Looking to overturn PCN - after amateur initial response!

rico_ladiesman

Yep, submitted it.

Thanks so much for your help, it really is appreciated. Will check back once I receive the response & show you al the details!

Thanks again & I'll be back in touch!!!

Coupon-mad

Same as here so compare notes when the time comes:

https://forums.moneysavingexpert.com/discussion/comment/66814692#Comment_66814692

the rebuttal will need to be STRONG. We can help.

rico_ladiesman

Hi guys,

So response received from PPS below. I have photos and a whole host of other supporting information via e-mail. To say my blood was boiling after I first read it was an understatement.

Any help would be greatly appreciated on the response. Have a feeling the initial amateur response could come back to haunt me!


CASE SUMMARY – xxxxxxxxxxxxx
Background
This vehicle was issued a parking charge notice at 07:17 hours on the 16 October 2014 at our Devington Park permit holders only car park, Exminster as the vehicle had no valid permit on display.
The complainant states the parking charge exceeded.
Appeals Folder
The complainant stated in their initial appeal that they had swapped vehicles with an employee. The complainant states they deliberately parked along the driveway of Devington Park so as not to contravene the regulations regarding parking of commercial vehicles within the gates of Devington Park.
The complainant states they were not aware that the area they parked in was under the same regulations. They state they did not see the sign as it was dark when they parked.
The complainant says they had worked a 14 hour day and they did not think to place a permit in the vehicle.
We replied “Vehicles must be parked only in designated areas, with a valid parking permit clearly on display on the dashboard of the vehicle at all times. There was not a parking permit displayed in this vehicle and I therefore uphold our operative’s decision to issue this parking charge notice. It is your responsibility to make sure you have a valid parking permit on clear display in the windscreen of your vehicle at all times whilst at this site or any ‘permit holder only’ sites. If you do not clearly display a valid parking permit correctly when at this site your parking is not authorised. The signs either side of the driveway does state 'Private Drive' so therefore you do need to be authorised to be parked on the driveway”.
Nevertheless the complainant appealed to POPLA, stating that the charge is not a genuine contractual fee or genuine pre-estimation of loss. The complainant also states that there was no contract formed by the signage.
Conditions on Signage and Images Folder
The evidence that this vehicle had parked at this site without displaying a valid permit is in our “Conditions of Signage” folder and our “Images” folder. You will see that on the Devington Park signage, including the entrance signage it is clear that permits must be displayed at all times, particularly paragraph one which states all vehicles, including motor cycles, must display a valid parking permit on dashboard or front windscreen at all times including the Avenue.
The terms and conditions of parking are highlighted in the “conditions on signage” folder confirming that they have not parked in accordance with the advertised terms and conditions, as per the warning signs throughout the site. The onus is on the driver to park in accordance with the advertised terms and conditions when they park. Signage is very clear. The entrance sign quite clearly states “Devington
Park – Private Drive”. You will see in our “Images” folder that the vehicle does not have a valid permit, the complainant does not dispute this.
The complainant also states that the signs fail to form a contract and there is a lack of clear and illuminated signage along the drive. You will also see that some of the signs have a light above them which are lit at dusk, and the complainant states that he has lived at Devington Park for some 3 years and would know the terms and conditions of parking. We have attached in our “Other Evidence” folder enforcement rules and examples of the permits sent out to all residents.
Parking Charge Notice
As such enforcement action was correctly undertaken as per the advertised terms and conditions with the correct due process. An electronic copy of the PCN is contained within this folder. Our attendants can only examine a vehicle in the condition in which it is left at the time.
The complainant states that the charge is not a genuine contractual fee. You will see in our “Condition of Signage” folder that the signs quite clearly states “Warning, Contractual Agreement” and lists the terms and conditions of parking and what the parking charge would be where the contract terms are breached.
The complainant also states that the charge is not a genuine pre-estimation of loss.
What Parking Charge Notices Represent
The Parking Charge Notices that we issue represent liquidated and ascertained damages. When a motorist parks in breach of the Terms and Conditions of Parking, we incur a loss because incorrect parking prevents the efficient management of the car park. The amount of the Parking Charge Notice represents a genuine pre-estimate of the additional expense incurred by us as a result of this.
