POPLA: appeal allowed

[Michael Browne]

As reported on Pepipoo:

 

Well, my Appeal has been granted by Popla!!

 

Please see below

 

 

PARKING ON PRIVATE LAND APPEALS

 

PO Box 70748 London EC1P 1SN

 

0845 207 7700

 

[email protected]

 

www.popla.org.uk

 

 

 

7 February 2013

 

Reference: 05633823002

 

always quote in any communication with POPLA

 

********* (Appellant)

 

-v-

 

 

 

Athena ANPR Limited (Operator)

 

 

 

The Operator issued parking charge notice number *******

 

arising out of the presence at *******, on 16 November 2012, of a

 

vehicle with registration mark ******.

 

 

 

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.

 

 

 

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

 

 

----------------------- Page 2-----------------------

 

Reasons for the Assessor’s Determination

 

 

 

On 21 November 2012, the Operator issued a parking charge notice because

 

the vehicle with registration mark ****** was recorded on 16 November

 

2012 via automatic number plate recognition as having stayed in the ****

 

***** Car Park for 1 hour 45 minutes, which was longer than the maximum

 

stay of 1 hour 30 minutes.

 

 

 

The Operator’s case is that the terms and conditions for parking are clearly

 

displayed throughout the site. Copies of the conditions have been produced.

 

They state “if your vehicle remains in this car park for longer than 1 ½ hours

 

you agree to pay a £90 parking charge”. The Appellant does not dispute this.

 

 

 

The Appellant made representations, submitting that the case of VCS v HMRC

 

held that the Operator needs rights of occupation or possession in order to

 

have authority to issue parking charge notices. The Appellant submits that the

 

Operator does not have this authority. In addition the Appellant submits that

 

the parking charge is punitive and therefore is not a genuine pre-estimate of

 

loss.

 

 

 

The Operator rejected the representations, because there is photographic

 

evidence that the Appellant did not comply with the terms and conditions at

 

the site. It is noted that this is a standard letter that fails to address the

 

Appellant’s submissions. The Operator submits that the charge does not form

 

damages for breach of contract, in which case the amount of the charge

 

would have to amount to a genuine pre-estimate of loss. The Operator

 

submits that in fact they are attempting to enforce the contract, by seeking

 

payment of the charge which the Appellant accepted as a term of the

 

contract by parking his vehicle at **********.

 

 

 

The Operator also submits that they have a contract with the landowner that

 

authorises them to issue parking charge notices.

 

 

 

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

 

 

 

2 7 February 2013

 

 

----------------------- Page 3-----------------------

 

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. A copy of the contract the Operator submits they have with

 

the landowner 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.

 

 

 

Accordingly, this appeal must be allowed.

 

 

 

Shona Watson

 

Assessor

 

 

 

3 7 February 2013

[peanutsallergy]

A different answer to last time.

 

I don't think it's a landmark though unfortunately.

 

Athena haven't let POPLA have view of their contract with whoever employes them here. So it could be the contract states they can't pursue (as the Somerfield one did) or even if they have a contract. (Like the recent fraud case in Tyneside where they had no contract with the supermarket)

The UKCPS case in which POPLA had sight of the contract went the othr way.

[Michael Browne]

Appeal allowed. Same basis - the Operator (Parking Eye) has not shown that they have

 

authority to issue parking charge notices.

 

13 February 2013

 

Reference: 6063492005

 

always quote in any communication with POPLA

 

 

 

XXXXXXXXXXXXXXX (Appellant)

 

-v-

 

ParkingEye Ltd (Operator)

 

 

The Operator issued parking charge notice number 210732/470240

arising out of the presence at ALDI Pocklington, on 31 October 2012, of

a vehicle with registration mark XXXXXXXX.

 

 

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

 

 

 

On 6 November 2012, the Operator issued a parking charge notice because

the vehicle with registration mark XXXXXXXX was recorded on 31 October 2012

via automatic number plate recognition as having stayed in the ALDI

XXXXXXXXXXXXXX Car Park for 1 hour 43 minutes, which was longer than the

maximum stay of 1 hour 30 minutes.

 

 

The Operator’s case is that the terms and conditions for parking are clearly

displayed throughout the site. Copies of the conditions have been produced.

They state that there is a 1 ½ hour maximum stay and that a failure to comply

with the restrictions means that a parking charge notice will be issued.

 

 

The Appellant made representations, submitting that the amount of the

charge is disproportionate to the loss incurred by the Operator, and is

punitive, contravening the Unfair Contract Terms Act 1997. The Appellant also

states that the Operator has no proprietary interest in the land and therefore

has no authority to issue parking charge notices. In addition the Appellant

submits that the Operator has breached the BPA Code by not stating on their

signs that automatic number plate recognition is being used at the site.

 

 

The Operator rejected the representations, because the terms and conditions

are clearly displayed, and therefore the Appellant is deemed to have agreed

to them by parking his vehicle at the site. The Operator also states that simply

because parking contracts are not individually negotiated does not make

them automatically unfair, as the Operator offers motorists a grace period in

order to enter the car park, consider the terms and conditions, and leave if

they choose not to agree to those terms and conditions.

 

 

The Operator does not respond to the Appellant’s submission that they do not

have authority to issue parking charge notices. 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. No evidence has been produced to address this issue.

 

 

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 shifts to the Operator

to prove otherwise. The Operator has not discharged the burden.

 

 

Accordingly, this appeal must be allowed.

 

 

Shona Watson

 

Assessor

[peanutsallergy]

Another good result.

It's got to be the first thing on POPLA's checklist now you would have thought.

 

"Do the PPC have a contract, or is it a massive fraud?"

 

So it's a bit worrying they appear to assume it, unless it's in the challenge though.

[Nev Met]

The 'victim' must raise the issue to POPLA, they won't automatically check if there's a contract or not.

[peanutsallergy]

I wonder if that'll come back to bite them one day?