POPLA Decisions

BrightonandHove

And here's the text from the win posted earlier by SlimmingSusan ( apologies for the formatting - the PDF didn't convert very well ! ) :

[FONT=&quot]Reasons [/FONT][FONT=&quot]for the Assessor’s Determination[/FONT][FONT=&quot][/FONT]

[FONT=&quot]On a date, a parking charge notice was issued to a vehicle with registration mark B4D 1UCK for parking for longer than 1 hour and 20 minutes permitted.[/FONT]

[FONT=&quot]
[/FONT] [FONT=&quot]T[/FONT][FONT=&quot]he Operator’s case is that the site is “1 Hour 20 Minutes [/FONT][FONT=&quot]Maximum [/FONT][FONT=&quot]Free Stay[/FONT][FONT=&quot][/FONT][FONT=&quot] Car Park” as clearly stated on the signage. The Operator says that the terms[/FONT][FONT=&quot][/FONT][FONT=&quot] and conditions are clearly displayed on nu[/FONT][FONT=&quot][/FONT][FONT=&quot]erous signs placed at the[/FONT][FONT=&quot][/FONT][FONT=&quot] entrance, [/FONT][FONT=&quot]exit and throughout the site. The Operator says that the Appellant’s vehicle was parked for 54 minutes longer than the permitted stay. They have produced copies of the parking charge notice and the signage. Photographs of the vehicle taken on the date of the parking event have also been[/FONT][FONT=&quot] enclosed [/FONT][FONT=&quot]b[/FONT][FONT=&quot]y the operator.[/FONT][FONT=&quot][/FONT]



[FONT=&quot]
[/FONT] [FONT=&quot]I[/FONT][FONT=&quot]t is the Appellant’s case that the parking charge noti[/FONT]
[FONT=&quot]genuine pre-estimate [/FONT][FONT=&quot]o[/FONT][FONT=&quot]f loss. e does not reflect a[/FONT]

[FONT=&quot]
[/FONT]
[FONT=&quot]T[/FONT][FONT=&quot]he Operator rejected the representations, as set out in the noti ce of rejection they sent because they state that a breach of the car park conditions had occurred by parking for longer than the stay authorised. 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.[/FONT]


[FONT=&quot]
[/FONT] [FONT=&quot]T[/FONT][FONT=&quot]h[/FONT][FONT=&quot]e Operator strongly submit[/FONT][FONT=&quot]s[/FONT][FONT=&quot] [/FONT][FONT=&quot]th[/FONT][FONT=&quot]a[/FONT][FONT=&quot]t it’s parking charges, levied for breach of[/FONT][FONT=&quot][/FONT][FONT=&quot] contract, [/FONT][FONT=&quot]a[/FONT][FONT=&quot]re legally enforceable and cannot be classified as a penalty. The Operator [/FONT][FONT=&quot]has cited the recent case of Parking Eye v Mr Shelley (2013), wh re[/FONT][FONT=&quot][/FONT]

[FONT=&quot]Di[/FONT][FONT=&quot]s[/FONT][FONT=&quot]t[/FONT][FONT=&quot]r[/FONT][FONT=&quot]i[/FONT][FONT=&quot]c[/FONT][FONT=&quot]t[/FONT][FONT=&quot] [/FONT][FONT=&quot]Jud[/FONT][FONT=&quot]ge Dodd adhered [/FONT][FONT=&quot]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[/FONT]
[FONT=&quot]wa[/FONT][FONT=&quot]s[/FONT][FONT=&quot] not required, as the contract was formed on its own terms.[/FONT][FONT=&quot][/FONT]


[FONT=&quot]T[/FONT][FONT=&quot]he 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 penalties. They say that cases of E-Nick (2012) and Cadogan Petroleum (2013) illustrate this point. They submit that private management of car parks is commercially necessary for[/FONT]
[FONT=&quot]landholders. [/FONT][FONT=&quot]T[/FONT][FONT=&quot]h[/FONT][FONT=&quot]e[/FONT][FONT=&quot]y[/FONT][FONT=&quot] [/FONT][FONT=&quot]s[/FONT][FONT=&quot]a[/FONT][FONT=&quot]y[/FONT][FONT=&quot] 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.[/FONT]

[FONT=&quot]T[/FONT][FONT=&quot]h[/FONT][FONT=&quot]e[/FONT][FONT=&quot]y 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.[/FONT]

[FONT=&quot]T[/FONT][FONT=&quot]h[/FONT][FONT=&quot]e[/FONT][FONT=&quot]y 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 vehicles, training, uniforms. 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[/FONT]
[FONT=&quot]rec[/FONT][FONT=&quot]ommen[/FONT][FONT=&quot]dat[/FONT][FONT=&quot]i[/FONT][FONT=&quot]ons[/FONT][FONT=&quot] set out within Clause 19 of the BPA Code of Practice.[/FONT][FONT=&quot][/FONT]

[FONT=&quot]I [/FONT][FONT=&quot]find that general running costs of the Operator’s business do not indicate how the parking charge sought directly relates to the vehicle’s overstay 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[/FONT]
[FONT=&quot]th[/FONT][FONT=&quot]e fee payable to the Driver and Vehicle Agency (DVLA) to obtain keeper details where required, the administrative expenses involved ,co sts 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.[/FONT]

[FONT=&quot]I [/FONT][FONT=&quot]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[/FONT]
[FONT=&quot]some heads submitted in this present case may fall wi hin 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 genuin e pre- estimate of loss or fall within commercial justification.[/FONT]

