POPLA Decisions

Coupon-mad · 25 April 2013 at 6:12PM

Another one from pepipoo last month:

Decision: Allowed

Parking Control Management (UK) Ltd (Operator)

- The Operator has not shown that they have authority to issue parking charge notices.

- Further to this, the Operator has not clearly stated how much the Appellant should pay and when, whether £75 within 7 days, £57 within 14 days or £95 within 28 days.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

...the Operator issued a parking charge notice because the vehicle with registration mark ---- --- was parked in a disabled bay but the Operator’s employee could not see a valid disabled badge on display. The employee then took a number of photographs of the vehicle, one of which shows the parking charge notice on the windscreen.
It is noted that on the copy of parking charge produced, it states that the full amount of the parking charge is £95, but that the reduced amount of £57 will be accepted if paid within 14 days. However on the back of the notice it states that £75 will be accepted if paid within 7 days. This is confusing for motorists and means that they will know not know how much to pay at what stage.
The Operator’s case is that the terms and conditions for parking are clearly displayed throughout the disabled parking areas and state that motorists parking in disabled bays must clearly display a disabled badge. Copies of the conditions have been produced. They also state that a failure to comply with the restrictions mean that a parking charge notice will be issued. The Appellant does not dispute this.
The Appellant made representations, stating that he has a disabled tax disc and he was with his disabled son. In addition the Appellant states that the Operator has no legal right to enforce parking charge notices issued on this land, and that the charge bears no relation to genuine loss to the Operator.
The Operator rejected the representations, as set out in the copy of the notice of rejection they sent, because no valid disabled badge was displayed on the windscreen.
The Operator submits that their authority to issue parking charge notices is not in question. In Paragraph 46 of the decision in VCS v HMRC it states:
VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action
Membership of the Approved Operator Scheme does require the Operator to have clear authorisation from the landowner (if the Operator is not the landowner), to manage and enforce parking. This is set out in the BPA Code of Practice. Therefore the Operator is likely to have authority to issue parking charge notices.

However, as the point was raised by the Appellant, then the Operator should address it by producing such evidence as they believe shows that they do have authority.

The Operator states that they are not obliged to provide a copy of any authority but that if I wish to see it they will discuss the matter. However I may only make a decision on the basis of the evidence submitted to me and I am not permitted to enter into discussions with the parties. A copy of the contract has not been produced.

Having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that they have authority to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifted to the Operator to prove that they do. The Operator has not discharged the burden.

Further to this, the Operator has not clearly stated how much the Appellant should pay and when, whether £75 within 7 days, £57 within 14 days or £95 within 28 days.

Accordingly, this appeal must be allowed.
Shona Watson
Assessor

Fergie76 · 25 April 2013 at 6:49PM

So as long as everyone follows the advice from here and pepipoo and challenge the PPC's right to issue tickets, until one grows a pair and produces a copy of their contract, then no one should lose at POPLA again...

Guys_Dad · 25 April 2013 at 7:15PM

I know I am adding to the padding, but p-l-e-a-s-e keep this thread to reported cases and NOT discussion/opinions.

Not that discussion is wrong, but if we keep this to a list of actual results, as was envisaged by Aaron, then we won't have to plough through pages of comment to see the wood from the trees.

Coupon-mad · 25 April 2013 at 9:33PM

Eunos1's lost appeal against PE, as discussed in this thread:

http://forums.moneysavingexpert.com/showthread.php?t=2273989&page=5

The POPLA decision seems to have been based ONLY on the OP's very first rushed/weak email which is buried within the block of text in post #123. The bit about 'gridlocked' and 'going into McDonalds' is the only thing Shona seems to have seen, otherwise she would have mentioned Eunos1's other strong points about PE not owning the land nor having a contract with the landowner, etc.

*********************************************************************************************

''I must find as a fact that, on this particular occasion, the terms and conditions were clearly displayed, including the length of stay permitted. I must find that the Appellant overstayed the maximum stay. This was a breach of the terms and conditions.''

ParkingEye Ltd (Operator)

Decision: Refused

Reasons for the Assessor’s Determination

On 29 December 2012, the Operator issued a parking charge notice because on 21 December 2012 the vehicle with registration mark ********** was recorded via automatic number plate recognition as having stayed in the ********* Park Car Park for 2 hours 32 minutes, which was longer than the maximum stay of 2 hours.
The Operator’s case is that the terms and conditions are displayed at the entrance and throughout the site and state that there is a 2 hour maximum stay. Copies of the conditions have been produced. They also state that a failure to comply with the conditions means that a parking charge notice will be issued. The Appellant does not dispute this.
The Appellant made representations, explaining that he returned to his vehicle within the 2 hours maximum stay period, but because the traffic was so bad he did not enter his vehicle but went to McDonalds to wait for the traffic to ease. This meant that he overstayed the maximum stay. The Appellant submits that the traffic was poorly managed.
The Operator rejected the representations. It is noted that the Operator fails to address the Appellant’s submissions or provide any reasons for rejection. The Operator produced a copy of the parking charge notice which contains images of the vehicle entering the site at 09.27 on 21 December 2012 and exiting at 12.00 the same day.

I must find as a fact that, on this particular occasion, the terms and conditions were clearly displayed, including the length of stay permitted. I must find that the Appellant overstayed the maximum stay. This was a breach of the terms and conditions.

It is noted that the Appellant saw the traffic was bad and so went to McDonalds, however it is the motorist’s responsibility to comply with the terms and conditions for parking. On this occasion the Appellant stayed at the site for over 2 hours.

Accordingly, this appeal must be refused.

