Another Parking Charge from Newquay

millmoll1

How would that work if it's just a copied and pasted format -I am not trying to send as an attachment?

Coupon-mad

Seems to be a newbie glitch today with posting new threads so not sure if you have found another glitch. Were there no links among your wording?

Try posting it a paragraph at a time, then editing and adding another, and another, to the same post.

millmoll1

Hi all you experts, please could you cast your eyes over this POPLA appeal that I would like to send off in the next couple of days.

Should I include:-
Anything about their contract with the landowner - or lack of?
Any comment re vagueness of charge - 'for either not purchasing appropriate parking time or by remaining at car park for longer than permitted'
Thanks so much for the help so far!

Dear Sirs

POPLA REF

---

Parking charge notice .....................

I am sure you are aware of the following information taken from the BPA website which indicates how reputable operators should behave :-
‘Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner.”
I would therefore like to hope that the POPLA service ensures that all operators work in a reputable manner by upholding appeals such as this, where it is obvious that such a short time has been spent in the car park and such an excessive charge is therefore inappropriate.
On the.../.../2013, Parking Eye issued a £100 parking charge notice from a car park managed by an ANPR system, alleging a period of a mere 12 minutes being spent in the car park. I appeal on the grounds that I am not liable for the parking charge, the vehicle was not improperly parked and the 'parking charge' exceeds the appropriate amount.
I am grateful for your time in considering the following reasons why I am appealing this charge.

The charge is a penalty and not a genuine pre-estimate of loss.

The large sum demanded amounts to a penalty and is not an accurate reflection of any loss suffered, so it is not a ‘reasonable charge’. I believe that the amount of charge is disproportionate to the suggested loss incurred by Parking Eye and therefore the charge is not as described in paragraph 19.1 of the BPA’s Code of Practice.

I believe that the fee being charged is ‘unfair’, as deemed by The Unfair Terms in Consumer Contracts Regulations 1999. Under the Unfair Terms in Consumer Contracts Regulations 1999 a list of terms is presented which may be regarded as ‘unfair’ and includes Schedule 2(1)(e) : -
‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’.

Also, Regulation 5(1) states: -
‘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.

Regulation 5(2) states: -
‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

Information from the Office of Fair Trading, Unfair Contract Terms Guidance (OFT 311) states: -
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

Example 1 :-

The Operator submitted that the charge is based upon the cost of enforcing parking restrictions at the site (for example, by erecting signage and employing administrative staff) and the charge was agreed by the land
owner and specified on site signage.
However, this does not represent a loss resulting from a breach of the parking contract. The loss specified by the Operator is the cost of providing parking enforcement at the site. In other words, were no breach to have occurred the cost of parking enforcement would still have been the same.
Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.
I must allow the appeal on this ground.
Matthew Shaw
Assessor

Example 2 :-

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 the parking charge does not amount to a penalty. As the Appellant submits that it exceeds the appropriate amount in relation to the British Parking Association Code and The Unfair Terms in Consumer Contracts Regulations 1999, the burden of proof shifts to the Operator to prove otherwise. The Operator has not discharged this burden. Accordingly, this appeal must be allowed.
Shona Watson
Assessor

Example 3 :-

The Appellant disputes that the PCN was properly issued. Amongst other grounds, it is the Appellant’s case that the £100 parking charge was “arbitrary and disproportionate” to any loss resulting from parking at the site.
The signage produced in evidence by the Operator states that a PCN would be issued for “failure to comply” with the parking conditions. This wording appears to indicate that the parking charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The Operator submitted that the charge “is a genuine pre-estimate as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these.” The Operator gave examples of such costs, including the cost of erecting site signage and the cost of membership of the Driver and Vehicle Licensing Authority.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. However, some of the costs referred to do not represent a loss resulting from the alleged breach. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same.
Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.
I must allow the appeal on this ground.
Accordingly, it does not fall for me to decide any remaining issues.
Matthew Shaw
Assessor

Example 4 :-

Parking Eye v Smith (Manchester County Court December 2011) At the Parking Eye v Smith hearing the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

Example 5 :-

OBSERVICES v! THURLOW!!! 
Review of Case (5), 10th February 2011 This hearing was a review of the decision of District Judge Nield! of 18th March 2010
“In my judgement the answer is clear.! £100 is not a genuine pre estimate of loss, if it were why is he prepared to accept £50 (if paid promptly)?! It was clearly a threat to deter parking.’
”The judge finally ruled that: “On the basis that the effect of the notice is effectively to seek to impose a penalty clause.! It is unenforceable.! No loss or damage is asserted or proved.! In these circumstances the claimant has no claim and the appeal is allowed”.

