Tower Rd Newquay Parking Eye

pMcfly

Hi

Got to write an appeal for my mom and dad for this. They were there less than 20 mins looking for a space and seeing how close the beach was. My mom has leg issues and is not very mobile. Drove out and PE letter arrived later.

I'll obviously search these forums but wondered if anyone has any successful tips for the letter - or templates - I can work from for this car park.

Cheers

Stroma

You can write to them explaining that as they didn't actually park their ticket is not valid as the grace period is not sufficient. Entering the car park does not mean parking, it just means entry, and the same on the way out.

Also explain that their excessive charge does not represent a true estimate of loss, and you will take it to popla if they don't cancel this charge immediately. Inform them that you know they can't provide an accurate reflection of the loss , so you invite them to cancel the charge now.

Umkomaas

pMcfly wrote: »

Hi

Got to write an appeal for my mom and dad for this. They were there less than 20 mins looking for a space and seeing how close the beach was. My mom has leg issues and is not very mobile. Drove out and PE letter arrived later.

I'll obviously search these forums but wondered if anyone has any successful tips for the letter - or templates - I can work from for this car park.

Cheers

Not sure how much about parking charges you already know, but you might find the following helpful; it works through the various stages to follow. It's one I prepared a little while ago but will be applicable to your parents' situation.

There is also an issue for you to explore and consider - the Equality Act 2010 which requires adjustments to be made for those who have long term health issues - Coupon-mad is the EA expert on here and will probably add to this later.

Anyway, for now, here's a walk-through of the process. Get back if there's something you don't understand.

A WALK THROUGH THE PROCESS

Firstly, you don't have to pay the charge, it is not a fine, it is not a penalty, it is a speculative invoice from a Private Parking Company that has no statutory authority. However, you will need to go through a few hoops to get rid of it.

The first thing you MUST do is to start to understand what all this stuff is about. The only way to do this is to spend a day or so reading this forum - the most recent threads, say from the past month. If you see the advice 'IGNORE' you MUST ignore it. Ignoring a Parking Charge Notice will bring you months of fun and games that I can assure you, you don't want to be dealing with.

In a nutshell this is the process you will need to follow.

1. Read recent threads.

2. If the parking incident was at a retail park/shop go back to the store the Parking Charge Notice relates to and see THE manager, complain about a genuine customer being harassed and ask that they cancel the ticket. Show him/her any receipts for the day in question. If they are unable to do this ask for the name and address of the MD/CEO, as you will now write to them (and DO it!).

3. If it was a general car parking facility you need to find out who the landowner is (Google search) and send off a letter of complaint to them.

4. If you have receipts for the day (or bank/credit card statements) proving purchases, send (redacted) copies of them to PPC with covering letter stating you were a customer on the day, and shopping at their principal's establishment was the only cause of any overstay.

5. If 2, 3 or 4 above don't work, then you're into the more formal stuff.

6. If it was a windscreen ticket, do not contact the PPC at this point, you must wait for the 'Notice to Keeper' (NtK) to arrive. This should be no sooner than 28 days after the incident and no later than 56 days after it. Theses dates are very important, and you must retain all tickets and letters you receive.

7. If it was an ANPR camera incident and the first correspondence you've received is the NtK, this needs to be received within 14 days of the incident; as above, dates very important, retain all paperwork.

8. Once you receive the NtK the process below will need to be followed.

9. Soft appeal to the PPC (you'll understand this when you start reading the threads).

10. Likely rejection, so in your soft appeal you ask that a POPLA code be given to you if your soft appeal is rejected.

11. Lots more reading about POPLA Appeals (read the 'sticky' at the top of the forum index 'POPLA Decision', especially the last couple of months' reports of victories - it will give you a good idea of which points win at POPLA).

12. Draft POPLA Appeal and let us see it for further advice before submission.

13. Send to POPLA.

14. Await POPLA (positive) result with PCN cancelled - we're running at 100% success rate on the forum. A POPLA decision is binding on the PPC, but (in the event of an unlikely loss), not binding on you.

---

Please confirm a couple of things (if they are not already contained in your opening post)

a. Was the incident, and do you live, in England or Wales?
b. Is the car a lease/hire or company vehicle (important as the process will be slightly different and you will need to act quickly)?
c. Are you under 18?

---

Now - final, but IMPORTANT points.

* Never say who might or might not have been the driver on the day - there is no obligation on you to do so (some PPCs will ask you to name the driver/motorist before they can deal with your appeal - DO NOT comply with their wishes). In any correspondence with the PPC, always refer to the driver in the third person, never say 'I didn't see the signs' or 'my wife didn't see the signs', you say 'the driver didn't see the signs'.

* Always be aware of any deadlines, PPCs impose them (but most of these are challengeable), but if they are reasonable do keep to them. The important one is the POPLA deadline - strictly 28 days from the date the rejection letter containing the POPLA verification code is sent to you by the PPC. Miss it and you miss the one golden opportunity you have to totally kill this charge. I cannot stress that enough.

Sorry this is a bit long, but it does more or less cover most bases.

Coupon-mad

Yep just send a challenge from the registered keeper (NOT implying who was driving) saying:

1. The driver that day did not park at all, because the passenger was disabled and they couldn't find a space close enough to the beach, despite driving round desperately for a good 15 minute and then leaving. So there was no parking space taken, therefore no contract can be alleged by PE whatsoever.

2. As the passenger was disabled they are entitled to a 'reasonable adjustment' under the Equality Act 2010, and harassment of a disabled person and their carer is specifically illegal within that Act.