[FONT=&quot]A[/FONT][FONT=&quot]c[/FONT][FONT=&quot]c[/FONT][FONT=&quot]ordingly, [/FONT][FONT=&quot]t[/FONT][FONT=&quot]he appeal must be allowed.[/FONT][FONT=&quot][/FONT]

[FONT=&quot]Aurela Qerimi[/FONT][FONT=&quot][/FONT]
[FONT=&quot]A[/FONT][FONT=&quot]s[/FONT][FONT=&quot]s[/FONT][FONT=&quot]e[/FONT][FONT=&quot]sso[/FONT][FONT=&quot]r[/FONT][FONT=&quot][/FONT]

bod1467

Just to pick up on Matthew Shaw's ramblings ... why would the time taken by an office person to prepare paperwork (administration) for a specific parking charge notice be a loss? That person wasn't employed to deal with a specific PCN, and would have been paid anyway, so surely the time involved is not a loss but a business cost?

trisontana

bod1467 wrote: »

Just to pick up on Matthew Shaw's ramblings ... why would the time taken by an office person to prepare paperwork (administration) for a specific parking charge notice be a loss? That person wasn't employed to deal with a specific PCN, and would have been paid anyway, so surely the time involved is not a loss but a business cost?

Or to quote the judge in a well-known "civil recovery" case - that is one of the person's "core duties" which they are being paid for anyway.

Coupon-mad

A less commonly discussed PPC, UKCPM Ltd, soundly beaten on no GPEOL:

https://forums.moneysavingexpert.com/discussion/4798376

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.

The operator’s case is that the signage on site, which is displayed in close proximity to the appellant’s vehicle, clearly states ‘permits must be clearly displayed in the windscreen at all times.’ The operator states that the notices sent are compliant with the Protection of Freedoms Act as the creditor is identified by the fact that correspondence is on company letter headed paper. {:) LOL! So when a debt collector writes on headed paper, then they are the creditor are they?! }

The operator additionally states that the charge is not a genuine pre- estimate of loss as the parking charge is a contractual term rather than an amount sought by way of damages.

The appellant’s case is that a parking permit was displayed at the time of parking and it was displayed next to the disabled badge on the dashboard. The appellant states that if the driver entered into a contract, it could only have been formed during the interval comprising parking and reading the signs. The appellant notes that the operator has failed to comply with Schedule 4 of the Protection of Freedoms Act 2012 and states that the charge of £100 is not a genuine pre estimate of loss as it exceeds the loss to the landowner. The appellant additionally states that no contract was formed between the driver and the operator and the operator has failed to show that they have the authority to issue parking charge notices to motorists parked in breach of the terms and conditions.

Considering carefully all the evidence before me, although the operator states that the amount sought is a contractual term and therefore does not have to be a genuine pre estimate of loss, the wording on the signage states ‘unauthorised parking or parking a vehicle in an area of space that has not been designated to you, may result in your vehicle being issued with a parking charge notice.’ It is clear from this that breaching the specific conditions stated may result in a parking charge notice and therefore it appears that the amount sought is for those that are parked in breach of the terms and conditions. This amount would appear to represent liquidated damages which is compensation agreed in advance. This means that the amount sought should represent the loss incurred. The operator has failed to reference the loss incurred and therefore I have no evidence to dispute the appellant’s claim that the charge is not a genuine pre estimate of the loss incurred as a result of parking without a permit. As a result of this, I need not decide the other issues raised by the appellant.

trisontana

Parking Prankster has been totting up PE's POPLA results as annotated on this thread . The current score stands at motorists 67 and PE zero. All GPOL. Says it all really!

Tomolly

I have just received the decision of my POPLA appeal and it was sucessful.

Thanks to couponmad and everyone else on here that has given great advice and guidance.


The Operator issued parking charge notice number XL07352692 arising out of the presence at Peel Centre (Stockport), on 28 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.
Parking on Private Land Appeals is administered by the Transport and Environment Committee of London Councils Calls to Parking on Private Land Appeals may be recorded
Reasons for the Assessor’s Determination
The Operator submits that the parking charge notice was issued because the Appellant recorded a stay of 54 minutes in the said car park without clearly displaying a valid ticket/permit. 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. It is the Appellant’s case that:
- the charge sought is not a genuine pre-estimate of loss caused by the alleged breach,
- the Operator has failed to comply with the BPA code regarding time frames,
- and that the Operator does not have any legal authority over the land in question; to issues parking charges or other.
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 produced a contract for the Peel Centre; however I am not minded to accept a contract which has the signatures of both parties and one party to the contract’s name redacted. Therefore the Operator has failed to show fulfilling 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.
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.
Other issues need not be decided.
Accordingly, I must allow the appeal.
Marina Kapour
Assessor

Umkomaas

The Operator has produced a contract for the Peel Centre; however I am not minded to accept a contract which has the signatures of both parties and one party to the contract’s name redacted. Therefore the Operator has failed to show fulfilling 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.

Wow, chucked out in its ear on the basis of just one name being redacted (presumably all the other 'Commercial - In Confidence' stuff was unredacted?).

Well done OP

trisontana

I wonder if this was yet another less than inspiring performance by Rachel "toothbrush" Coates of Excel?

Coupon-mad

I do like Marina Kapour's decisions! I wonder if this OP has a copy of the Peel Centre contract that isn't covered by any privacy clause?

kirkbyinfurnesslad_2

Coupon-mad wrote: »

I do like Marina Kapour's decisions! I wonder if this OP has a copy of the Peel Centre contract that isn't covered by any privacy clause?

they should do if it was sent by Excel,
Doesnt stop them showing us in private