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  • FIRST POST
    • silentcow
    • By silentcow 12th Aug 16, 5:58 PM
    • 13Posts
    • 3Thanks
    silentcow
    Parking Eye, Newquay, Tower Road
    • #1
    • 12th Aug 16, 5:58 PM
    Parking Eye, Newquay, Tower Road 12th Aug 16 at 5:58 PM
    Hello all,

    It seems that I have become one of the many people to receive a lovely letter from the PE company with regards to Tower Road car park in Newquay. Basically their claim is that I spent 1m 27m in the car park and did not purchase the appropriate time or remained longer than permitted (standard letter). I did spend 1h 27m in the car park and paid for the 1h I was parked. The first 20 minutes were spent waiting for a space and the final 7 minutes spent getting my children into the car and nappies changed to leave.

    I'm sure they have no interested in my personal story and even less interest in childcare being involved. The issue I take, and which I’d hope is going to help with a PODLA, is that the signage refers to parking tariffs and not time spent in the car park.

    Anyway, I haven’t responded yet and this is where I need that little bit of help. Do I just email PE asking for my code? Or do I try a ‘soft appeal’?

    What might be worth noting is that the ‘offence’ is dated 28th July and was received August 12th – although they have deceptively dated their letter 4th August and the envelope has no date of postage mark. I have read somewhere (section 9 of a 2012 document is it?) that they should have written to the registered keeper within 14 days.

    There appears to be a bit of hassle involved in challenging this – and part of me is tempted to pay to make it go away – but the feeling I get from these forums is there could be a case to win.

    Thanks in advance

    Dan
    Last edited by silentcow; 12-08-2016 at 6:15 PM.
Page 2
    • Coupon-mad
    • By Coupon-mad 18th Oct 16, 5:46 PM
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    Coupon-mad
    A pain - but still defendable in court on the same basis as the other cases (there is no 'HIGH COURT ruling' called Hotchins v PE!).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • silentcow
    • By silentcow 18th Oct 16, 6:33 PM
    • 13 Posts
    • 3 Thanks
    silentcow
    My bad, it wasn't a high court one - just one which went to court. I've found a newspaper link to the Cornish Guardian but I can't paste into the thread. It does suggest that it's wholly possible to beat PE at court though.

    Is the suggestion then that others continue with their case to court?
    • Coupon-mad
    • By Coupon-mad 19th Oct 16, 11:38 AM
    • 40,565 Posts
    • 52,449 Thanks
    Coupon-mad
    My bad, it wasn't a high court one - just one which went to court. I've found a newspaper link to the Cornish Guardian but I can't paste into the thread. It does suggest that it's wholly possible to beat PE at court though.

    Is the suggestion then that others continue with their case to court?
    Originally posted by silentcow
    You don't need to paste that article; the case sounds like our poster IvorPeCheque's own case, and yes, it is winnable.

    Can you show us what POPLA said in their daft wording, I want to see why they concluded that a driver who couldn't park, could possibly have read the signs, let alone been bound by the terms of parking!

    POPLA are useless at dealing with complaints but this sounds worthy of an immediate one - let's see the wording of the decision please.
    Last edited by Coupon-mad; 20-11-2016 at 4:38 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • silentcow
    • By silentcow 20th Oct 16, 12:38 PM
    • 13 Posts
    • 3 Thanks
    silentcow
    Decision Unsuccessful
    Assessor Name Sophie Taylor
    Assessor summary of operator case
    The operator’s case is that the driver of the vehicle has failed to purchase sufficient time to cover the duration of stay within the car park.

    Assessor summary of your case
    The appellant’s case is that the operator has failed to comply with the Protection of Freedoms Act (PoFA) 2012, and therefore they cannot be held liable as the registered keeper of the vehicle, as they did not receive the notice within the relevant period. The appellant states that the signage is ambiguous and unclear. The appellant states that there is no breach of contract, as the driver spent 28 minutes waiting for an appropriate car parking space to become available, and therefore cannot be considered parked for this period. The appellant states that the charge is an unfair contractual term, and does not represent a genuine pre-estimate of loss.

