Appeal decision from POPLA

[Michael Browne]

Posted on MSE and Pepipoo:

 

PARKING ON PRIVATE LAND APPEALS

PO Box 70748 London EC1P 1SN

0845 207 7700

[email protected]

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

 

21 December 2012

Reference: 8763052662

 

BASFORDLAD (Appellant)

-v-

UKCPS Ltd (Operator)

 

The Operator issued parking charge notice number 845662 arising out of the presence at Alma Leisure Park on 26 October 2012, of a vehicle with registration mark WV10 SYF.

 

The Appellant appealed against liability for the parking charge.

 

The Assessor considered the evidence of both parties and determined that the appeal be refused.

 

The Assessor’s reasons are as set out.

 

In order to avoid any further action by the operator, payment of the £100 parking charge should be made within 14 days.

 

Details of how to pay will appear on previous correspondence from the operator.

 

8763052662 2 21 December 2012

 

Reasons for the Assessor’s Determination

At 12.07 on 26 October 2012, the Operator issued a parking charge notice because the vehicle with registration mark WV10 SYF 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. The Appellant does not appear to dispute this.

 

The Operator's case is that the terms and conditions for parking are displayed on the site, and state that vehicles displaying a valid disabled badge may park in a disabled bay. Copies of the conditions have been produced. They also state that a failure to comply with the restrictions mean that the car park user agrees to a parking charge notice being issued. Photographs have also been enclosed showing that the terms and conditions are visible in various areas of the car park. These are dated 26 November 2012, a month after the parking charge notice was issued, however the Appellant does not appear to dispute that there were signs on 26 October 2012 or that he did not know the requirement to show a disabled badge when parking in a disabled bay.

 

The Operator submits that the Appellant parked in a disabled bay without displaying a valid disabled badge. In the case summary the Operator refers to the copy of the parking charge notice, however it was not submitted with their evidence. Nevertheless, it does appear to be agreed (or at least not disputed) that the parking charge notice was issued to the vehicle in the car park of the Alma Leisure Park in Chesterfield.

 

The Appellant made representations but does not offer any submissions on the facts of the appeal, and neither party has enclosed the representations sent to the Operator.

 

The Operator states that photographs taken by the employee show that a disabled badge was not visible. This is accepted, as it appears that the vehicle is clearly parked in a disabled bay without a disabled badge on display.

 

Although the Appellant does not make any factual submissions whatsoever, he does make various legal submissions. One such submission is that the parking charge is not a genuine pre-estimate of loss, and that the Operator has not actually suffered any loss on this occasion.

 

The Operator's response to this was that there was enclosed a costs sheet to show the calculation of the genuine pre-estimate of loss, however there was none attached to their submission. For the reasons set out below this is not relevant.

 

A further point made by the Appellant in relation to whether the parking charge is a genuine pre-estimate of loss is that the charge is actually a penalty. The Operator submits that, a penalty has been defined in the courts as a sum that is in excess of the damage caused by non-performance of an obligation under the terms of a contract.

 

The Operator submits that in any case, the charge is not a genuine preestimate of loss because it is an invoice that the Appellant agreed to pay, for the use of a disabled space in which the vehicle was parked without a disabled badge.

 

Another statement by the Appellant is that if the parking charge amounts to a genuine pre-estimate of loss, the amount of the loss should not change from £60 for the first 14 days and rise to £100 thereafter. The Operator responded that the genuine pre-estimate of loss is £100, however that there is a discount if the charge is paid within the first 14 days.

 

In addition, the Appellant states that if the parking charge is a genuine preestimate of loss, the amount should vary for different breaches of the terms and conditions, for example parking over a white line or overstaying. The Operator does not respond to this point.

 

The legal submissions of the Appellant set out above are not accepted. The Appellant parked the vehicle in the car park, thereby agreeing to the contractual terms and conditions displayed on the signs. These included the condition that vehicles may only park in a disabled bay if a valid disabled badge was displayed.

