Tower Road, Newquay

Parkrage

Parkrage wrote: »

Once we challenge the fake PCN, does this extend the time taken when the Parking Company 'need' to receive their payment?

. Please cld someone respond to this, ta.:beer:

Redx

Parkrage wrote: »

. Please cld someone respond to this, ta.:beer:

hi

nobody is interested in any "interim" score

we believe you will appeal, win and pay nothing , no "middle ground" , which is why you dont get answers

we dont care what PE may say or do, only the result once the member (you) has wised up to the overall game and not get bogged down with the "fine print" in the middle , it is an unregulated industry, yet you want definitive answers as if there are regulations in place

in my experience of helping on here, parking companies think they can do as they please due to it being an unregulated industry, there is no ombudsman or overseer who will kick their backsides, the BPA rarely do

the BPA CoP tells you what the BPA rules are (which get flouted daily) , so read it, as it says what the PPC "should do", or not do

you should concentrate on the end game, getting it cancelled by PE, getting it cancelled at POPLA if PE dont cancel , getting it cancelled by the landowner anyway

nothing else matters

so would I answer your questions about "what if" or the vagaries of the small print about "who should do what and for how long ?" , no I wont , I will tell you to read the rulebook, ie:- the BPA CoP

the score in the middle of a game is not relevant , the injuries are not relevant, only the score at the end is relevant , I believe that score is a victory for common sense, where YOU pay nothing

I see you have posed a few questions like this that have not been answered, the silence speaks volumes to me , it means we are not going to discuss those issues in or enter into a wider debate on the "what ifs" , certainly not for free anyway , lol

life is too short, so get a grip and focus on winning, not debating the small print (after over 2 years reading this forum I have found that Parking companies do as they like and bamboozle people like you with smoke and mirrors, dont fall for it)

if you really want to study this topic to the nth degree, then please do so, but most forum regulars here will only help out as regards the "end game" , not debate it at half time like pundits do on the telly (too much analysis, not enough focus on winning) just because you have found a new topic to write about

if you do enough searching of the forum, the answers to your questions are there , I rarely see anything that hasnt been debated or answered already, which is why we usually point people at other existing threads , its all been said, but people always want instant answers now and dont do enough research of their own

good luck

Parkrage

OK, I've rec'd the rejection letter from PE, and been given a POPLA code.

Hence the following is the first draft of my POPLA Appeal.

Unfortunately I didn't retain the parking ticket rom the machine as I was unaware of any problem until two weeks later, when I received the PCN.
I wondered whether I need to say something to this effect in my POPLA Appeal?

I am conscious that parts of it are repetitious and could possibly be streamlined, so I'll continue to mull over it. However, I'd be grateful for any comments/suggestions etc:

POPLA Appeal

POPLA Ref: redacted

Vehicle Reg: redacted


Operator Name: Parking Eye

Dear POPLA Adjudicator,

As the registered keeper of the car detailed above I wish to appeal and have cancelled the Parking Charge Notice issued by ParkingEye Ltd for a number of reasons, which will be detailed below. However, the background is as follows:

Summary

On the day in question we intended to pay a short visit to Newquay, especially to look at The Huer’s Hut, but while there, take the opportunity to explore the town. Preliminary research had shown that The Huer’s Hut is not Far from Fistral Beach, and so we were following the ‘Fistral Beach’ signs as we passed through the town. We then saw a sign to a car park indicating that is ‘5 minutes walk from Fistral Beach’, and decided to turn in there. There was nothing to alert us to the fact that this was anything other than a normal Local Authority car park. We certainly saw no signage alerting us to the fact that APNR was in use, and that it was used to calculate the parking fee.

There were plenty of vacant spaces in the car park and we parked close to the entrance, not far from the parking meters. There were two other couples ahead of us waiting to pay at the meters, one of the couples being German. So, together we read the cost, and I changed a £10-00 note with the English couple, in order to be able to pay the fee. This obviously took up some time, particularly as the right hand meter of the two meters was not working.

Meanwhile, I was reassured by a prominent sign above the meters saying words to the effect, ‘Don’t worry if you stay longer than anticipated. You can pay the difference when you return’.

