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to pay or not to pay
sach1636
Posts: 22 Forumite
Dear boarders,
This is a wonderful forum and thanks a ton in advance for any new help.
Starting new thread as per advise.
I need advise if I should appeal or pay up to PTL. It is bit unfortunate in my case as I am landlord who had parked vehicle in allocated parking space.
My appeal needs to be submitted before 23rd so speedy response would be much appreciated.
_____________________________________
My appeal below:-
I am appealing as keeper of vehicle with registration no xxxx against liability of parking charge issued by parking eye with POPLA appeal reference xxxxxxx
Situation:-
- xxx is a quite residential area, away from any traffic
- I am registered keeper of the said vehicle & was parked at the allocated parking bay.
- After a long trip, I had just arrived and went to home to get my parking permit. In few minutes (roughly 10 minutes) I was not with my car, I was charged a parking charge notice.
- I am registered carer and in this situation I was caring for someone which resulted in delay of few minutes reaching back to my own car parking space.
My grounds for arguments,
1. Vehicle was parked correctly.
2. PCN is not a genuine pre-estimate of Loss.
3. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
4. Details of standing authority not provided.
Details:-
Vehicle was parked correctly.
Vehicle was in allocated parking bay. This parking space is allocated to me.
I have submitted evidence to operator with details of parking permit soon after seeing PCN on my car.
Since vehicle is in allocated bay it was not causing any inconvenience to others.
Not genuine prestimate of loss.
Parking charge of £100 is unfair for 10 minute delay in reaching back to my car.
Parking Eye have not provided me with details of breakdown of cost, despite it being a prerequisite of Schedule 4 (see point #2).
The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same.
The Operator alleges '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. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges
In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.
An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.
Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’
In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.
This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
POPLA Assessor Chris Adamson has stated in June 2014 that:
''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
No keeper liability
This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'
The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.
Lack of sufficient details:-
Parking eye as operator have not provided details of contract copy with land owner.
Even if there is a contract, true objective of any restrictions should certainly be to limit unauthorized use of space. In my case I had submitted evidence of the authority in way of parking permit which proves I am legally allowed to park in my allocated parking space.
As a site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.
This concludes my POPLA appeal.
This is a wonderful forum and thanks a ton in advance for any new help.
Starting new thread as per advise.
I need advise if I should appeal or pay up to PTL. It is bit unfortunate in my case as I am landlord who had parked vehicle in allocated parking space.
My appeal needs to be submitted before 23rd so speedy response would be much appreciated.
_____________________________________
My appeal below:-
I am appealing as keeper of vehicle with registration no xxxx against liability of parking charge issued by parking eye with POPLA appeal reference xxxxxxx
Situation:-
- xxx is a quite residential area, away from any traffic
- I am registered keeper of the said vehicle & was parked at the allocated parking bay.
- After a long trip, I had just arrived and went to home to get my parking permit. In few minutes (roughly 10 minutes) I was not with my car, I was charged a parking charge notice.
- I am registered carer and in this situation I was caring for someone which resulted in delay of few minutes reaching back to my own car parking space.
My grounds for arguments,
1. Vehicle was parked correctly.
2. PCN is not a genuine pre-estimate of Loss.
3. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
4. Details of standing authority not provided.
Details:-
Vehicle was parked correctly.
Vehicle was in allocated parking bay. This parking space is allocated to me.
I have submitted evidence to operator with details of parking permit soon after seeing PCN on my car.
Since vehicle is in allocated bay it was not causing any inconvenience to others.
Not genuine prestimate of loss.
Parking charge of £100 is unfair for 10 minute delay in reaching back to my car.
Parking Eye have not provided me with details of breakdown of cost, despite it being a prerequisite of Schedule 4 (see point #2).
The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same.
The Operator alleges '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. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges
In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.
An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.
Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’
In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.
This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
POPLA Assessor Chris Adamson has stated in June 2014 that:
''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
No keeper liability
This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'
The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.
Lack of sufficient details:-
Parking eye as operator have not provided details of contract copy with land owner.
Even if there is a contract, true objective of any restrictions should certainly be to limit unauthorized use of space. In my case I had submitted evidence of the authority in way of parking permit which proves I am legally allowed to park in my allocated parking space.