Shona Watson
Assessor

MrDance · 29 April 2013 at 7:47PM

Reasons for the Assessor’s Determination
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
On 31 October 2012, the Operator issued a parking charge notice because on 25 October 2012 the vehicle with registration mark xxxxxxx was recorded via automatic number plate recognition as having stayed in the Churchill Retail Park Car Park for 2 hours 34 minutes, which was longer than the maximum stay of 2 hours.

The Operator’s case is that the terms and conditions are displayed at the entrance and throughout the site and state that there is a 2 hour maximum stay. Copies of the conditions have been produced. They also state that a failure to comply with the conditions means that a parking charge notice will be issued. The Appellant does not dispute this.

The Appellant made various representations, stating that the Operator had missed the deadline to respond to her appeal and that therefore the parking charge should be cancelled. After receiving the Operator’s evidence, the Appellant submits that the Operator gives the impression that they have authority to issue parking charge notices but that she refutes this statement and disputes that they have a contract with the landowner.

The Operator rejected the representations. It is noted that the Operator fails to address the Appellant’s submissions or provide any reasons for rejection. The Operator submits that they have written authority from the landowner to issue parking charge notices at the site. The Operator produced a redacted copy of what appears to be the first page of a contract between the Operator and the landowner of Churchill Retail Park. However, although this provides that the Operator is authorised to carry out "services" at the site, it does not explain what these "services" are, and whether it includes the issuing of parking charge notices.

The case of
[/FONT]
[/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC) [/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]the Upper Tribunal (Tax and Chancery Chamber) concerned Value Added Tax but, In Paragraph 46 of the Decision, it states: [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action.
[/FONT]
[/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]This case has now been considered by the Court of Appeal (
[/FONT]
[/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][2013] EWCA Civ 186[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic][/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]) where, in allowing the appeal of VCS, the Court held: [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
In the present case the contract between VCS and the landowner gives VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, I do not consider that it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge I see no impediment to regarding that as damages for trespass.

The material events occurred before the coming into force of Section 54 of the Protection of Freedoms Act 2012. However, it is clear that, subject to the terms of the contract between them and the landowner, an operator may issue a parking charge notice to a vehicle for a breach of conditions of parking.

Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner (if the Operator is not the landowner) to manage and enforce parking. This is set out in the BPA Code of Practice. Therefore the Operator is likely to have authority to issue parking charge notices. However, as with any issue, if the point is specially raised by an appellant, then the operator should address it by producing such evidence as they believe refutes a submission that they have no authority. The contract produced by the Operator does not show that they have authority from the landowner to issue parking charge notices.

Therefore, having carefully considered all the evidence before me, I must find as a fact that, on this particular occasion, the Operator has not shown that they have authority from the landowner to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifts to the Operator to prove that they do. The Operator has not discharged this burden.

Accordingly, this appeal must be allowed.
[/FONT][/FONT]
Shona Watson
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
Assessor
[/FONT][/FONT]

Coupon-mad · 29 April 2013 at 7:55PM

Who was the operator in that one, and was this your case?

trisontana · 29 April 2013 at 7:59PM

It's PE, Coupon.This is the related thread:-

http://forums.moneysavingexpert.com/showthread.php?t=4388179

MrDance · 29 April 2013 at 8:05PM

Coupon-mad wrote: »

Who was the operator in that one, and was this your case?

Parking Eye, it was Mrs Dance's, but I did all the work

Umkomaas · 29 April 2013 at 8:50PM

Bad luck Rachael

How many defeats will your bosses stomach?

Umkomaas · 29 April 2013 at 10:18PM

Here's another (successful) appeal - Contract with Land Owner issue again (via PePiPoo)

PARKING ON PRIVATE LAND APPEALS
PO Box 70748 London EC1P 1SN
0845 207 7700
enquiries@popla.org.uk
https://www.popla.org.uk
Parking on Private Land Appeals is administered by the Transport and Environment Committee of London Councils
Calls to Parking on Private Land Appeals may be recorded
25 April 2013
Reference: xxxxxxxxxx
always quote in any communication with POPLA
JAMPOTT (Appellant)
-v-
Town and City parking (Operator)
The Operator issued parking charge notice number unknown arising out of the presence 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
The Appellant made several representations to the Operator, stating amongst them:
1. No contract was offered by the Operator.
2. In order to offer a contract the Operator must show that they have sufficient interest in the land. The Appellant has requested evidence of this. Reference has been made to a case Vehicle Control Services Ltd v HMRC.
The Operator rejected the representations, stating:
1. The Appellant agreed to the terms and conditions on the signage and thus entered into a contract.
2. The car park is private land and access is allowed to the public by the owners on the condition that they park according to the advertised terms and conditions.
3. There is a maximum stay period stated on the signs. The Appellant was parked in excess of this time and was therefore issued a Parking Charge Notice.

Reference has been made to a decision in the Upper Tribunal (Tax and Chancery Chamber) in the case of Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC), often referred to as VCS v HMRC, to submit that an Operator cannot issue a parking change notice if they are not the landowner. The case concerned Value Added Tax but, In Paragraph 46 of the Decision, it states:

VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action.

In any event, this case has now been considered by the Court of Appeal ([2013] EWCA Civ 186) where, in allowing the appeal of VCS, the Court held:

In the present case the contract between VCS and the landowner gives VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, I do not consider that it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge I see no impediment to regarding that as damages for trespass.

The material events occurred before the coming into force of Section 54 of the Protection of Freedoms Act 2012. However, it is clear that, subject to the terms of the contract between them and the landowner, an Operator may issue a parking charge notice to a vehicle for a breach of conditions of parking.

Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if itself is not the landowner, as to their 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 they believe refutes a submission that they have no authority.

The Operator has responded to the Appellant’s submissions. I am unable to conclude that the Appellant is liable for the parking charge.

Accordingly, I allow this appeal.

Aashna Musa
Assessor

:T :T :T

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