 

Another term of the contract was that if the vehicle was parked without complying with the conditions of the contract, the motorist agreed to pay a parking charge of £100 (or £60 if paid within 14 days). The submissions I believe the Operator is trying to make is not that the Appellant has breached the contract giving rise to damages, as the Appellant appears to believe, but that the Operator is seeking to enforce the contract. This is because the Operator is seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle at Alma Leisure Park. The contract cannot now in effect be renegotiated.

 

The parking charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach and would need the Operator to prove that the parking charge was a genuine pre-estimate of loss.

 

The Appellant mentions the equitable principle that "one must come to equity with clean hands", and that the Operator is acting dishonestly as they cannot legally recover the parking charge so therefore does not have "clean hands". However the law of equity is not relevant to the appeal and therefore this has been disregarded.

 

Finally, the Appellant quotes Vehicle Control Services (VCS) v HMRC [2012] UKUT 129 (TCC), stating that Operators cannot create contracts with motorists if they do not own or have any proprietary interest in the land. The Operator submits that the authority produced shows that the occupier of the car park has given them the power to manage the car park. In addition, the Operator submits that the signs stating that motorists who park are entering into a contract with the Operator show that a valid contract was created between the Operator and the Appellant. I am inclined to disagree, and instead following the reasoning applied in VCS v HMRC, that the Operator cannot offer the right to park as it has already been offered by the occupier, in this case as use of the car park is free. However the Operator acts as an agent for the occupier of the land, and a valid contract was created although it is between the Appellant and the occupier. Therefore in attempting to recover the parking charge in this case, the Operator is acting on behalf of the occupier as permitted by the authority, and does not need to show a proprietary interest.

 

The Appellant further submits that under the Unfair Terms in Consumer Contracts Regulations 1999, parking charges are unfair terms as the contracts are not individually negotiated and causes significant imbalance in the relations of the parties, to the motorist’s detriment.

 

However as the terms and conditions of the contract are clearly displayed and the Appellant is therefore deemed to have been aware of the terms, if the Appellant did not agree he would have had the option to park elsewhere. Therefore the Unfair Terms in Consumer Contracts Regulations 1999 are not relevant on this occasion.

 

The Appellant not having disputed or referred to the facts in any way, I must find as a fact that, at the material time, a valid disabled badge was required to be displayed on the vehicle but was not visible. This was a breach of the terms and conditions of parking.

 

Accordingly, on this particular occasion, the appeal must be refused.

Shona Watson

Assessor

[Michael Browne]

One minute it is a genuine pre-estimate of loss:

 

The Operator's response to this was that there was enclosed a costs sheet to show the calculation of the genuine pre-estimate of loss,

 

Then it isn't:

The Operator submits that in any case, the charge is not a genuine pre-estimate of loss because it is an invoice that the Appellant agreed to pay

 

Then it is:

The Operator responded that the genuine pre-estimate of loss is £100,

[BankFodder]

From the sound of it, Basfordlad handled it very badly and some of his arguments were frankly ridiculous - although that may not have affected the final outcome in any way.

 

Presumably if he now refuses to pay, UKCPS will have to decide whether or not to bring a small claim. If they do, then Basfordlad had better be a bit better prepared with his arguments.

 

I expect that UKCPS will go all out on this one because they will want to establish POPLA as a credible body.

 

Mind you, if he did park on any disabled bay and he is not disabled, then one finds it a bit difficult to have sympathy.

A shame that POPLA isn't being challenged from a position with a bit more of the moral high ground.

If he is not disabled then Basfordlad is handing POPLA and the BPA a nice propaganda advantage, whatever the eventual outcome.

[Dublindel]

My challenge is different. Entered car park, bad signage. Looked for parking conditions, rejected them and left with an invoice on the car. I claim I was there for 8 minutes which is within their 10 minute grace period, time stamped pics at 11.30am and ticket timed 11.38 am. They somehow claim I was there at 11.27. I am using Thier own hardcopy evidence against them. Sounds like a no brainer but let's see what happens. Expect decision by end of the month.

[steveod]

 

Mind you, if he did park on any disabled bay and he is not disabled, then one finds it a bit difficult to have sympathy.

A shame that POPLA isn't being challenged from a position with a bit more of the moral high ground.