Exceeded the Appropriate Amount
It will be seen that the charge of £100 reduced to £60 if paid within 14 days is within the prescribed guidelines issued by the British Parking Association, our governing body. The charge is in accordance with the Protection of Freedoms Act 2012. The complainant has not offered any evidence as to why the charge exceeded the appropriate amount. Additionally this charge has not been paid either in whole or part.
Pre estimation of Loss
The genuine pre-estimation of loss set out below refers to costs that we estimated, at the time of issuing the PCN, may be incurred for this individual appeal only. These same headings have been applied previously to other POPLA appeals, each with their own specific costs.
DVLA Fees / Processing Costs for this appeal. While the DVLA charge
£2.50 we use a third party supplier to obtain keeper details on our
behalf and this obviously carries a cost. 5.00
Admin Expenses for this appeal: Stationery 1.00
Postage 3.00
Printing 1.50
PPS sell permits to the client at £1 per permit. By a motorist parking their
vehicle at this permit only parking site, without a valid permit on display
they are creating a loss to PPS of that £1 for that permit which could have
been sold for a driver to park in the area which has now been taken. 1.00
Additionally PPS take a commercial decision to enter into a contract with the
landowner / leaseholder or managing agent of the site. This incurs costs as
detailed further on in this document with regards to signs, site
installations, sign maintenance and patrol cost etc. These latter costs are
incurred by PPS as a commercial decision to honour the contractual agreement
that they have with the landowner / leaseholder or managing agent of the site.
An initial loss will be incurred by PPS if they do not maintain the parking
terms and conditions as clearly laid out and advertised on signage throughout
the site and as agreed with the landowner / leaseholder or managing agent of
the site whether it be via the inability to sell additional permits or by not
maintaining good order within the site which encourages inconsiderate parking
which does result in the loss of control and spaces within the car park and
the risk of a knock on effect causing further problems and obstructions. The
risk clearly to PPS is that if PPS do not honour the contractual agreement
by enforcing parking regulations as clearly advertised on signage, the
contract will be cancelled by the landowner / leaseholder or managing
agent of the site, thus causing a loss to PPS of £2.50 per day per vehicle. 2.50
Attendant, administration staff and POPLA Appeals staff wages and salaries
including Employers National Insurance Contributions for this appeal:
Attendants (PCN recording and issuing) for this appeal 2.60
Admin Staff 1 hour (call handling / answering initial appeal by the driver
direct to PPS). Our administrative staff deals with initial
telephone calls and the first appeal received from the driver direct to PPS.
To be clear, this initial appeal handling is wholly separate from the
POPLA appeals handling as detailed below, the costs
of which are wholly separate to and in addition to those incurred at the
initial appeal by the driver stage. 9.51
Appeals staff at 3 hours
When a POPLA appeal is received it is handed over to our POPLA
Appeals Manager and Office Manager to deal with.
Our Office Manager compiles all the evidence, photographs,
contracts etc which is, when the PCN is first issued, put
onto our Zatpark system which enables the admin staff to follow the
progress but cannot be sent to POPLA in this form. The Office
Manager then sets up a unique folder which allows us to send
our Evidence pack in the format required by POPLA.
This will take at least half an hour. 14.23
The POPLA Appeals Manager then reads the POPLA appeal, makes notes,
reads all the evidence that has been compiled and then researches any
specific points that has been raised by the complainant
(i.e. Planning permission requirements, POFA requirements etc) and then
writes a Case Summary. This is the first time the POPLA Appeals Manager
has seen this appeal and therefore needs to be thorough in her examination
of all the facts. This can take between 2 hours and 5 hours depending on
the complainant’s appeal. As a low pre-estimate we have averaged this out at
2.5 hours. The POPLA Appeals Manager will also deal with any further
evidence submitted by the complainant after they have received our
Evidence pack. 57.42
Legal, Accounting and IT advice for this appeal 1.07
Total Genuine Pre-estimation of Loss for this appeal. 98.83
The business model as described above is fair and reasonable and contains simply a manager to collate, a POPLA manager to investigate, research and prepare the case summary.
The Appeals process is long, complicated and arduous and the same business model as referred to above is used in all parts of our business.
Background Information:
