POPLA Decisions

parkingfinemagnet

Think I'm supposed to post this here but apologies if not.
Thanks again to the forum guys for my helping me get my POPLA allowed. Here are the details:

Reasons for the Assessor’s Determination
It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘No valid ticket or permit displayed’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
It is the Appellant’s case that:
a) Neither the Operator nor the landowner has the appropriate planning permission for this land.
b) The Operator does not have sufficient authority from the landowner to issue parking charge notices in relation to this land.
c) Signage on site was insufficient, and so there was no contract formed between the parties.
d) The parking charge does not reflect a genuine pre0estimate of the loss caused by the alleged contravention.
e) The amount required for the day had been paid, and the ticket
displayed on the dashboard.
The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’. Accordingly the Operator submits that it need not reflect the loss caused by the breach.
In this case, I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park without a valid ticket. In other words, the sign must permit the motorist to park without a ticket, provided he or she pay the charge. In this case, the wording of the sign states that a parking charge notice would be issued, “If you park in this car park contravening the terms and conditions listed below”.
Clearly, permission to park without a ticket is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach.
The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss.
I do not accept this submission. Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made.
Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits. It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated.
Accordingly, I must allow the appeal.
I need not decide any other issues.
Chris Adamson
Assessor

Redx

for info ^^^^^^^^^^^ relates to http://forums.moneysavingexpert.com/showthread.php?t=4854037&page=2

Premier Parking Solutions at Hull port

Oils

I won my popla appeal against excel parking peel centre stockport. Thanks for everyone's help on here. My thread is headed 'Excel parking stockport non statutory route' should you want to use any of the wording or read the advice I got. My appeal decision wording is below.

Reasons for the Assessors Determination

It is the appellants 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 we have no option but to allow the appeal.

Shehla Pirwany
Assessor

Dog_Meadow

Woohoo! I won the appeal!!

Thank you SO MUCH for your help - particularly to Coupon-mad who offered such excellent templates to copy. Redx and Umkomaas - thank you also for such patience and clarity with your information and advice.
Thank you thank you thank you!!!!!

From the appeal letter it states that:
"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.

Shehla Pirwany"


Parking Eye were the 'aggressors'.
It was at a 'free' car park in Oxford associated with a few shops, including Next, M&S, Mothercare, etc.
I exceeded the 3 hour parking without having any clue that there was a time limit, let alone a ridiculous fine attached. I have used the shopping area for years and never noticed signage or cameras.
I did not have any evidence that I was shopping there as I paid for my goods in cash - and anyway, no person should be obliged to buy, let alone keep evidence, when shopping somewhere.

Here below is the letter that I pretty much copied from CouponMad's template:

Dear POPLA Assessor,
Re: ParkingEye fake PCN, verification code XXXXXXX

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. Notwithstanding that we were genuine customers of the principal Marks and Spencer and the passenger paid for goods in the store with cash, I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkingEye notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that ParkingEye charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

No doubt ParkingEye will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic 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. 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.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contracts with drivers
Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. I note that the ParkingEye has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in.
Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3) Flawed landowner contract and irregularities with any witness statement
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require ParkingEye to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

Indeed I submit (and as I have raised the issue, ParkingEye must now disprove) that their Contract or User Agreement with Marks & Spencer (and the other stores connected to that parking area) is likely to contain a secret 'genuine customer exemption' clause which in fact exempts Marks & Spencer (and the other stores connected to that parking area) customers like us from these spurious charges. Not only have ParkingEye not allowed my initial appeal that the driver and passenger were genuine Marks & Spencer customers, but at the outset, when they allege a contract was formed, (which is denied) ParkingEye failed to alert the driver to that secret clause. Which leads me to the next point:

4) Breach of UTCCR 1999 and CPUTR 2008
I contend that a secret term which leaves a customer at a severe disadvantage as they are unaware of it, is a 'wholly unreasonable' contract term and a 'misleading omission' which is in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection from Unfair Trading Regulations (CPUTR) 2008. ParkingEye are taking unconscionable advantage of myself by demanding a 'charge' for alleged 'breach', holding me liable and yet not informing the driver at the point of any alleged contract, about the secret exemption clause that I believe exists in their contract with Marks & Spencer (and the other stores connected to that parking area). Nor did they refer to it when rejecting my appeal which told them that we were customers who were delayed by illness in the store. Parking Eye as agents, have no lawful excuse to pursue this wholly unfair and disproportionate charge when I believe their own contract with the retailer specifically allows paying customers to be exempt. Parking Eye are seeking to impose punitive sanctions that are not required at all by any 'legitimate interest of the principal'.

