Parking Eye Fine - Fistral Beach

siross

Thank you, just sent that in now. I've started working on my POPLA appeal using Guys Dad's recent template and all I've really amended is the bit about signage to incorporate my bit about inadequate lighting.

Should I upload what I have so far or wait for the POPLA code to finally come through?

Thanks,

Simon

Coupon-mad

Up to you, now if you like!

siross

OK, here it is. It is 99% from Guys Dad, I've highlighted additions:

APPEAL RE: Parking Eye CHARGE XXXXX/XXXXXX
CAR PARK: Atlantic Hotel (Cliff Top) XX/XX/XX
VEHICLE REG: XXXXXXXXXX

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.


2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Furthermore, the signs are not lit which renders reading them at night impossible. As at the time the Parking Charge was incurred (28/10/2013 17:38) it was dark and therefore not possible to see any signs which is not compliant with the BPA standards.
The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

4. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss following 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 parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

Furthermore, I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, it cannot, be a true pre-estimate of loss
Will need to insert letter here also

This concludes my appeal.

Coupon-mad

I tried to edit this a little but my PC froze.

I wanted to suggest:

- some words whole paragraphs need to be removed as there's a lot of repetition!

- you add PE v Sharma and PE v Gardam, as compelling recent court decisions, as examples about PE not having the legal standing to pursue charges and as examples of where witness statements have been debunked, you could attach this list:

https://forums.moneysavingexpert.com/discussion/comment/63825873#Comment_63825873

and this blog is specifically outing the irregularities with Fistral Beach 'witness statements':

http://parking-prankster.blogspot.co.uk/2013/11/parkingeye-witness-statement-debacle_19.html

and here are the recent court cases I have mentioned:

http://forums.moneysavingexpert.com/showpost.php?p=62971894&postcount=65

- I suggest that 'no GPEOL' is moved up to be point 1 or 2

- and add in a citation about BillyTheSquid's case if this was the same car park, get his case number if he is happy to tell you it, and see if he also has the pics of the unlit signs that helped him win:

https://forums.moneysavingexpert.com/discussion/comment/63599586#Comment_63599586

- and that you add a 'no grace period - breach of BPA CoP' paragraph, mentioning that (I think) the Briants who are the occupiers, have mentioned a 20 minute grace period somewhere, anyone remember it??

- and suggest you add 'ANPR unreliable and not BPA compliant' quoting the BPA CoP below, lack of clear signs telling you what the collected data would be used for, and also as a connected point, citing PE v Fox-Jones as well.

The BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
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, consistentand 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.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

siross

Thanks for this, much appreciated. I'll do some more digging and make some amends and post back for comment.

Thanks again for all the help!

Coupon-mad

http://www.newquayvoice.co.uk/news/5/article/3428/

20 minute grace period if it's this car park.

siross

No it's not the one directly on Fistral Beach it is located on Dean Road near the Atlantic Hotel.

Simon

Coupon-mad

Can you Google it and find out who it's owned by - Atlantic Hotel? What did they say? You could send a pm to EHBA as he managed to get pics of the other Fistral car park for BillyTheSquid, maybe EHBA has a local contact there?

EHBA

Just a reminder it is Dane Road, not Dean Road and if it is the one opposite the middle of the terrace of Victorian guest houses, the PE signs call it Dane Road. The council car park just up the hill on the left is also called Dane Road car park.

As per post 20, the car park is very likely to be owned by The Atlantic Hotel ( Newquay ) Ltd and Anthony Cobley, a director, is likely to be the person who knows exactly who owns it

siross

Thanks EHBA, PE refer to the car park as Atlantic Hotel (Cliff Top) in the letters.