It is often presumed by many motorists, including the complainant in this POPLA appeal that there are no costs (and therefore loss) incurred to the operator when issuing, administering and collecting the charges involved when issuing a PCN.
There is a long and detailed process put in place to enforce parking T&Cs at a parking site, which if were not undertaken would lead to a loss of control of the car park, where vehicles park without consideration to others and/or block access routes etc, a loss of revenue where drivers did not or forgot to pay, or the failure to keep allocated bays (for example disabled parking bays) available for those in the most need of it. If the vehicles using our P&D car parks extended their stay by just 10 minutes without paying the associated tariff we would lose revenue in access of £100,000 pa which would not be sustainable to us as a company or an acceptable loss to our clients.
Enforcement and the issue of PCNs is recognised as asset protection and as the principal or lease holder of the site it is incumbent on us and part of our contractual responsibility to manage the facility to the best of our ability in order to either generate the maximum amount of revenue possible for the land owner or lease holder or to keep our clients allocated parking clear of fly parkers and for the actual use
of those who are entitled to park, be it an office allocated parking area, a retail park or a persons individual parking space or drive way.
As previously alluded there are a number of costs incurred in the continuous enforcement process that are a necessity in making sure drivers adhere to the parking T&Cs advertised and the chasing up of any outstanding and unpaid PCNs. These include:
• Wages and Salaries including Employers NI Contributions - This is for the time it takes an attendant on the ground who patrols the car parks, having once identified a contravention, to initially issue and record the PCNs and document, photograph and make notes of the transgression. We currently employ 10 attendants. We estimate that on average an attendant spends 15 minutes recording and issuing a PCN. The back office staff who manually check the issue of a PCN, examine and answer an initial appeal, take telephone questions or queries with regards to the issue of a PCN and take phone payments for the PCN, we estimate that it takes between 1 and 1.5 hours for the admin staff to take these calls per appeal, examine an appeal (which are often multiple) and compile the response to that appeal. It includes the cost of managers to examine a POPLA appeal, the compiling of a POPLA evidence pack, the writing of an appeal reply and the submission of the same and the answering of any further evidence submissions. It is estimated that three and a half hours of managers’ time are taken to compile the POPLA evidence pack for submission but does not include any detailed appeal replies such as those to an MP and we have 10 dedicated car parking attendants and two dedicated appeals members of staff. Please see Genuine Pre-estimation of Loss statement above for a more detailed description of staff duties
• Legal, Accounting and other Professional Advice, as from time to time we need to take advice and guidance from our appointed advisors to ensure an appeal is dealt with correctly.
• Print, Postage and Stationary costs are incurred for any responses to an appeal which often number in 2 and 3 replies and not just a single response.
• DVLA Fees / Processing Costs - These are fixed costs to us at present at £5 per DVLA search via our appointed DR Company.
Therefore contrary to the assumption of many motorists financial losses to the company are directly incurred as soon as a contravention to the terms of parking as advertised is made and a PCN is issued.
With regards to justifying the amount of the PCN the considerable costs of dealing with an individual appeal demonstrate that there is a large cost (and therefore loss) to us as a company and we are therefore justified in the amount of PCNs to cover these not inconsiderable costs.
At present we are limited by the British Parking Associations Codes of Practice and the Protection of Freedoms Act 2012 as to what the level of a PCN can be charged. We chose on a business case, mindful of the costs incurred above, to levy a PCN of £100 reduced to £60 if paid within 14 days. Often it is the case that we incur charges in excess of £100 but this additional cost has to be then subsidised from other parts of our business.
It has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on parking and the driver cannot claim that there are any trading standard or unfair consumer regulation breaches as they have accepted the conditions on parking and as you will see below these charges have been held to be fair and reasonable.
On accepting the parking conditions we argue that the complainant cannot now in effect renegotiate this. The charge of £100 reduced to £60 is as advertised and within BPA guidelines and in accordance with the protection of Freedoms Act 2012.