If he is not disabled then Basfordlad is handing POPLA and the BPA a nice propaganda advantage, whatever the eventual outcome.

 

sorry where in tort law is the blue badge recognised and defined? can I just put any blue-coloured badge in my window?

[steveod]

The assessor states the following:

"However as the terms and conditions of the contract are clearly displayed and the Appellant is therefore deemed to have been aware of the terms, if the Appellant did not agree he would have had the option to park elsewhere. Therefore the Unfair Terms in Consumer Contracts Regulations 1999 are not relevant on this occasion."

 

so then the UTCCR are pointless then. Any stated terms and conditions in any contract as lomg as they are seen are therefore not relevant? really? thats not what the UTCCR state nor the OFT guidance. only price of the core terms of a contract cannot be assessed for fairness. In a pay-and-display parking for instance, the pay £1 for 1 hour is the price to be paid as the core term, the pay £75 if you dont pay the £1 is not a core term and can be assessed for fairness under UTCCR.

 

also she states:

"Another term of the contract was that if the vehicle was parked without complying with the conditions of the contract, the motorist agreed to pay a parking charge of £100 (or £60 if paid within 14 days)."

 

Well does the "not complying with" not have the same meaning as "breaching"?

[steveod]

Boy, I am going to have fun using all the nonsense she put in here to my appeal to POPLA.

Is it a breach of contract or not?

Is it a genuine pre-estimate of loss or not?

If its entering into a contract with the landowner only, and cannot be with the PPC due to VCSvHMRC, then the contract terms&conditons of the landowner are what? no signs showing the land owners t&cs for me to agree to, only t&cs of this strange PPC company that has no right to offer me a contract!

[lamma]

POPLA have not covered themselves in glory in my opinion. I have seldom read meanderings of such poor quality. It does not cause my credibility meter to register any reading at all.

[instrumentsofjoy]

From the sound of it, Basfordlad handled it very badly and some of his arguments were frankly ridiculous - although that may not have affected the final outcome in any way.

 

Presumably if he now refuses to pay, UKCPS will have to decide whether or not to bring a small claim. If they do, then Basfordlad had better be a bit better prepared with his arguments.

 

I expect that UKCPS will go all out on this one because they will want to establish POPLA as a credible body.

 

Mind you, if he did park on any disabled bay and he is not disabled, then one finds it a bit difficult to have sympathy.

A shame that POPLA isn't being challenged from a position with a bit more of the moral high ground.

If he is not disabled then Basfordlad is handing POPLA and the BPA a nice propaganda advantage, whatever the eventual outcome.

 

Not really. The stuff they spout is round spherical objects. If - for example - you are bound by a sign because you have seen it - then a notice goes into my windscreen straightaway saying anyone attaching a notice to it - like a fake parking ticket pays £1,000.

 

To take just one.

[Aretnap]

sorry where in tort law is the blue badge recognised and defined

It doesn't have to be defined in tort law. The landowner's entitled to offer parking on condition that you display a blue badge if he wants to, and if you didn't comply with the condition you'd be trespassing. It doesn't necessarily follow that he'd be able to claim £100 in damages, of course.

 

can I just put any blue-coloured badge in my window?

Depends - would a reasonable person interpret "blue badge" to mean "local authority issued disabled parking badge"? If they would then no, you couldn't use any old blue-coloured badge, as that's not what the conditions ask for.

[BankFodder]

There are three issues to be dealt with here - the legal one, the commonsense one and the moral one. The reason is that landowners have a moral right to control how their land is used and they will try to control it by legal means. However one would hope that the use of the law would be subject not only to proportionate commonsense but also to proportionate morality.

 

The commonsense aspect is that really there is not such a huge problem of abuse of parking facilities that it warrants this kind of sledgehammer approach. I expect that the parking industry has pitched it to the car park owners that they are in real danger - and that the car park owners have accepted it and gone along with it without really double checking for themselves. We have seen from the CAB advice, that left to themselves, the BPA will spin the true situation to suit their own agenda.

