, membership costs to the DVLA and the BPA and purchasing, and hiring computer hardware and software. However, I am not minded to accept these justifications.
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 stoppage on the land. 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.
I need not decide on any further issues.
Harpreet Bansal
Assessor

pinkpanther55

My daughter received a pretend ticket from parking eye, we appealed on several points but the usual GPEOL won the day!!

When are these fraudsters going to be stopped? If POPLA are ruling these charges are invalid, surely that is fraud? Attempting to extort money not owed by menace?

nigelbb

pinkpanther55 wrote: »

When are these fraudsters going to be stopped? If POPLA are ruling these charges are invalid, surely that is fraud? Attempting to extort money not owed by menace?

Trading Standards should be interested if for a particular car park PE consistently lose at POPLA on no GPEOL as it demonstrates that they are knowingly claiming parking charges that are unjustified & unenforceable. This would be an unfair trading practise.

Umkomaas

nigelbb wrote: »

Trading Standards should be interested if for a particular car park PE consistently lose at POPLA on no GPEOL as it demonstrates that they are knowingly claiming parking charges that are unjustified & unenforceable. This would be an unfair trading practise.

Aldi might be a good start!

trisontana

VCS Robin Hood Airport, GPOL:-

https://forums.moneysavingexpert.com/discussion/comment/64004100#Comment_64004100

parker10

Here is my verdict Me Vs Parking Eye (fistral beach)

Appeal Allowed.............

The Operator issued parking charge notice number XXXXX
arising out of the presence at Fistral Beach, on XXXXX, of a vehicle with registration mark XXXXX.

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 xxxxx on the xxxx September 2013, a xxxxxxxx with registration mark xxxxxx was recorded exiting the Fistral Beach Car Park after a stay of 3 hours and 17 minutes. The car park is a paid car park as stated on signage placed throughout the car park and therefore although the appellant purchased parking time, the appellant had purchased 1 hour’s parking time and as a result of parking in excess of the time paid for, the appellant was parked in breach of the terms and conditions.

The appellant’s case is that the operator has failed to show that they have a contractual authority to demand money from motorists and states that the charge is punitive and is not a genuine pre estimate of the loss incurred and as the operator has failed to provide a breakdown of the losses, the charge is a penalty. The appellant additionally notes that the operator has failed to comply with the Protection of Freedoms Act 2012, no contract was formed between the operator and the driver and the terms of the contract are unfair.

Considering carefully all the evidence before me, from the wording of the signage at the site, it would appear that the charge represents liquidated damages, which is compensation agreed in advance and therefore the amount sought should represent the losses incurred as a result of the breach.

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 the stated terms and conditions.’ The operator has stated that the costs include the erection and maintenance of 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.

As the charge represents liquidated damages, the operator is required to show that the losses stated are directly related to the appellant’s failure to purchase sufficient parking time, however a number of the costs referred to are costs that would be incurred in the general day to day running of the business and are operating costs rather than costs incurred as a result of parking in excess of the time paid for.

Although the operator has stated that the charge is commercially justified, the amount sought for a breach of the terms and conditions cannot be the entire source of their income and the charges must be loss based rather than profit based in order to amount to a genuine pre estimate of loss. 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 in this case as the costs sought by the operator are costs that would normally be incurred in their business, the amount sought is not a genuine pre estimate of loss and cannot be commercially justifiable.

Accordingly, this appeal must be allowed.

Shehla Pirwany

Assessor


Cheers! to coupon_mad and Guys_Dad, much appreciated for your help and advice

tospig

My friend had an appeal allowed by POPLA against PE based on GPEOL. When I get the details I'll post them up.

I'm pleased as I didn't have to help her with the words. All I did was point her to this forum and she put together the appeal herself.

Coupon-mad

Success by krryd9 against 'Parking Ticketing Ltd' on the driver's OWN LAND - won on 'no GPEOL':


https://forums.moneysavingexpert.com/discussion/4752213