Tower Road, Newquay

Ivor_Pecheque

new embryonic group on facebook..... https://www.facebook.com/groups/newquayprivateparkingproblems/?fref=ts

salmosalaris

Change of tack !

salmosalaris

Time to prod again for an update on your case and answers to your questions if you haven't received anything

Parkrage

Hi Salmosalaris,

All that's happened is that I've rec'd the BPA Reference Code, and am waiting to hear the result.

salmosalaris

@parkrage

Can you post up your full POPLA appeal that you submitted

Parkrage

I have so many versions of my Appeal 'on disc' that I wasn't entirely sure which was the one I eventually sent, so the following is what POPLA sent me back:

Why they are appealing:
Charge exceeded

Appeal reasons:
POPLA Appeal POPLA Ref: xxxxxxxx Vehicle Reg: xxxxxx Operator Name: ParkingEye

Dear POPLA Adjudicator,

I wish POPLA to consider my appeal against PCN xxxxx on the following points:

1. I am the registered keeper of vehicle xxxx. There was no breach of contract. I can confirm that the driver fully paid for the period of parking in accordance with the signage. This can be confirmed by a supporting independent witness statement and photograph(see attached). I can only assume that either the machinery is faulty or possibly an incorrect VRN was entered but in either case there is no loss caused to ParkingEye at all, let alone one that can justify a claim for £100-00.

I demand that ParkingEye produce evidence that payment was not made if they believe it was not .

The driver paid initially for a stay of 3 hours, then in accordance with the signage which states "additional time may be purchased if required" payment was made for further time prior to leaving . If ParkingEye are attempting to assert that payment for all day was required for the stay I would remind the assessor that under the principle of Contra Proferentem and UTCCR 1999 any ambiguity in the term of a contract must be read in the manner most beneficial to the consumer. All Day parking is described as 8am-10pm; the vehicle was not parked for that length of time.

Additionally ParkingEye have produced two images of the vehicle entering and leaving the car park with supposedly accurate timings. Firstly, I demand that ParkingEye produce independent verification that these timings are accurate and can be relied upon as evidence.

Secondly, the timings are irrelevant for the purposes of measuring the parking stay. They are taken at arbitrary positions at the entrance and exit, of which the driver would be unaware. The supposed stay has taken no account of reading the Terms and Conditions, making the payment, finding a parking bay and parking, and then leaving the bay thus making it available for another vehicle, and finally exiting - and all of this in a busy car park! I put Parking Eye to strict proof that the vehicle was parked for longer than the time paid for because so far they have provided none whatsoever, and I deny that it was. With reference to the signage what actually is a ‘stay’? I would assert that again under the principle of Contra preferentum "stay" must be read in a way that is most beneficial to the motorist which in this situation was the time the vehicle was actually occupying the parking bay, a time fully paid for.

2. It is believed that ParkingEye claim to be the leaseholder of this car park. I demand that they produce a copy of the lease that would demonstrate that they have a proprietary interest in the land and therefore the legal right to bring such a claim.

3. If they do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

4. The contract entered into between the driver and ParkingEye is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to prevent drivers from underpaying or to profit from inadvertent errors, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If ParkingEye believe that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss. The vehicle parked for an authorised stay that was fully paid for. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If ParkingEye believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this was calculated with specific reference to how incorrectly entering a VRN or their failing to record a payment would incur any loss at all.

Even if payment was not made, which is denied, their only loss would be the parking tariff.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist.

This is in stark contrast to the present case where there was an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made provided payment was made.
This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made or a VRN incorrectly inputted into a machine when the vehicle would otherwise have been welcome to park as it did.

A contractual term whose sole motive is to deter non payment is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.

5. The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £100 is clearly grossly disproportionate to any purported loss which would only be a small parking tariff if no payment had been made at all which is denied.
b. The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist.

6.. ParkingEye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act

a.The unpaid parking charge that should have been requested ( paragraph 9(1) of the Act ) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that ParkingEye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

b. ParkingEye have spectacularly failed to notify me why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. Which is it? The Act demands that the reason for the charge is made clear and again ParkingEye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions

This appeal should be allowed and the Parking Charge Notice cancelled. Yours sincerely,

Xxxx (Keeper of the vehicle)

salmosalaris

Well I'd argue that there are plenty of points other than the charge being excessive that require full assessment and a written explanation of how the operator has succesfully answered them to the satisfaction of the assessor .
That's what you would have received prior to these adjournments and that is what you should receive now .
Anything less would raise many questions about the whole process .