A further commonsense aspect is that it owuld be far more in the interests of the car park owners that their customers' money was spent in their shop instead of being forced into the pockets of some mainly undeserving parking company

 

The moral aspect is that even if there was legal right against them, very few customers deserve to receive a penalty even as disproportionate as £50 for a very short overstay - let alone, £100 or more.

It seriously undermines the position of legitimate customers when some people start using car park spaces which are allocated to special vulnerable or deserving groups. This kind of behaviour does serious disservice to the consumer lobby (us) and hands out comfort to the BPA and the parking companies.

Especially at this time when there are many issues relating to private car park management which are presently the subject of debate and which have to be settled.

 

To make almost a test issue of a parking matter involving a specially reserved space was a very bad move.

I really do hope that others who want to take on the parking industry think a little more carefully about how they do it in future.

 

This was not the way.

[Surfer01]

There is no law requiring you to display a Blue Badge on private land therefore their T & Cs requiring you to display one on private land may be unfair under UTCC? Secondly a disabled bay on private property does not exist as it is merely painted lines or graffiti. Lastly only the LL or leaseholder can sue for damages and not the PPC. Too many flaws for an action by the PPC to be successful if defended correctly.

[lamma]

The moral aspects are irrelevant to the law.

[diskmandave]

There is no law requiring you to display a Blue Badge on private land therefore their T & Cs requiring you to display one on private land may be unfair under UTCC? Secondly a disabled bay on private property does not exist as it is merely painted lines or graffiti.

 

A Blue Badge is issued by a Local Authority and is valid ONLY on public roads maintained by the Local Authority, and in Local Authority car parks.

 

A disabled bay on private property exists (in the main) to satisfy Section 20 of the Equality Act 2010. To restrict access to a disabled bay on PP to BB holders ONLY could be seen as unlawful contrary to Section 20 of the Equality Act 2010 as it would discriminate against disabled people who don't have a Blue Badge. The UTCC doesn't come in to this part of the arguement IMHO.. The BB and Disabled arguements need seperating from the UTCC side of things and arguing seperately and correctly...

 

2p>

[green_and_mean]

A Blue Badge is issued by a Local Authority and is valid ONLY on public roads maintained by the Local Authority, and in Local Authority car parks.

 

A disabled bay on private property exists (in the main) to satisfy Section 20 of the Equality Act 2010. To restrict access to a disabled bay on PP to BB holders ONLY could be seen as unlawful contrary to Section 20 of the Equality Act 2010 as it would discriminate against disabled people who don't have a Blue Badge. The UTCC doesn't come in to this part of the arguement IMHO.. The BB and Disabled arguements need seperating from the UTCC side of things and arguing seperately and correctly...

 

2p>

 

I do not believe sect 20 requires reserved disabled parking to be provided if that were the case every shop or workplace that had no parking facilities would be in breach of the law.

[diskmandave]

I completely agree G & M...

 

But those that provide, are showing their compliance... But to restrict MARKED BAYS to BB only could be unlawful as I've stated..

 

Please remember, we're discussing PROVIDED MARKED BAYS here.. And NOT, "requirements on providers"..

 

Best wishes, Dave...

Edited January 12, 2013 by diskmandave

[BankFodder]

There is no law requiring you to display a Blue Badge on private land therefore their T & Cs requiring you to display one on private land may be unfair under UTCC? Secondly a disabled bay on private property does not exist as it is merely painted lines or graffiti. Lastly only the LL or leaseholder can sue for damages and not the PPC. Too many flaws for an action by the PPC to be successful if defended correctly.

 

The moral aspects are irrelevant to the law.

 

C'mon you people. Do you just want to rage and rant against this stuff or to you want to campaign effectively.

 

You are talking about people's rights to their own private land here. Moral aspects are hugely relevant. This issue is about citizenship and good neighbourliness. It is about consumer spending. It is about not enforcing people's own human failings against them in a disproportionate way.

A private landowner is completely within his rights to say that he will only permit certain classes of person to park in particular places. There is nothing unlawful about that. If the carpark owner says that he is happy to accept the blue badge scheme as the basis upon which he will recognise those who qualify to use those reserved places, he is fully entitled to.