CPUTR 2008 Part 2, Prohibitions
Misleading omissions
6(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a)the commercial practice omits material information,
(b)the commercial practice hides material information,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness
''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

If they refute this then Parking Eye must explain their position to POPLA, produce the unredacted section of the contract and/or User Manual and show how they consider they can override the express wishes of the principal when Parking Eye are mere agents. And explain how their secret 'exemption clause' meets the test of fairness if they do not share it with the party they hold liable. Such terms must be in the signage they are relying upon to have formed the alleged contract at the outset.

5)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car, who were there at the invitation of Marks & Spencer (and the other stores connected to that parking area), to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

6) ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.


I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.

Yours faithfully,

THE REGISTERED KEEPER
XXXXX XXXX

trubster

Well, I am not allowed to mention the evidence pack, but it clearly was not good enough for POPLA!

Decision in my favour as expected. They seemed so sure I was wrong and they were right.

Trubster (Appellant)
-v-
Euro Car Parks Limited (Operator)




The Operator issued parking charge notice number 8888xxxxxxx arising
out of the presence at Ravenside Retail Park, Chesterfield, on
xx/12/2013, 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 Xth December 2013, a vehicle with registration mark AB12 CDE
was recorded exiting the Ravenside Retail Park- Chesterfield after a stay of X
hours and X minute. The car park is a 2 hour maximum free stay car park and
therefore as the appellant had parked in excess of the maximum free stay
period, a parking charge notice was issued.

The operator’s case is that the signage in the car park clearly states that there
is a maximum stay period in operation at the car park and therefore as the
appellant had parked in excess of the permitted period, 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
and is an unenforceable penalty. The appellant states that they are covered
by the Equalities Act and the operator has a duty to make reasonable
adjustments. The appellant additionally states that the operator has failed to
show that they have permission from the landowner to issue parking charge
notices.

Considering carefully all the evidence before me, the operator has stated
that the charge is liquidated damages, which is compensation agreed in
advance. This means that the amount sought should represent the losses
incurred as a result of the breach. Although the operator has provided a
breakdown of the losses incurred, I am not satisfied that the individual items
listed in the breakdown are substantially linked to the losses incurred by the
appellant’s breach. It is also noted that the operator has failed to estimate
the amounts associated with each of the items listed and therefore on a
balance of probabilities, I am not satisfied that the operator has sufficiently
shown that the charge is a genuine pre estimate of the losses incurred as a
result of remaining in the car park in excess of the maximum permitted stay.
As a result, I need not decide any other issues raised by the appellant.

Accordingly, this appeal must be allowed.


Shehla Pirwany
Assessor

Case detailed here - http://forums.pepipoo.com/index.php?showtopic=86375

Very funny popla appeal - the key word Slam Dunk seemed to upset the operator.

Aaron_Aadvark

A new sucessful ground of appeal.

Not relevant land (Town Quay, Southampton).

http://forums.pepipoo.com/index.php?showtopic=71684

Also on Pranky's blog.

TalkGirl_uk

Whoopeee!! Not surprisingly I won my case against CP Plus on grounds that they failed to provide a breakdown of the genuine losses. Thank you for everyone's help.

Info submitted can be found here: http://forums.moneysavingexpert.com/showthread.php?t=4857786&page=3

POPLA reply as follows...

Reasons for the Assessor’s Determination

At 18:13, on December 12 2013, a CCTV automatic number plate recognition (ANPR) system recorded the Appellant’s vehicle entering the Roadchef, Maidstone.

The Operator’s case is that the Appellant breached the car parking conditions by exceeding the free parking period at the site.
The Appellant made representations stating her case. One of the points raised by the Appellant was that the amount claimed is a no a genuine pre-estimate of loss.

The operator has submitted that charges have been held to be enforceable in previous cases, however, the operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre-estimate of the loss caused in every car park.

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, these appear to be general operational costs, and not losses consequential to the Appellant’s breach.

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 in order to tip the balance in its favour.

In this case the Operator has not provided any evidence as to why this charge in a genuine pre-estimate of loss. I am not minded to accept that it is sufficient to simply list a previous case without applying them to this case.

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

trisontana

VCS throw in the towel again - Humberside airport:-

http://forums.pepipoo.com/index.php?showtopic=88565&hl=

VCS did not submit any evidence to POPLA to contest this appeal. The reasons given for the POPLA assessor's determination were given as: "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."

Aaron_Aadvark

Can we please keep this thread clear of discussion?

This thread

http://forums.moneysavingexpert.com/showthread.php?t=4907505&highlight=popla+strategy

can be used for general discussion.

Thanks:)

retep53

MY own case on:
http://forums.moneysavingexpert.com/showthread.php?t=4830272##

Reproduced below:

Dear Sir or Madam

retep53 (Appellant)
-v-
Euro Car Parks Limited (Operator)

The Operator has informed us that they have cancelled parking charge notice number XXXXXXXXXXXXX, issued in respect of a vehicle with the registration mark XXXXXXX .

Your appeal has therefore been allowed by order of the Lead
Adjudicator.

You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.


Yours sincerely,
Richard Reeve
Service Manager