Coupon-mad

A very good POPLA appeal re the scam of PE using two different timings and favouring the one that starts unbeknown to consumers before the contract is even started at the P&D machine, the timing which operates disadvantageously and unfairly against drivers who rely (understandably) on the printed receipt from the machine.

Deceptive, misleading and unfair under the UTCCRs and CPUTRs, I'd say (and have said a lot recently to new POPLA!).

Your points about the NTK alone are valid for showing 'no keeper liability' because NTKs must state the ourstanding parking charge unpaid by the driver as at a date BEFORE the date of the postal NTK (can't be the £100). You have got to be right with that IMHO, what else could it mean with that specified timing in the Act? I've been including it in POPLA appeals about tariff car parks since March but all cases since have either remained stayed or have been upheld - appeals won - on other issues.

Steve Clark (no e on the end) is considering the position about these adjourned cases - I know of hundreds I have written, none of which hinge on the Beavis/GPEOL/parking charge issue alone. Almost all of which use similar words that you've used about the NTK and many of which have really OBVIOUS omissions in the evidence packs received (yet the cases stayed adjourned).

I've got missing landowner authority in evidence packs, missing NTKs where firms only issued a PCN on the windscreen and were too stupid to read the Act and suss that they still have to serve a NTK, and missing other evidence which I won't mention here but the BPA know about because I've mentioned it to them. If an Assessor missed these omissions they were either mad or drunk, so I don't believe they have been looked at by POPLA at all.

I also found a POPLA email in post #11 here, which admits 'your case has not been considered in any way' when all the pre-Court of Appeal cases were stayed:

http://www.legalbeagles.info/forums/showthread.php?62985-PCN-Parking-Eye-Appeal-denied-Now-POPLA-Appeal-or-pay

Check your POPLA emails, maybe one of them says something similar although that one relates purely to those cases stayed in a huge pile from March till May - then they were almost all never rescued.

A decision should come about this debacle in a couple of weeks, as I understand it and to be fair to the BPA, they must have been utterly stunned by all this when so many people have said 'oi, my case has NOT been assessed on any of my appeal points and I can prove it because I would have won on x or y by now if an Assessor had scrutinised it.'

Don't worry, you are far from alone and the facts about these stayed cases have been spelt out will continued be spelt out. Consumers like you MUST be given a fair full Assessment of your POPLA appeals and anything less would be a disgrace...I don't think with the wealth of evidence put to the BPA so far, that old POPLA can convince them these are all assessed save for Beavis issues. I'm not saying it was deliberate, whatever caused this, in fact surely it can't have been intentional/must be a mistake as it's so unprofessional and wrong. If (and I have no idea how this misinformation crept in, could have been a mistaken assumption repeated often enough that everyone believed it) someone at POPLA wrongly told the BPA every case had been assessed, then where is the signed assessment for each of the 4000 cases? And how come they missed the bleeedin' obvious (and I mean REALLY OBVIOUS) stuff some of mine are missing in the evidence packs?

Parkrage

Wondered if anyone can suggest how/why PTJBS05's case https://forums.moneysavingexpert.com/discussion/5317558 has been (sucessfully!) resolved when they first reported it in September, whereas mine is still ongoing (with new POPLA) and I started it in June! :-/. Both are at Tower Road, Newquay.

salmosalaris

Your appeal is not with "new POPLA" it is in the black hole (with possibly thousands of others ) created for one reason or another when an assessor at "old POPLA" apparently determined that the only issue the operator had failed to successfully answer was the amount of the parking charge so a decision was stayed pending Beavis .


I'd guess the BPA have no idea what to do with these .As I believe there to be evidence that some of these cases have issues that easily distinguish them from Beavis ( thereby raising questions as to whether full assessment of all points did actually occur if no written assessment is available ) the BPA either has to instruct new full assessments which would be the correct and fair approach , accept that all other issues have been settled and adjudicate purely on gpeol (which would be unfair and lack transparency witnout a written explanation as to why an appeal point had failed and would result in a maelstrom of complaints ) or cancel them .

Even if your case is adjudicated purely on gpeol. as yours was a contract involving payment Beavis is arguably supportive of your case , especially the remarks from the CoA that went into your initial appeal . The SC judgment didn't come up with anything to disagree with the CoA remarks .

In the thread you refer to PE cancelled the charge rather than contest the appeal .
Currently PPC's are still cancelling tickets possibly when new appeals raise points they would rather POPLA did not adjudicate on, raise genuine reasons not mentioned in the initial appeal or maybe for simple financial/logistical reasons . They cannot simply cancel in these cases without losing credibility and a shedload of cash .

A nice little mess