    Assessor supporting rational for decision
    The operator states that it has issued a Parking Charge Notice (PCN) to the driver of the vehicle, as they have failed to purchase sufficient parking time to cover the duration of stay within the car park. The appellant’s case is that the operator has failed to comply with the PoFA, and therefore they cannot be held liable as the registered keeper of the vehicle, as they did not receive the notice within the relevant period. Upon review of the evidence I am not satisfied that the driver has been identified sufficiently. In order to transfer liability from the driver, to the registered keeper of the vehicle, the strict provisions laid out in the PoFA must be adhered to. Section 9, Paragraph 1A of Schedule 4 of PoFA states that: “A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.” Following this Paragraphs 4, 5 and 6 cover the specific points raised by the appellant in regards to the relevant period. “(4)The notice must be given by— (a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.” The operator has provided evidence of the notice to keeper sent to the appellant. This states that the date of the contravention was 28 July 2016, and the notice has been issued on 4 August 2016. According to PoFA, this means the notice is presumed to be delivered on 8 August 2016. As such, I am satisfied, given the lack of evidence to prove otherwise, that the notice was delivered within the relevant period. After reviewing the notice to keeper against the other relevant sections of PoFA, I am satisfied that the operator has complied with the act. As such, the keeper is now liable for the charge. The appellant states that the signage is ambiguous and unclear. When entering a private car park, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review the terms and conditions, and comply with them, when deciding to park. Section 18 of the British Parking Association (BPA) Code of Practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand”. The operator has provided photographic evidence of the signage at the site displaying the terms and conditions of parking, this states: “Parking Tariffs Apply: Motorists must enter their full, correct vehicle registration when using the payment machine: Failure to comply with the terms and conditions will result in a Parking Charge of: £100”. The operator has provided a site map confirming the location of these signs, and also evidenced the entrance signage in location at the site. I consider the photographic evidence to show that the operator met the minimum standards set by the BPA, and that the driver was afforded the opportunity to review the signage at the site when parking. The appellant states that the signage does not state the clear purpose of the Automatic Number Plate Recognition (ANPR) cameras. While I recognise that the signs do not state what the operator will use the data captured by the ANPR system for, as the car park allows for additional payment to be made at the end of the parking period, I do not consider it has had an impact on the motorists ability to adhere to the terms and conditions of the car park. The appellant states that there is no breach of contract, as the driver spent 28 minutes waiting for an appropriate car parking space to become available, and therefore cannot be considered parked for this period. The operator has provided photographic evidence of the appellant’s vehicle, registration number FH63XSU, entering the car park at 15:09, and exiting at 16:38, totalling a stay of one hour and 28 minutes. The operator has provided evidence of the system record of registered vehicles, showing a search made for FH63XSU. This confirms a payment made for a total period of one hour at 15:32, giving an expiry time of 16:32. As such, this confirms that the motorist has failed to make payment for the full one hour and 28 minutes, and that a breach of contract occurred. In relation to grace periods, Section 13.1 of the BPA Code of Practice explains that “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice”. The Code of Practice does not define a reasonable period for these circumstances. This is because the reasonable period might depend on the circumstances of the car park, or the circumstances of the motorist. Upon review of the motorist’s circumstances as described by the appellant, I do not feel that such a grace period applies. The appellant has formed intention to park at the site by waiting for the space to become available, and I do not consider 23 minutes to be a reasonable period of time in which to decide whether to stay or go. The appellant states that the charge is an unfair contractual term, and does not represent a genuine pre-estimate of loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” Having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While I acknowledge the appellant’s comments in regards to Hotchin v ParkingEye 2014, the outcome of the Beavis case is the most relevant case in terms of whether a parking charge can be considered as a genuine pre-estimate of loss. Ultimately it is the motorist’s responsibility to comply with the terms and conditions of the car park. On this occasion, the driver failed to purchase sufficient parking time, and as such, failed to comply with the terms and conditions of the car park. The operator has complied with PoFA when issuing the notice; and the keeper is now liable for the charge. As such, I can only conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.



    I've underlined the bits that I couldn't quite get my head around.
    • Fruitcake
    • By Fruitcake 20th Oct 16, 12:48 PM
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    Fruitcake
    In your appeal you say the parking lie PCN was issued on the 12th of August, whereas the POPLA decision says it was the 4th?