Last October after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass from £150 to 100. Despite the BPA being unable, due to prevailing OFT legislation, to fix prices at this level, the actions of the Association were welcomed by all stakeholders. In this instance the charge being levied is within (well within) the recommendations set out within Clause 19 of the BPA Code of Practice.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner or his agent of the site. We are the primary at this site for car park management services.
Parking Charges are fair and reasonable, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of Parking Eye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007). Further evidence, that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]
In the POPLA evidence pack we have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for not complying with the advertised terms and conditions. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely, and on which the motorist has agreed to be bound by which will become payable if the terms and conditions of parking are not met.
We would contend that it is too late now to indicate that they are unhappy with the parking charge – this should have been done at the time of accepting the ‘parking contract’ - if the motorist was unhappy
with the contract terms, they should not have remained at the location. Our telephone number is on signage across the site should drivers have any questions or queries.
We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons.
We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in dealing with an appeal to ensure compliance to the stated terms & conditions and to follow up on any breaches of these identified as detailed above.
A genuine pre estimation of loss is just that, a genuine attempt to estimate the costs (and therefore loss) incurred for each PCN issued given the significant costs incurred conducting an appeals process.
The costs above for parking charge, number 1032841 in this instance was established after consideration of the loss which we incur on the ticket issued and these headings below are as per Mr Henry Michael Greenslade’s, POPLA Adjudicator, ruling on 18 November 2013, Point 43, against Parking Eye Ltd as to what constitutes genuine pre-estimation of loss.
I quote Mr Greenslade’s determination of what constitutes a genuine pre-estimation of loss:
“Each appeal will always turn of its own facts but both parties should be clear that a genuine pre-estimate of loss need not be a detailed estimate for each particular case. It is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred. However, it cannot include sums that are really the general business costs of the Operator’s car park services operation.”
“DVLA and associated fees for obtaining keeper details: clerical costs there arising, including stationery and postage; legal and other professional advice; wages and salaries involved in that (which may be relatively substantial), together with national insurance and similar related sums; the fee lost by another vehicle not being able to park in the occupied space (where there is a fee); and even loss of revenue at the retail outlet for which the parking is provided, do if established, fall within a genuine pre-estimation of loss. This list is not exhaustive but strongly indicative of the kind of items that could amount to such a genuine pre-estimate”.
It can be seen from the detailed list of costs above, a lot more goes into the issue of a PCN than is detailed here.
As stated above “A genuine pre estimation of loss is just that, a genuine attempt to estimate the costs incurred for each PCN issued”
The complainant also states that we have no legal status nor assigned right to pursue parking charge notices in the courts or to make contracts with the drivers.
Witness Statement
The complainant states that we have no authority to issue PCNs on behalf of the landowner, the landowners held a meeting for all the residents explaining the new parking regulations and therefore the complainant would be aware of the authority given to us by the landowner. We have also attached a list of “do’s” and “don’t” for parking at this site which was sent to all residents. The complainant has asked for a copy of our contract with the Landowners. Obviously this contains highly confidential information and while we would be happy to provide POPLA with a copy of our contract we would not wish it to be put within the public domain. Therefore please see the Witness Statement in our “other evidence” folder showing we have full authorisation and legal standing to manage, control and enforce, as Principal, at this site by way of a contract with the landowner. We have also attached a site plan showing the extent of the site.
Registered Keepers Details
These have not been applied for as the complainant has indicated they were the driver. Should this change we will apply for registered keeper’s details accordingly.
Other Evidence
Photographs of current valid permits along with enforcement rules
Witness statement.
Site Plan of the entire site
Sue Blacksmith
POPLA Appeals Manager 3 November 2014

