POPLA Decisions

hoohoo

bus driver v parkingeye, win on gpeol on pepipoo
http://forums.pepipoo.com/index.php?showtopic=83604&st=0&gopid=904682&#entry904682

13 December 2013

Reference xxxxxxxxxx

always quote in any communication with POPLA

bus_driver (Appellant)

-v-

ParkingEye Ltd (Operator)

The Operator issued parking charge notice number xxxxxx/xxxxxx arising out of the presence at The Range St Helens, on 25 August 2013, of a vehicle with registration mark xxxxxxx.

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 xx:xx on the 25 August 2013, a vehicle with registration mark xxxxxxx was recorded by Automatic Number Plate Recognition (ANPR) camera entering the car park at The Range St Helens. After 2 hours and xx minutes, at xx:xx, the same vehicle was recorded by the ANPR exiting the car park.

It is the Operator’s case that the terms and conditions of parking state that this is a 2 hour maximum free stay car park for customers only. As the Appellant stayed in the car park for longer than the maximum stay allowed, the Operator submits the parking charge was correctly issued.

The Appellant has raised several points in the appeal, however I will only deal with the point on which I am allowing this appeal on. The Appellant submits that the charge does not represent a genuine pre-estimate of loss. 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 vehicle being parked in the car park for longer than the allowed maximum stay. In this case, the Operator has stated that the charge is a genuine pre-estimate of the loss as they incur ‘significant costs in managing this 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. 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 staying in the car park for longer than the maximum stay allowed.

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 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

hoohoo

VCS loss on gpeol.

13 December 2013

[Mr Motorist] (Appellant)
-v-
Vehicle Control Services Limited (Operator)

Reasons for the Assessor’s Determination

ON 30 June 2013 at Robin Hood Airport the appellant was issued with a
parking charge notice for breaching the terms and conditions of the parking
site.
It is the operator’s case that the appellant stopped his vehicle in a no
stopping area. There is photographic evidence to support that there was
adequate signage at the site to inform motorists of the parking terms and conditions. There is also evidence from the operator’s automatic number plate recognition system which shows the appellant’s vehicle, registration number CST U£27, stopped in a no stopping area.

The appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although the operator has produced a breakdown of costs incurred, these do not substantially amount to a genuine pre-estimate of loss. I find that a large proportion of the costs listed by the operator do not stem directly from the alleged breach and therefore cannot be included in the breakdown of costs provided by the operator to establish a genuine pre-estimate of loss. Therefore I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.
Farah Ahmad
Assessor

BinkyStottom

I won my appeal recently too on the genuine pre-estimate of loss angle.

I got pretty much exactly the same email as hoohoo above me.

Coupon-mad

I see this was ParkingEye losing on no GPEOL yet again, BinkyStottom:

https://forums.moneysavingexpert.com/discussion/4767767

Can you add the full decision wording to your thread or to your post above, by editing it in?

Coupon-mad

APCOA beaten on no GPEOL which they didn't even bother to try to argue about:


http://forums.pepipoo.com/index.php?showtopic=84658


Reasons for the Assessor’s Determination

At [time/date], the operative observed a vehicle with [registration mark/location]. A parking charge notice was issued to the appellant’s vehicle for parking without displaying valid payment.

The operator’s case is that the car park is a pay and display car park and at the time the vehicle was observed, there was no valid payment. Payment was not made for the appellant’s vehicle until [time] which was after the parking charge notice was issued. The operator notes that it is the responsibility of the appellant to ensure that they have paid for parking prior to leaving the vehicle and as the appellant’s vehicle did not have payment for the entirety of his stay in the car park; 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 loss as he paid for parking using the pay by phone system and therefore the operator has not suffered a loss. The appellant states that the operator has not shown that they have the authority to issue parking charge notices to drivers parked in breach of the terms and conditions and additionally notes that there was no contract with the driver and the operator has breached the BPA Code of Practice as a reduced amount of 33% was offered, rather than the required 40% reduction.

Considering carefully all the evidence before me, although I appreciate that the signage is clear and clearly indicates the terms and conditions for parking, the appellant has raised the issue of whether the parking charge is a genuine pre-estimate of loss. From the wording of the signage on site, the charge appears to represent liquidated damages, which is compensation, agreed in advance; this means that the amount sought should represent the loss caused. 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 failing to purchase parking time. As a result of this, I need not decide the other issues raised by the appellant.

Accordingly, this appeal must be allowed.

ducatidaz

Well here it is, my victory over PE, or to be more precise a victory for all the members who have helped on this site.
My thanks go out to you, I couldn't have done it alone, you know who you are!
Surprisingly my appeal was not won on GPEOL but PE failing to provide that they even have a contract to issue parking charges at the Fistral Beach car park.
Hope this helps many more people give PE the Poke in the Eye it deserves!

PARKING ON PRIVATE LAND APPEALS

PO Box 70748 London EC1P 1SN 0845 207 7700 enquiries@popla.org.uk https://www.popla.org.uk


13 December 2013

Reference xxxxxx always quote in any communication with POPLA

(Appellant) -v-

ParkingEye Ltd (Operator)

The Operator issued parking charge notice number xxxxxx arising out of the presence at Fistral Beach, on August 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.


Reasons for the Assessor’s Determination

At xxxx, on August 2013, a CCTV automatic number plate recognition (ANPR) system recorded the Appellant’s vehicle entering the Fistral Beach 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 form longer than permitted.

The Appellant made representations stating his case. The Appellant raised a number of points and one of them was that the Operator does not have the legal capacity to enter into a contract with the driver of the vehicle or allege a breach of contract.

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 not produced any 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. Once the issue is raised by an Appellant, it is for the Operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.

The Operator has also submitted that according to the case of Fairlie v Fenton, the Operator has the right to enforce the contract in its own right. I must find that this does not address the Appellant’s submission that the Operator does not have the right to offer a contract at all.

Taking together all of the evidence before me, 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 need not decide any other issues.

Accordingly, I must allow the appeal.

2 13 December 2013

Sakib Chowdhury

Assessor


Good luck and Merry Christmas!
Ducatidaz

salmosalaris

Fairlie v Fenton rebutted now .
It's almost as if POPLA are picking off PE's arguments one by one. There again they are utter drivel

trisontana

A loss for Excel at the Peel Centre. GPOL:-

http://forums.pepipoo.com/index.php?showtopic=84921&hl=

hoohoo

http://forums.pepipoo.com/index.php?showtopic=85012

graaaaaant v CP Plus

Wins on gpeol

Interesting twist - CP Plus word letter as if they win - are they trying some new scam

kirkbyinfurnesslad_2

Wooo a different one here, makes a nice change from GPEOL......

It was Captial to Coast

Reasons for the Assessor’s Determination
It is the Appellant’s case that the parking charge notice was issued
incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any
evidence to show a breach of the conditions of parking occurred, nor any
evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.

Chris Adamson
Assessor