    Which is correct? Can you post a redacted copy of the original PCN that you received please. If this shows the 12th then it could not have arrived within 14 days.
    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" - Laks
    • silentcow
    • By silentcow 20th Oct 16, 12:52 PM
    • 13 Posts
    • 3 Thanks
    silentcow
    It did arrive on the 12th in an un-franked, un-stamped enevelope. This is not uncommon from what I've read. Parking Eye put a date on the letter of August 4th to fabricate earlier postage. Nothing I could do to disprove this since it wasn't marked.
    • Fruitcake
    • By Fruitcake 20th Oct 16, 1:04 PM
    • 36,470 Posts
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    Fruitcake
    It did arrive on the 12th in an un-franked, un-stamped enevelope. This is not uncommon from what I've read. Parking Eye put a date on the letter of August 4th to fabricate earlier postage. Nothing I could do to disprove this since it wasn't marked.
    Originally posted by silentcow
    If this goes to court, then that is exactly what you say in your defence. Parking lie have not produced any evidence when the letter was posted, so have no proof they are telling the truth. PoPLA should be taken to task over this.
    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" - Laks
    • silentcow
    • By silentcow 20th Oct 16, 1:10 PM
    • 13 Posts
    • 3 Thanks
    silentcow
    I still have the envelope! I'm not quite sure why POPLA decided it was me that needed proof of receipt rather than them who needed proof of postage.
    • Coupon-mad
    • By Coupon-mad 20th Oct 16, 1:23 PM
    • 40,565 Posts
    • 52,449 Thanks
    Coupon-mad
    ''Upon review of the motorist’s circumstances as described by the appellant, I do not feel that such a grace period applies. The appellant has formed intention to park at the site by waiting for the space to become available, and I do not consider 23 minutes to be a reasonable period of time in which to decide whether to stay or go.''
    Really, Sophie Taylor? Try taking a baby or young children to the beach in Summer, then!

    So, this was one of the busiest car parks in Newquay, in the Summer Holidays in July. If it took 23 minutes between entry off the road, to actually getting a ticket printed, in my humble opinion as someone who has holidayed in Newquay, that's perfectly reasonable!

    Would have likely been something like 3 - 4 minutes to drive in and then along the roadway, probably in a queue dodging pedestrians carrying surfboards.

    Then into the car park, then spot there were no bays (which the appellant specifically explained in the appeal, needed to be on the end of the row to allow the removal of a baby seat from the back door). So they wait maybe 15 minutes for a space to become free, then park. Then they unstrap the baby, grab their beach paraphernalia, baby bags etc., buggy, et al, look round for a machine and go and pay (that final bit taking say, 5 minutes).

    Perfectly reasonable, given the circumstances and location and time of year. How would it occur to any reasonable person standing at the machine that they had to pay for the time taken to get into the busy car park? Seeing as the POPLA Assessor admits the signs do not inform drivers about that? Are they meant to be psychic and add time on, when that was NOT parking time?

    Why would anyone think that a consumer should think of that daft interpretation of time and that all a consumer needed was a watch?!

    They then exited within five mins of the expiry of the ticket. Perfectly reasonable. Jeez they could have stayed ALL DAY and got the same £100 charge but they rushed back and left, as you would, oblivious and CERTAINLY NOT having 'agreed' to a contract to pay an extra £100 over and above the tariff.
    Last edited by Coupon-mad; 20-10-2016 at 1:42 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Fruitcake
    • By Fruitcake 20th Oct 16, 1:36 PM
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    • 73,306 Thanks
    Fruitcake
    ... and parking lie lost a court case where someone spent over twenty minutes driving around a hospital car park looking for a space, and in fact never parked at all but still got an unfair PCN.
    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" - Laks
    • Coupon-mad
    • By Coupon-mad 20th Oct 16, 1:44 PM
    • 40,565 Posts
    • 52,449 Thanks
    Coupon-mad
    And there was IvorPeCheque's case in Fistral car park, Newquay which was 31 minutes driving round looking for a space at the start then they gave up and left. And the Judge quite rightly said there was no cause of action to pay £100.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Castle
    • By Castle 20th Oct 16, 2:00 PM
    • 1,070 Posts
    • 1,325 Thanks
    Castle
    In my opinion the grace period cannot start until you have been made aware of the terms and conditions. The period between entering the car park and reading the "contract" terms is at best "an invitation to treat".
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