We decided that we would pay for a stay of 3 hours but, in the event, we were longer than anticipated and so paid for an extra hour when we returned.

The meters were of a type where one had to key in the Vehicle Registration Number, and so we had to do this twice during our stay. It is of course possible that we mis-keyed the VRN, but unlikely that we did it twice as we were looking back at our vehicle as we keyed in the number to ensure we got it right.

I was shocked, a fortnight after our return from this holiday, to receive a PCN from Parking Eye for a total stay of 4 hours 15 minutes, and demanding a payment of £100! This letter did not mention that we had paid for a total stay of 4 hours, but I imagine that I was being charged for an overstay of 15 minutes.

In my letter to Parking Eye challenging this fee, I asked them to check all inputted VRNs for 17th June to ensure that this wasn’t a misunderstanding caused by the mistyping of a digit.

In their reply of 13th July rejecting this challenge, Parking Eye makes no mention of having made this check. Indeed, the letter seems to be an automated standard letter as it was also unsigned.

I appeal this decision on the following grounds:

1. ParkingEye Ltd has no contractual authority
2. The charge is punitive and not a genuine pre-estimate of loss
3. No reasonable grace period
4.. Penalty Charge is unlawful
5.. Keeper Liability Requirements and the Protection of Freedom Act
6.. ANPR Accuracy and Compliance
7.. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
8.. Unfair terms of contract
9.. Without a contract
10. Non BPA compliant signage


1. ParkingEye Ltd has no contractual authority

In the notices they have sent me ParkingEye Ltd have shown no evidence that they have any proprietary interest in Tower Road car park. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner instead, who I understand to be Newquay Golf Club.
I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park.
I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name.
I clarify that this should be an actual copy and not just a document that claims such a contract/agreement exists.

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

Judging by the wording of the Parking Charge Notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. ParkingEye Ltd claim that my car was in the car park for 4 hours 15 minutes. I forget what the actual tariff was, but believe it was approximately £4-00 for the time we stayed. ParkingEye are now asking for a charge of £100 for this presumed overstay. This alone is far more than any possible cost to the landowner for the time my car was parked there. According to the Unfair Terms in Consumer Contract Regulations 1999, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract. Indeed, it is a penalty.

I require POPLA to ask ParkingEye for a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this presumed ‘overstay, bearing in mind, as I said in the ‘Background’ that there were plenty of vacancies in this car park, both at the time of arrival and even more so at the time of departure.

This charge of £100 for a presumed (but unstated) overstay of 15 minutes in a paid-for time of 4 hours (i.e. 6.25% of the total time) is clearly unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal.
If the operator does not cancel this charge and/or if there are no other grounds upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.


3. No reasonable grace period.
The BPA Code of Practice stipulates that ‘You should allow the driver a reasonable grace period in which to decide whether 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.
In my case I appear to be being charged a penalty for a presumed overstay of 15 minutes in a paid-for time of 4 hours. This 15 minutes was taken up by two sets of customers in front of me, one of whom was foreign, reading how to use the meters (one of the two of which was not working) and in obtaining change with which to feed the meter.
There was inadequate signage, quite possibly no signage, near the meter explaining that APNR was in use, and being used to calculate the car park fee.
I require ParkingEye to provide photographic evidence that such signage is prominently displayed at the meters, so that an unwitting visitor would be able to read it whilst waiting in a queue.
The most prominent signage at these meters was a reassuring one saying, ‘Don’t worry I you stay longer than intended. You can pay the extra when you return’

4. Unlawful Penalty Charge

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100.. To justify the charge of £100, I require ParkingEye to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question.


5. Keeper Liability Requirements and the Protection of Freedom Act

As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the Parking Charge Notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver).
In their Parking Charge Notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to name the driver and does not actually state the choice to pay it myself.
I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle entering and leaving the car park) is not actually valid or sufficient on its own as a form of evidence.
ParkingEye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do

6. ANPR Accuracy and Compliance

I require ParkingEye Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.
This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.
It is vital that ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013.
That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which 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, 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.
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.''