Grace periods

I have requested that PE provide details of their allowed ‘grace period’, which they have failed to do. I am mindful of the fact that the nearby ............ Car Park, which is also operated by PE, allow a 20 minute ‘grace period’ , which would feel appropriate and just.
It seems ludicrous that PE could charge £100 for a vehicle to enter their car park, drive around, change their mind and exit the car park without ever occupying a space.
As you can clearly see from the PE PCN, the short time that the vehicle was in the car park was 12 minutes. Please note that this car park is not attached to any retail or leisure facility, other than a Crazy Golf area. I have requested photographic evidence that the vehicle in question was ever parked, which they have failed to provide.
Section 13 of the BPA code of Practice clearly shows general conditions which need to be adhered to in relation to grace periods :-
13.1 !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.
13.2 !You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 !You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 !You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.
In relation to signs, Section 18 of the BPA Code of Practice states that :-
18.5 !If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.

ANPR requirements - Section 21 of the BPA Code of Practice

I would like confirmation that the cameras in this car park are compliant and evidence to confirm that, in 2013, contemporaneous manual checks of the cameras, clocks and related machinery in this particular car park have been performed, to ensure that the timing and detail of any images captured were accurate on the day of this event.
These maintenance checks are a requirement of Section 21 of the Code:-
21.1 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.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

No formation of contract with the driver

To suggest a breach of contract, Parking Eye also needs to show that the driver actually saw, read and accepted the terms, which they cannot do as it is clearly untrue. The idea that any driver would accept these terms to pay this charge knowingly is perverse and beyond credibility. The truth is that the driver did not see, understand nor accept the alleged terms. Parking Eye may claim that generic signage is displayed around the car park, but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract. The driver reports that they had absolutely no knowledge that ANPR technology could be used in this manner and feels that a relatively small, insignificant silhoutte image of a camera on a sign is insufficient warning to any user of the car park that such a system is in use.

The sign on entry to the car park was too far away and too high up, therefore impossible to read as you were driving in.
Because the signs on entry fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.
As previously mentioned, the driver did not park and did not leave the car at any time and therefore it would have been impossible to have read the full terms of this car park on any other signage.
I any case, I believe that the ‘small print’ on the bottom of the sign fails t

millmoll1

...........final chunk for POPLA

In any case, I believe that the ‘small print’ on the bottom of the sign fails to comply with BPA guidelines.

This would be like someone picking up an item in a clothes shop, trying it on, deciding not to purchase it and then still being charged for an item that is not suitable, or they do not want.
I would like to re-emphasise that no loss was incurred by the landowner at any time, as no parking space was ever occupied.

In conclusion, in relation to all the evidence provided, I therefore suggest that this penalty is unenforceable and the charge should be dismissed.

Thankyou for considering this matter.


Yours faithfully


Thanks coupon mad - worked eventually after several attempts - still having problems with this last chunk - hopefully all there now!

Coupon-mad

Should I include:-
Anything about their contract with the landowner - or lack of?
Any comment re vagueness of charge - 'for either not purchasing appropriate parking time or by remaining at car park for longer than permitted'?


Yes, I would say so to both points.

Looks like some of your paragraph about the signage is chopped off above but I am sure it doesn't end like that in your actual version?

Nice and refreshing to read one that someone has written in their own words and it doesn't matter that it's long IMHO. Just do NOT try to copy & paste it into the POPLA appeal box online as it won't fit. You will need to either post it or attach the appeal as a PDF link in the submission box.

millmoll1

Thanks coupon mad - you deserve a medal for all the support you give to people on here!!

Hovite_2

millmoll1 wrote: »

Thanks coupon mad - you deserve a medal for all the support you give to people on here!!

Indeed she does !

millmoll1

Never believe what came in the post today - a letter from Parking Eye cancelling ALL charges!!

Thanks everyone for giving me the courage to challenge this, and for all the information for my POPLA appeal, although I never got to use it!!
Special thanks to Coupon mad and Guys Dad!

Guys_Dad

millmoll1 wrote: »

Never believe what came in the post today - a letter from Parking Eye cancelling ALL charges!!

Thanks everyone for giving me the courage to challenge this, and for all the information for my POPLA appeal, although I never got to use it!!
Special thanks to Coupon mad and Guys Dad!

Great news. What appeal point did you use to get the cancellation as this may help others.

Coupon-mad

I reckon they've read this thread, and saved themselves the POPLA fee!