ezerscrooge

Pull their No GPEOL apart and e-mail it the rubutal to POPLA. Here's a starter for 10...

DVLA Fees / Processing Costs for this appeal. While the DVLA charge £2.50 we use a third party supplier to obtain keeper details on our behalf and this obviously carries a cost. 5.00

yet at the end they state...

Registered Keepers Details
These have not been applied for as the complainant has indicated they were the driver. Should this change we will apply for registered keeper’s details accordingly.

Coupon-mad

I think as the vehicle wasn't in the car park, the signage could be your winning point maybe? (it's such a shame you admitted you were driving as I think they could win this one, as there was an initial loss of £1 permit cost). Not that you should pay up if you lose at POPLA it's no biggie and wouldn't change the points in a decent court defence if they tried a small claim.

Anyway I saw this sort of thing to pick out, re a rebuttal about the signs:

''This vehicle was issued a parking charge notice at 07:17 hours on the 16 October 2014 at our Devington Park permit holders only car park, Exminster''

A= No it wasn't, point out to POPLA as a matter of fact the vehicle was NOT within the car park.

''The signs either side of the driveway does state 'Private Drive' so therefore you do need to be authorised to be parked on the driveway”.''

A = That does not follow at all. The words 'Private Drive' mean nothing whatsoever in relation to any contract or charge or permit or restriction, and are different from the signs in the actual car park.

''Conditions on Signage and Images Folder
The evidence that this vehicle had parked at this site without displaying a valid permit is in our “Conditions of Signage” folder and our “Images” folder. You will see that on the Devington Park signage, including the entrance signage it is clear that permits must be displayed at all times, particularly paragraph one which states all vehicles, including motor cycles, must display a valid parking permit on dashboard or front windscreen at all times including the Avenue.*
The terms and conditions of parking are highlighted in the “conditions on signage” folder confirming that they have not parked in accordance with the advertised terms and conditions, as per the warning signs throughout the site. The onus is on the driver to park in accordance with the advertised terms and conditions when they park. Signage is very clear. The entrance sign quite clearly states “Devington Park – Private Drive”.

A = The Operator admits the Avenue (in contrast to the differently-signed car park) only has signs saying 'private drive'. PPS' own evidence shows this particular signage did not create any contract whatsoever due to the place where the vehicle was parked, which was NOT within the car park. So the pictures of the car park signs within the gates of Devington Park are irrelevant. There is no permit requirement signed in the Avenue, and even if there was a 'private drive' sign, it was not lit, so cannot be read in the dark, whatever it states. I parked when it was pitch black at night and the onus is on the Operator to ensure signs with full terms and conditions are along the drive, and lit, if they want to extend the car park permit restrictions to that place.

Re the bit I have marked in red, does the entrance sign say 'including the Avenue'?

Have they included a 'site map' showing where the signs are and does it show 'the Avenue'? Does it show exactly which signs are where? If unclear or wrong, then point that out to POPLA.


Re the GPEOL calculations. I agree you should point out there was no DVLA look-up. This is in common with at least a third of PCNs which across the industry are known to be appealed early, like yours, so they can't charge £5 for every PCN.

I would rebut the GPEOL blow by blow, saying:

Industry figures show that around 40% are not appealed/or are paid up front and therefore only those particular cases have to include a DVLA look-up. So the cost can be included in a GPEOL only on a pro-rata average basis (not the full £5 in the GPEOL, but 40% of it).

SO REMOVE £3 FROM THE CALCULATION.

Moreover, it is clear that PPS have included the wages & NI of an employed 'car park attendant':

''Wages and Salaries including Employers NI Contributions - This is for the time it takes an attendant on the ground who patrols the car parks, having once identified a contravention, to initially issue and record the PCNs and document, photograph and make notes of the transgression. We currently employ 10 attendants. We estimate that on average an attendant spends 15 minutes recording and issuing a PCN.''

Well this is a residential car park and PPS have not shown who issued the ticket; this could have been a matter of self-ticketing, so you put PPS to strict proof to the contrary. Their listing on the BPA AOS members page shows they do offer self-ticketing, and a mere 10 attendants does not show that one of those attendants was at this site on that morning, bearing in mid PPS have many more than 10 car parks they infest. You believe there was no PPS staff cost for ticketing the vehicle - and in any case their attendants are paid a salary anyway, not paid by PCNs issued.