At this location, there appear to be merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used.
This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.
Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

7. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver I would like to point out that the signs at Tower Road car park are inadequate to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park.
Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.
It is not appropriate for a car park such as Tower Road to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into.
I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.
I would specifically like them to describe how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened.
For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them – all in the space of the presumed 15 minute ‘overstay’. None of this ever actually happened.

I request therefore that ParkingEye provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

8. Unfair terms of contract

Although there was no contract between Parking Eye and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

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.

5. (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.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

9. Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award ParkingEye Ltd could seek would be damages. As there was no damage to the car park there was no loss to them at all and therefore should be no charge.

10. Non BPA compliant signage

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.

In their original PCN, ParkingEye asserted that “… signage clearly displayed at entrance states that this is private land, the car park is managed by ParkingEye, that maximum free stay is 0 hours 0 minutes…’. We never saw this signage and contend that it was probably too high and/or too small to be easily seen, let alone be read or understood before deciding to drive in..
I therefore request that ParkingEye provide photographic evidence to show where this notice is, and its visibility to drivers as they enter the car park.

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.

I respectfully request that this Parking Charge Notice appeal be allowed and await your decision.

Umkomaas

I've skim read it. All far too long for me to go through in detail.

One or two things stick out.

Your preamble mitigating statement is wholly unnecessary - you need to be careful that POPLA don't even get to the end of that before deciding this is an appeal based on mitigation and reject before they go beyond. They don't need 'the story', don't want 'the story', will pay no heed to 'the story'. Don't waste their time.

Move the GPEOL paragraph to the final appeal point.

Opening with 'No Contractual Authority' is good strategic positioning.

I glanced that you were insistent that PE should have issued a windscreen ticket - why? They use ANPR cameras to monitor car park entry and exit, so there is no requirement from any 'overseeing' organisation (BPA or DVLA) for windscreen tickets to be issued as well.

You've got Beavis correctly covered (unlike most first drafts we deal with).

See what others say over the next couple of days (unless your POPLA deadline is critical).

Guys_Dad

Umkomaas wrote: »

I've skim read it. All far too long for me to go through in detail.

I fear that your reaction may very well be the same as adjudicators as well.

I imagine an adjudicator receiving the "War and Peace" from private eye and saying "OK I have read this before so I am nt wasting my time with that".

I then imagine them getting a forum based diatribe running to 2 or 3 pages and saying "My lucky day! Not! I have had this lots as well" and the danger that arises is that anything unique or significant or important in an appeal will be overlooked.

Much of what is in the standard extended appeal is that it contains things that may have been relevant when POPLA was in its infancy and adjudicators were feeling their feet, but 75% is, in my opinion, not needed and has not actually been quoted by an adjudicator as a winning argument.

A much shorter targeted appeal would be my favourite.

Parkrage

Thanks Umkomaas,
I glanced that you were insistent that PE should have issued a windscreen ticket - why?
I culled that from a model POPLA Appeal on another site. I guess it's to establish the difference between being 'parked' and merely driving in an out. Obviously I can remove this depending on the weight of opinion. (In their letter PE said, "... the maximum free stay is 0 hours, 0 minutes")

See what others say over the next couple of days (unless your POPLA deadline is critical).

No, it's not critical; still got about 3 weeks :-)

Parkrage

That seems to fly in the face of other advice given on this forum which says to find as many faults as possible. My POPLA Appeal letter doesn't seem to be any longer than others I've seen on this site, which is why I've used it. :-/ (Had I not come to this site and seen what others were writing, any appeal drafted solely by myself wo9uld certainly have been much shorter - and probably missed some points that POPLA could've picked up on)

Parkrage

I suppose I could say sth like, 'I have identified 10 possible grounds for appeal', then put in the bullet points I have used. Then say,

I have selected 3 of them for more detail... :-/

Parkrage

Just had a thought - am I confusing an initial POPLA Appeal with the detail I would send to refute the 30-50 pages that PE will send POPLA in rebuttal of my Appeal,; this being why my Appeal above is so long.

I should limit it so say 3 of the bullet points, then use the detail to rebut PEs arguments when they send them :-/

Tommy1080

Hi, I've replied to your DM and sent you the details of my appeal... hopefully you will be able to pick some bits out that help? salmosalaris (user on the forum) kindly helped me out with the appeal!