3. Say if they reject the challenge they require a POPLA code.

You can send this appeal in minutes online (as the ticket tells you) and YOU can do it for them. When I appealed a PE ticket for my cousin the other month I just set up a Hotmail account in his name to do the appeal and to handle any response for him. I wrote as if I was him, the registered keeper.

Make sure you tell them to keep an eye out for any written reply in the post and NOT to pay if the letter is a rejection of appeal. You WILL WIN this for them at POPLA stage if you take our advice about that appeal too.

pMcfly

Hi

I've drafted the appeal to POPLA.

Not sure if anyone wants to review it, hopefully I've covered all the main points from all the superb literature on this forum.

Thanks
pMcfly

Coupon-mad

You aren't at POPLA stage yet are you?

pMcfly

Yes. After 2 letters to PE they sent me the POPLA code and paperwork.
So I've drafted the appeal on behalf of my mom.

Coupon-mad

OK, post it up, we can help to make sure it's another likely winner!

pMcfly

Do I just post it here the full text?

I presume I have to anonymise etc

Coupon-mad

Yep.

Just remove the car reg and dates, put xxxxxxx instead.

pMcfly

POPLA appeal
Parking Eye parking charge notice xxxxxx

I am the registered keeper of vehicle and I contend that I am not liable for the parking charge. I wish to appeal against the PCN notice on the grounds outlined below. I have enclosed all the copies of the correspondence with Parking Eye as evidence to this appeal.

Appeal points

1) The penalty is excessive and punitive
b. Firstly I contend that a stay of 17 minutes on the car park can in no way lead to charge of £100. It is punitive, excessive and is no way a genuine pre-estimate of loss. We can therefore assume that this punitive charge is a penalty and not a valid charge and therefore as a penalty should be dismissed.

2) Not a genuine pre-estimate of loss
a. Parking Eye have not provided any evidence to me detailing their pre-estimate of loss for the 17 minutes that the vehicle was in the car park.
The BPA code of practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

19.6 If you’re parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable
b. If the pre-estimate of loss contains any of the following, then I contend that these are the costs of running a business and I require the PPC to confirm to POPLA whether or not the pre-estimate of loss contains some or all elements of

• Erection and maintenance of the site signage.
• Installation, monitoring and maintenance of the Automatic Number Plate Recognition systems.
• Employment of office-based administrative staff.
• Membership and other fees required to manage the business effectively including those paid to the SPA, DVLA and ICO.
• General costs including stationery, postage, etc.

Therefore, these 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services vHetherington-Jakeman (2008) also OB Services v Thurlow (review, February2011) and in the case with the same Operator, Parking Eye v Smith(Manchester County Court December 2011). Parking Eye will not be able to refute this fact - however many pages of evidence they may send to POPLA - and so this punitive charge is therefore unenforceable in law.
c. On the day in question the Tower road car park has a charge of £7.20 for the period 8am to 10pm. For 1 hour the charge is £1.80. Even without a reasonable grace period the vehicle being in the car park 17 minutes can in no way lead to a pre-estimate of loss of £100. As Parking Eye are not the landowner and the car park is not owned by a commercial, revenue generating establishment therefore £100 charge is not a genuine estimate and is a penalty.
d. If the charge of £100 was a valid pre-estimate of loss then why do Parking Eye reduce the charge for early payment and keep extending the time to pay at the reduced rate through additional letters.
3) Lack of contract and proprietary interest
a) A parking ticket was not purchased on entry to the car park. The vehicle was left in neutral but ticking over. The 70 year old passenger with 2 replacement knees was left in the vehicle whilst another passenger left the vehicle to ascertain whether the beach was close enough for the 70 year old passenger to walk to. After a quick 5 minute recce of the area the passenger realised the beach was probably reachable for the passenger. The driver then tried to find a relevant space, which was difficult as the car park was busy. After some time circling the bays a space was found and the driver attempted to purchase a ticket. The driver also being 70 years old did not have the correct change and attempted to pay via text but could not understand or apply the rules to this process. After a few minutes to try and work this out the driver decided that they should leave the car park to get change and park legally. 17 minutes in all had passed. As a parking ticket had not been purchased we can consider that no contract was entered into.

b) The Operator alleges that, on the date in question, the driver of the vehicle remained in the car park for longer than the stay they allege is ‘authorised'. Parking Eye are also on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable”. So they are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.

Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. The Tower Road car park landowner is the Newquay Golf Club.

Parking Eye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Parking Eye have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether Parking Eye have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

There is no contract between Parking Eye and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
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.

(2) 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.
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA COP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

4) Grace period
The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Parking Eye rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.
Given that the period from entry to exit was just 17 minutes, at a time when the car park was very busy, that the car was not actually parked, nor a ticket purchased we can deduce that this is not a reasonable period and enforcement action is not valid.
5) Lack of visible signage

There is no visible signage on entry to the car park that it is operated by Parking Eye or what charges apply. There are no terms and conditions on entry to the car park. The signage within the car par was opposite to the direction of travel on entry. The car park was extremely busy in the day in question and the overspill grassy area was being used.



I contend that the signs and any terms Parking Eye are relying upon were too small and inappropriately positioned for a driver to see, read or understand therefore no contract can have been entered into. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs in that car park (wording, position, clarity and positioning) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Ltd martin Cuts, 2011)

6) Breach of Pofa2012 and BPA CoP

Parking Eye failed to send a POPLA reference when I requested it in my first letter. I had to write and ask for it again and finally it arrived.

7) No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Parking Eye, there is no specific identification of the Creditor who may, in law, be CE Ltd or some other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that ‘The Creditor is…’ and the Notice does not.

Given the eight points outlined above I respectfully request that my appeal is upheld and the charge dismissed.

Regards