SO REMOVE £2.60 FROM THE CALCULATION AS THIS COST DID NOT FLOW FROM THE PARKING EVENT.

In addition, they have included £9.51 for 'Admin Staff 1 hour : call handling / answering initial appeal by the driver'. Again only about a third of PCNs across the industry are appealed (many more are ignored, and many are paid up front by scared victims who haven't a clue that this is not a real parking ticket). So they cannot include in a 'GPEOL calculation' the full hour that they might suggest an initial appeal takes their staff. In my case I sent a simply email and they replied by email so there were no phone calls and no 'investigation, and they sent a template response already written as a standard email reply (seen before in the public domain). This did not take anything like an hour and even if an average 'appealed case' does take that time, then all PCNs cannot include that full hour because two thirds are never 'appealed cases'. So even assuming an average of an hour is actually spent on a third of cases, then a third of £9.51 = £3.17 is the true allowance for this process as a GPEOL.

SO REMOVE £6.34 FROM THE CALCULATION.

Then there is a duplication of staff time which is 'quality control' and cannot be included as a likely cost in a GPEOL:

''When a POPLA appeal is received it is handed over to our POPLA
Appeals Manager and Office Manager to deal with.
Our Office Manager compiles all the evidence, photographs,
contracts etc which is, when the PCN is first issued, put
onto our Zatpark system which enables the admin staff to follow the
progress but cannot be sent to POPLA in this form. The Office
Manager then sets up a unique folder which allows us to send
our Evidence pack in the format required by POPLA.
This will take at least half an hour. 14.23''

But only 1% of cases go to POPLA. 99% of cases do not. So it cannot be in the reasonable contemplation of the Operator when calculating a GPEOL that this 'staff time for POPLA' is likely to arise - POPLA cases are the tiny minority. 1% of £14.23 is 14 pence which is the true average likelihood of this process being incurred.

SO REMOVE £14.09 FROM THE GPEOL CALCULATION

Then there is the duplicated staff costs for a POPLA Appeals Manager 'checking' the work of the 'Office Manager', which is quality control and duplication:

''The POPLA Appeals Manager then reads the POPLA appeal, makes notes,
reads all the evidence that has been compiled and then researches any
specific points that has been raised by the complainant (i.e. Planning permission requirements, POFA requirements etc) and then writes a Case Summary. This is the first time the POPLA Appeals Manager has seen this appeal and therefore needs to be thorough in her examination of all the facts. This can take between 2 hours and 5 hours depending on the complainant’s appeal. As a low pre-estimate we have averaged this out at 2.5 hours. The POPLA Appeals Manager will also deal with any further evidence submitted by the complainant after they have received our Evidence pack. 57.42''

If it takes between 2 and 5 hours of the POPLA Appeals Manager's time to check their work, then as an observation, someone should sack the Office Manager! However, if this is the case then PPS are completely wrong to 'average this out at 2.5 hours' and add on the full £57.42 to all PCNs. Only 1% of cases go to POPLA so a GPEOL can only allow 1% of this cost if POPLA is minded to even allow this checking at all. 1% of £57.42 is 58 pence, rounded up.

SO REMOVE £56.84 FROM THE CALCULATION


P.S.
If Sue Blacksmith - the sad PPS puppet who really needs to find a real job with some self-respect, giving something back to Society like most of us law-abiding folk do - sent this out to you and POPLA on 3rd November you are very late submitting a rebuttal so get it emailed to POPLA by Sunday at the latest!

rico_ladiesman

Hi ezerscrooge, ampersand & coupon-mad,

Check the response below.

Thanks so much for your help - couldn't have done it without you :beer:

Another result, some discord at the estate board meeting has resulted in PPS being removed from duty - I now have the unusual privilege of parking at my home without fear of ticketing! Unfortunately it means I can't demonstrate my absolute contempt in a terribly British way by scowling at the PPS warden when I walk my dog at 6 each morning.

:rotfl::money::T:j

Thanks again!!!!

