POPLA Decisions

Tomolly

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?

Hi, Peel did send me a redacted copy of the contract

Coupon-mad

Did they say it was secret and couldn't be shared? If not could you pm a copy to me or kirkbyinfurnesslad please because there are some clauses we'd like to see. Or is it a massive paper document?

Tomolly

Coupon-mad wrote: »

Did they say it was secret and couldn't be shared? If not could you pm a copy to me or kirkbyinfurnesslad please because there are some clauses we'd like to see. Or is it a massive paper document?

I have emailed a copy to kirbyinfurnesslad, it was a PDF file, had private and confidential stamped accross it but didn't read anywhere that it could not be shared.

AllanI

This the text of my successful appeal to POPLA. Thanks to everyone who helped me with this.

The Operator issued parking charge notice number XYZXYZ arising out of the presence at XXXXXX Retail Park, on XX/XX/2013,of a vehicle with registration mark YYYYYY.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and hasdetermined 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 the XX th Month 2013, a big car withregistration mark XX00XX was recorded exiting the XXXXXXX Retail Parkafter a stay of 0 hours and 0 minutes. The car park is 0 hour and 00 minutemaximum free stay car park as stated on signage placed throughout the carpark and therefore as the appellant had parked in excess of the maximumstay time, he was parked in breach of the terms and conditions.

The appellant’s case is that the charge is not a genuine pre estimate of lossand does not reflect the losses that have been suffered by the landowner.The appellant states that the operator has not shown that they have theauthority to issue parking charge notices to motorists who are parked in breach of the terms and conditions. The appellant additionally notes that thesignage is inadequate, the charge is an unlawful penalty charge and theappellant requires the operator to show that the operator has paid businessrates. The appellant additionally states that the operator should not be trying to make him pay the fee for appealing to POPLA.

Considering carefully all the evidence before me, from the wording of thesignage at the site, it would appear that the charge represents liquidateddamages, which is compensation agreed in advance and therefore theamount 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 estimateof the loss incurred as ‘significant costs are incurred in managing the car parkto ensure that motorists comply with the stated terms and conditions.’ Theoperator has stated that the costs include the erection and maintenance ofsite signage, installation, monitoring and maintenance of the AutomaticNumber Plate Recognition systems, employment of office basedadministrative staff, membership fees, and general costs including stationaryand postage.

As the charge represents liquidated damages, the operator is required toshow that the losses stated are directly related to the appellant’s XVI minuteoverstay in the car park, however a number of the costs referred to are coststhat would be incurred in the general day to day running of the business andare operating costs rather than costs incurred as a result of remaining in thecar park in excess of the maximum free stay period.
Although the operator has stated that the charge is commercially justified,the amount sought for a breach of the terms and conditions cannot be theentire source of their income and the charges must be loss based rather thanprofit based in order to amount to a genuine pre estimate of loss. It would appear that the courts have accepted commercial justification for a parkingcharge where theoperator has substantiated the loss incurred, or the loss thatmight reasonably be incurred, by the breach however in this case as thecosts sought by the operator are costs that would normally be incurred in theirbusiness, 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

p5x

Athena ANPR beaten on "no contractual authority to levy charges"

The appellant has made various representations; I have not dealt with them
all as I am allowing this appeal on the following ground.

It is the appellant’s case that the operator does not have contractual
authority to levy charges.

Thee operator in response has provided a statement which is signed by a
director whom I consider to have sufficient authority too sign the statement on
behalf of Lidl. This statement provides that the operator has authority to levy
parking charge notices on some of Lidl’s properties but does not specify that
this site is one of those properties. .

Considering carefully, all the evidence before me, thee statement provided as
evidence by the operator does not state that the operator has the authority
to levy charges on the site in question; this issue is also raised by the appellant.
Therefore, I find that thee operator has not shown that they have sufficient
authority to issue parking charge notices at the site.

Accordingly, this appeal must be allowed.

Full thread here

trisontana

Post#647 is yet another Parking Eye defeat.

kirkbyinfurnesslad_2

Coupon-mad wrote: »

Did they say it was secret and couldn't be shared? If not could you pm a copy to me or kirkbyinfurnesslad please because there are some clauses we'd like to see. Or is it a massive paper document?

Coupon, ive emailed you a copy

trisontana

This rather strange one has just popped up on PePiPoo:-

http://forums.pepipoo.com/index.php?showtopic=86136&hl=

My POPLA appeal against CEL was successful.

The reasons POPLA gave were:

1) Parking ticket not issued within 14 days
2) Ticket can only be issued to the driver (not owner). CEL have not proven the defendant was the driver.

Thanks to people on this forum for advice and support, much appreciated.

Umkomaas

trisontana wrote: »

This rather strange one has just popped up on PePiPoo:-

http://forums.pepipoo.com/index.php?showtopic=86136&hl=

My POPLA appeal against CEL was successful.

The reasons POPLA gave were:

1) Parking ticket not issued within 14 days
2) Ticket can only be issued to the driver (not owner). CEL have not proven the defendant was the driver.

Thanks to people on this forum for advice and support, much appreciated.

Since when have POPLA been dealing with 'defendants'? Are they also impersonating authority too, as well as some of their mates in the BPA AOS?

parking_mad_4

The Operator issued parking charge notice number xxxxxxx arising out of the presence at Tower Road, Newquay, of a vehicle with registration mark XXXXXXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered thee 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 13:11, on XXXXXXXX, a CCTV automatic number plate recognition (ANNPR) system recorded the Appellant’s vehicle entering the Tower Road, Newquay car park.

The Operator’s case is that the Appellant breached the car parking conditions by either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

The Appellant made representations stating her case. The Appellant raised a number of points and one of the points was that there was no breach of contract and no genuine pre-estimate of loss. The Appellant states that the Operator must provide a detailed financial appraisal which evidences the genuine pre-estimate of loss or damages in this particular car park for this particular contravention. The Appellant also states that the Operator cannot include their operational day-to-day running costs.

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 “failure to comply”. 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 e 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. 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.
I need not decide any other issues.
Accordingly, the appeal is allowed.
Sakib Chowdhury
Assessor