As a site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.
This concludes my POPLA appeal.
0
Comments
-
You need a better version than that! GPEOL will not cut it any more against PE unless you show how this differs from the Beavis case.
DO NOT PAY! Why would anyone pay up at POPLA stage when they'll either win (probably) or lose and if that happens they'd have to pay the full amount. Any discount paid (or not) would not be enough anyway so there's really no point thinking about it.
So, remove stuff which says who parked!!
:eek:After a long trip, xx had just arrived and went to home to get my parking permit. In few minutes (roughly 10 minutes) xx was not with my car, xx was charged a parking charge notice.
Have a look at more up to date versions of POPLA appeals here on page 1/2. There's a Canvey Island one which shows you the headings and detail you need and how to distinguish your case from the Beavis case (albeit that one is a Pay and display car park so you'll need to change lots of the detail).PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Dear boarders,
This is a wonderful forum and thanks a ton in advance for any new help.
Starting new thread as per advise.
I need advise if I should appeal or pay up to PE. It is bit unfortunate in my case as I am landlord who had parked vehicle in allocated parking space.
My appeal needs to be submitted before 23rd so speedy response would be much appreciated.
_____________________________________
.
umm , you are the landlord , DID YOU HIRE THEM
Save a Rachael
buy a share in crapita0 -
I don't understand the bit about you being landlord.
Are you the landlord (landowner) of the land where you got the ticket?
If not, I don't understand the relevance of making that comment.
As C-M has pointed out, your appeal is very weak and should include, no standing to issue charges, not the landowner, and inadequate signage.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
pappa_golf wrote: »umm , you are the landlord , DID YOU HIRE THEM
That's the bit I don't understand hence my post above.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
yup we need an answer towhy the OP included the fact that he was the landlord.Save a Rachael
buy a share in crapita0 -
You need a better version than that! GPEOL will not cut it any more against PE unless you show how this differs from the Beavis case.
It could not be more different, OP is the de facto owner of the land.
OP, do not pay the a penny, they haven't a snowball's chance in hell of winning this in court, and may in fact be committing a criminal
offence under The Landlord and Tenants Act, and/or fraud/ obtaining monies by false pretences.
Your lease should grant you "quiet enjoyment" of your property and any attempt by your managing agents or their parking poodle almost certainly breaches that right.You never know how far you can go until you go too far.0 -
hi,That's the bit I don't understand hence my post above.
I meant to say that I am owner of aparment. I pay land rent every year as apartment is on leasehold.
Key point is that I was parked in my allocated parking space. I have also given evidence of same (although after PCN as during few mins I was not with my car they charged me
)
Thanks,0 -
You need to check your lease carefully and see exactly what it says about parking. Is it a parking space assigned to the specific property? Does the lease talk about permits (it won't)? Does the lease talk about "quiet enjoyment" of your property? Does it include a "catch-all" clause allowing the management company to impose additional regulations as and when it pleases (though even these have to be reasonable and must not conflict with any other part of the lease)?
Answers to those questions will potentially make the whole scheme completely unenforceable and allow you to tell the management company what they can do with PE (and it won't be polite).0 -
The_Slithy_Tove wrote: »You need to check your lease carefully and see exactly what it says about parking. Is it a parking space assigned to the specific property? Does the lease talk about permits (it won't)? Does the lease talk about "quiet enjoyment" of your property? Does it include a "catch-all" clause allowing the management company to impose additional regulations as and when it pleases (though even these have to be reasonable and must not conflict with any other part of the lease)?
Answers to those questions will potentially make the whole scheme completely unenforceable and allow you to tell the management company what they can do with PE (and it won't be polite).
thanks, yes parking is associated with specific property.
To me it seems like PE is trying to make money over this matter. Goal should be to avoid unauthorised parked cars rather than penalising those with permit. Agree there was delay from my end to put parking permit on time but should these excessive chages justify costs associated with few minutes delay?0 -
thanks, yes parking is associated with specific property.
To me it seems like PE is trying to make money over this matter. Goal should be to avoid unauthorised parked cars rather than penalising those with permit. Agree there was delay from my end to put parking permit on time but should these excessive chages justify costs associated with few minutes delay?
Please answer the other questions about your lease. These are VERY important.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0
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