Rich




03 December 2014
Reference 6862654003
always quote in any communication with POPLA
Rich (Appellant)
-vPremier
Parking Solutions Ltd (Operator)
The Operator issued parking charge notice number xxxxxxxxxx arising out
of the presence at Devington Park, on 16 September 2014, 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.xxxxxxxx 2 03 December 2014
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.
The Appellant does not dispute that the terms of parking were clearly
displayed, or that he failed to display a permit on this occasion.
It is the Appellant’s case that:
a) The parking charge does not represent a genuine pre-estimate of the
loss which could have been caused by the alleged breach.
b) The Operator does not have sufficient authority to issue a parking
charge notice in relation to the land in question.
c) There was insufficient signage on site to bring the terms of parking to
the attention of motorists.
The parking charge must be an estimate of likely losses flowing from the
alleged breach in order to be enforceable. Where there is an initial loss
which may be caused by the presence of an appellant’s vehicle in breach of
the conditions (e.g. loss of revenue from failure to purchase a Pay & Display
ticket) this loss will be recoverable. Provided an initial loss can be
demonstrated, any consequential losses incurred in pursuing that initial loss,
such as issuing the parking charge notice and staff costs involved in
responding to subsequent representations, may also be included in the any
pre-estimate of loss. In certain situations, such as where the breach involves a
failure to pay a tariff, this initial loss will be obvious. Where it is not obvious, it is
for the Operator to demonstrate this initial loss when providing its pre-estimate
of loss. This initial loss is fundamental to the charge and, without it, costs
incurred by issuing the parking charge notice cannot be said to have been
caused by the Appellant’s breach. The Operator would have been in the
same position had the parking charge notice not been issued.
The Operator detailed its likely losses following issue of a parking charge
notice. Whilst these heads of loss do not seem to include general operational
costs, there is nothing before me to show there was any initial loss. The
Operator has not demonstrated the potential loss which may have been
caused initially by the Appellant’s failure to display his permit. xxxxxxxx 3 03 December 2014
I note the Operator’s submission that permits are sold at £1 and so this
represents the initial loss; however, there is no dispute that the Appellant did in
fact possess a permit. Permits are not analogous with pay and display tickets
which are bought for an individual stay and represent proof of purchase. In
this case the Appellant was a permit holder and so there was no loss in
relation to the permit. The Operator has provided no other evidence of any
initial loss.
Therefore, taking together the evidence before me, I cannot find that the
Operator has demonstrated that the parking charge represents a genuine
pre-estimate of loss.
Accordingly, I must allow the appeal.
I need not decide any other issues.


Christopher "My favourite and most awesome person in the whole world right now" Adamson.
#legend

ampersand

Well done! and Thankyou Rich,[do you want to remove that surname from popla decision heading?]
#
Your attitude throughout has been spot on - Merry Crimbola. You achieved an often impossible thing in mobilising others to attend that estate board mtg! Impressive indeed:-)

Coupon-mad

''03 December 2014
...there is nothing before me to show there was any initial loss. The Operator has not demonstrated the potential loss which may have been caused initially by the Appellant’s failure to display his permit. I note the Operator’s submission that permits are sold at £1 and so this represents the initial loss; however, there is no dispute that the Appellant did in fact possess a permit. Permits are not analogous with pay and display tickets which are bought for an individual stay and represent proof of purchase. In this case the Appellant was a permit holder and so there was no loss in relation to the permit. The Operator has provided no other evidence of any initial loss.''

I like that bit.

Can you remove your name from the decisions but instead show the POPLA code now you are safe, now you have won. Then we can quote Chris Adamson's words in your case, to help newbies in future.


Well done!

rico_ladiesman

Done & Done

trisontana

I still don't get this statement :-

Provided an initial loss can be
demonstrated, any consequential losses incurred in pursuing that initial loss,
such as issuing the parking charge notice and staff costs involved in
responding to subsequent representations, may also be included in the any
pre-estimate of loss.

Surely they are paying their employee's wages anyway and unless they pay them an extra bonus each time they process a claim, there are no extra "staff costs" (or should that be losses?)