Parking Eye, Newquay, Tower Road

Thank you very much for the swift response! I'll get reading the forums and start drafting the content for the POPLA letter/email. Is it acceptable to post that in the forum thread before I email? Obviously with personal details removed.

Thanks again!

Excellent. I want this out of the way as soon as possible, so I've pieced together a draft in preparation. If anyone could add comment that would be great and then I can get it ready to send when it's needed. The only thing I don't have is my ticket anymore (which is kind of a big thing in the scheme of it), but my assumption is that it's their job to prove I didn't pay for the hour, rather than me to prove I did. I may be wrong!

Here's the draft:

I am the Registered Keeper of the vehicle and appeal the parking charge on the following points :

1) No breach of contract
The operator is basing this claim on breach of contract for purportedly not making payment for the full period of parking. The operator has provided no evidence that this is true. They have simply provided a time that they presumably assert is the beginning of any parking contract and the end of it. However as this time is presumably recorded by ANPR camera :
a. There is no evidence of where this arbitrary time was recorded. There are no images to relate it to any position inside or outside the car park. It is reasonable to assume that a driver would believe any requirement to pay begins when a vehicle actually parks in a parking bay, especially when other terms and conditions on signage relate to the parking tariffs. Therefore, signage clearly refers to parking tariffs – not time spent within the car park. As the driver spent 28 minutes waiting for an appropriate car parking space, which needed to be on the end of the row to allow the removal of a baby seat from the back door, then this time cannot be construed as time spent parked. End spaces in the car park are limited and on a busy summer’s day are often filled early. With a sleeping child on board, it was not an unreasonable assumption by the driver that waiting for one to become available would not incur a charge.
In the case of Hotchins v Parking Eye 2014, a judge ruled that time spent circling a car park to find an appropriate space cannot be construed as time spent parked. In no way, therefore, did it obstruct or prevent the operator from making money from the spaces that were being used in the car park at the time.
The claim that a fine in someway recoups losses is totally irrelevant as there was no parking space occupied and, therefore, no service being used. The car was not parked.
b. The operator is seeking to impose a requirement on a driver to pay from the instant they enter the car park and for a time of which they are completely unaware. As the driver had no idea whatsoever when this timing was taken it is consequently impossible for a driver to know what time payment must be made by. Even if the driver realised an ANPR recording was captured they would have no idea of the time that the ANPR would be recording . Even if the driver had a watch, it and the ANPR equipment are not synchronised in any way and the operator provides no method for the driver to know what time they are using as the beginning of the charge period, even though their cameras record to the nearest second. This contractual term is clearly unfair with reference to UTCCR (1999)
5.—(1)!A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
It is impossible to argue that the operator is acting in good faith when they are imposing a requirement on the driver to make payment within seconds of entry, yet not informing them of when that requirement begins. This clearly causes an imbalance in the parties’ rights to the severe detriment of the driver . The term is unenforceable.
Indeed, not only are Parking Eye failing to act in good faith with customers – they are actively seeking to punish their own customers’ loyalty.
The British Parking association states “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” If the driver is unaware that their time begins the instant they enter the car park, regardless of whether or not they are parking, then this is a clear breach of this agreement: there is no transparency in the operating of this car park. The driver was a genuine customer and had they known that these were the real terms of agreement, they would never have stayed on the premises.

2) The parking charge is an unfair contractual term, not a genuine pre estimate of loss and a penalty and this case can easily be distinguished from Parking Eye v Beavis (which Parking Eye often quote).
Payment was made for one hour in the car park and 28 of the additional minutes were spent waiting, not occupying a space, so no loss has occurred and the operator is trying to impose a penalty, attempting to enforce an unenforceable unfair contractual term. They are attempting to punish the driver for waiting to use their service. In short, they wish to punish someone who wanted to use their facility for the very purpose it was created: they wish to penalise the driver for using their car park to pay and park.

The contract being offered by the operator is a simple consumer contract. An offer of parking is made in return for a small tariff. A contract term that imposes a sum of £100 for a purported failure to make payment of a small parking tariff is clearly an Unfair Term. When the cost of parking for one hour is £2, a penalty of £100 is hugely disproportionate.

3) No keeper liability
There can be no keeper liability as the operator has failed to comply with the requirements of schedule 4 of The Protection of Freedoms Act ( POFA ) and consequently cannot rely on the provisions of the Act.

The purported parking transgression occurred on 28/07/16. No Notice to Driver as required by schedule 4 of POFA para 6(1)(a) was placed on the vehicle. The first communication on this matter was a Parking Charge Notice with an issue date of 12/08/16 that was received by post. As this was delivered by post, the creditor has failed to deliver a compliant Notice to Keeper as required by schedule 4 of POFA para 6(1)(b) within the relevant period of 14 days (schedule 4 of POFA para 9(4)(b) and 9 (5).) Beginning on, and inclusive of the day after the specified period of parking ended, the period of notice was equal to 15 days. The parking company has not met the keeper liability requirements] and therefore keeper liability does not apply.

I look forward to your response

Yeah, I've already sent the blue text to PE. The lengthy post was me drafting my POPLA appeal - sorry if I didn't make that clear.