Morality, decency and citizenship are your main weapons in this as in any other kind of bounty hunting/civil recovery issue.

 

If you all restrict yourselves to bleating on about legal rights - then you will lose the high ground and you will hand a victory to the private parking industry.

 

If you want to retain the highground - which I believe that you do currently occupy, - then you should condemn car park operators which try to make money out of a disproportionate system of fines. You should condemn the supermarkets which facilitate the parking industry and who are stupid enough to tarnish their brands with this oppression. But you should also condemn the selfish oafs who out of carelessness - but more often out of laziness use spaces which allocated to special groups and who by doing so are bringing comfort to the supermarkets and private parking companies and who are betraying you all..

 

Frankly, I'm amazed that I have to explain this to you.

[Surfer01]

By the same morals do not count in court of law. No one is banging on about morals except Bankfodder. It is the silly charges invoked by the PPCs for genuine mistakes and even if they are not genuine why should the motorist pay £100 for parking in a bay marked for disabled. What if you are disabled and park in the bay but do not display your badge?

BTW prior to these PPCs having a go at fleecing people, can any one remember having parking issues on a supermarket etc car park. It was the PPC that convinced the leaseholder they had a problem when there was no problem.

[ericsbrother]

When a supermarket chain builds a new store they are obliged by planning regs to provide a certain proportion of disabled bays in their parking facilities. If these spaces are abused by everyone then the stores and councils will start petitioning government to pass legislation on this matter. I like the idea that it is down to the individual to consider others, the more considerate people are then the less the need for disabled spaces will be a requirement at the planning stage.

[Surfer01]

When a supermarket chain builds a new store they are obliged by planning regs to provide a certain proportion of disabled bays in their parking facilities. If these spaces are abused by everyone then the stores and councils will start petitioning government to pass legislation on this matter. I like the idea that it is down to the individual to consider others, the more considerate people are then the less the need for disabled spaces will be a requirement at the planning stage.

 

No one is disagreeing with what you are saying, but unfortunately morals and the law do not go hand in hand.

[BankFodder]

No one is disagreeing with what you are saying, but unfortunately morals and the law do not go hand in hand.

How can you possibly be so incredibly wrong?

 

When a supermarket chain builds a new store they are obliged by planning regs to provide a certain proportion of disabled bays in their parking facilities. If these spaces are abused by everyone then the stores and councils will start petitioning government to pass legislation on this matter. I like the idea that it is down to the individual to consider others, the more considerate people are then the less the need for disabled spaces will be a requirement at the planning stage.

Absolutely correct

[DBC]

That legislation regarding disabled parking places was passed in Scotland a couple of years ago. The act states that a private landowner or parking company can invite the council to take-over the enforcement of any breaches or misuse of these bays. I have heard that the take-up of this scheme has been very low indeed because the PPCs don't want to lose that particular cash-cow.

[Surfer01]

How can you possibly be so incredibly wrong?

 

 

Absolutely correct

 

Morally you should pay the fee demanded by the PPC to keep them in business, but we object to paying it. Morally someone pays and then parks in a disabled bay although they are not disabled, but can the courts uphold the PPC demand for whatever costs they deem to apply because the person paid but parked in a disabled bay?

I agree it is morally wrong for the person to park in the disabled bay even if they paid to park on the private car park, but in the eyes of the law can the PPC impose a penalty or can the LL claim damages?

 

PS I am a BB holder.

[BankFodder]

Morally you should not pay the fine - because it is extortionate and not supported by law.

yes the LL can claim damages if the damages claimed are lawful. The lawfulness of damages is based upon how far they relate to actual losses. This shows that the law attempts to achieve moral solutions to many problems - because law and morality do in fact work very closely with each other.

[Surfer01]

Morally you should not pay the fine - because it is extortionate and not supported by law.

yes the LL can claim damages if the damages claimed are lawful. The lawfulness of damages is based upon how far they relate to actual losses. This shows that the law attempts to achieve moral solutions to many problems - because law and morality do in fact work very closely with each other.

Okay I see your point as I was looking at it with blinkers on and your example above is good.