Tower Road, Newquay

Redx

in another thread you mentioned that your popla appeal was considered too long and not all relevant, this is true

too much waffle in the summary, a popla appeal is based on legal arguments , the summary is largely irrelevant , not required and lengthens the appeal considerably. they are not interested in your "story" , the weather, or shoe size, or mitigation ; just the legal points

not a gpeol should be the last point, because of the Beavis case yesterday ; the result of which wont be known until maybe october or november , it should be immediately followed by the appeal paragraph in blue from the newbies sticky thread

PE dont issue windscreen tickets and there is no requirement for them to do so, they use ANPR cameras so the part about windscreen tickets is totally irrelevant and not required, whereas anpr standards and calibration etc are required

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

all incorrect, anpr is an accepted method of entry and exit for car parking, no driver notice has to be issued either, POFA allows for both scenarios , so where no driver notice is issued (a windscreen ticket) they have 14 days to issue the RK with an NTK under POFA 2012 , if they are trying to invoke keeper liability (which PE are)

have a look at other recent PE popla appeals posted on here , there will be loads due to PE being a big company who rely on anpr to check timings of in and out times on sites, not parking management (they dont manage parking, just time on site)

as for trespass, as was pointed out in the arguments in recent Beavis case, only the landowner can sue for trespass, PE are not the landowner so cannot sue for trespass as they have no locus standii

it was also pointed out that time on site does not necessarily constitute parking , so the judges pointed out that you cannot drive around a car park for 2 hours, then park for 2 hours, on a 2 hour restricted car park

Ivor_Pecheque

Hi Parkrage, thanks for the PM, unfortunately am in transit at the mo, have got some photos of Tower Road from a couple of years back, and happy to post them. Maybe worth joining the "Newer Newquay" facebook thread. There is so much hatred towards SMART/Parking Eye in the town, that people will set their alarm, cycle down to the aforementioned sights and snap snap away. I used some of their photos in my defence (and won) Sorry I can't help any further at this stage, but geography prevents it :-)

Ivor_Pecheque

These images are about 2 years old, anecdotaly the signs don't seem to have changed

Parkrage

Are those all Tower Road, Pecheque? Reason I ask is that, like Tommy1080 in another thread, I didn't keep my parking tickets, so can't recall how much I actually paid. In fact, as his case is virtually identical to mine, and he won at POPLA, I'm probably gonna use his Appeal virtually verbatim. I like the touch where he got his spouse to verify he'd actually paid for a ticket. When I wrote my challenge to PE they didn't acknowledge that I'd actually bought two tickets covering 4 hours. (Their 'speculative invoice' is for 4 hours 15', so my 'overstay' is 6.25 % of the total paid-for time).

I may be able to finish off my POPLA Appeal this weekend, using the advices I've been given above :-)

Ivor_Pecheque

The signs are from Tower Road, but there are at least 4 car parks on Tower Road, 3 of which are PE

Parkrage

"The signs are from Tower Road, but there are at least 4 car parks on Tower Road, 3 of which are PE"

Yes, I realise that. But the PCN I rec'd from PE just said 'Tower Road'. I thought they might use slightly different names to distinguish 'em.

Ivor_Pecheque

The golf club is PE, Holy trinity church is PE, and the sh*tty little cafe is PE.

If you look at my last photo it does say "Tower Road Car Park" so I'm assuming it is this one.

Parkrage

The verbiage as reduced from3557 words to 2636.

I essentially used Tommy1080s recently successful Appeal as we encountered the same issues: Bought a ticket, overstayed, mislaid ticket. Tomy rec'd considerable help from Salosalaris in drafting his Appeal and, apart from minor changes of vocab and 'turn of phrase', all I've done is added a bit about non-compliant signage.

From my original, I've missed out everything about ANPR, which was quite lengthy.

n.b. Sadly, POPLA gave no indication as to why they'd upheld Tommy1080s Appeal.

I've kept the suggested Supreme Court para in blue so peeps can see I've included it, although it doesn't seem relevant in my case.

Looking forward to your comments...

POPLA Appeal

POPLA Ref: (redacted)

Vehicle Reg. (redacted)

Operator Name: Parking Eye

Dear POPLA Adjudicator,

I wish POPLA to consider my appeal against PCN (redacted)

1. No breach of contract
I am the registered keeper of the vehicle detailed above. There was no breach of contract. I can confirm that the driver fully paid for the period of parking in accordance with the signage. My husband has written a witness statement (attached) in support of this fact.
I can only assume that either the machinery is faulty or possibly an incorrect VRN was entered, but in either case there was no loss caused to ParkingEye, let alone for them to justify a claim for £100!

2. ParkingEye has no contractual authority
It is believed that ParkingEye claim to be the leaseholder of Tower Road 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.

If they do not have proprietary interest in the land, then I demand that they produce an up-to-date, 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.

3. Protection of Freedoms Act
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 has 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 has failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

4. 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…’.

The driver never saw this signage and contends 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 full photographic evidence to show where this notice is, and its visibility to drivers as they enter the car park.

Furthermore, 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.



5 Not a genuine pre-estimate of loss

If ParkingEye believe 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.

According to ParkingEye’s ANPR system, the vehicle parked for 4hrs and 15 minutes, a stay that would be authorised for payment of £7-00. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable.

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 £7-00. Any costs in contacting the registered keeper could easily have been avoided by a simple modification to their system, allowing payment on exit and advising a motorist of an incorrectly entered VRN. This is all simple to achieve with their present system with some easily achieved modifications.

I wish to 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 ParkingEye 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 allow for an adequate 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 my situation, where there is an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made - provided payment was made.

Tower Road 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 ‘no payment’ is the very essence of an unlawful penalty.

Analysis of the excerpt from the judgment below clearly demonstrates that the Court of Appeal would have considered the charge in this case to be an unenforceable penalty.

My case can be clearly distinguished from ParkingEye v Beavis the arguments and judgment of which are irrelevant in my situation.

43. It is clear that the purpose of the £85 parking charge is to deter those who use the car park from overstaying beyond the free permitted two hours.

44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other. Sometimes such measurement is difficult because of inherent uncertainties, and in those an agreed liquidated damages provision may be upheld for those reasons. But, however difficult it may be to measure, it is clear that there are economic and commercial effects on the parties.

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land. The operator affords the driver a free facility. That facility is, of course, of economic value to the driver, as well as of convenience, in assisting the driver to visit the shops in the shopping centre which the car park serves. It is thus useful to Judgment Approved by the court for handing down. ParkingEye -v- Beavis the driver, being close to the shops, and free. It is also useful to the shopkeepers, in encouraging visitors, and in particular in encouraging a turnover of visitors because of the two hour limit. A car owner cannot simply come to the car park and park there all day. To do that would be to clog up the facility and to prevent those arriving later from using the park for its intended purpose.

46. The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first two hours being free.

47. It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”


Part 2:
49. In a case such as the present, however, for the law to prohibit a provision such as the overstaying charge, on the basis that it bears no relationship to the loss (if any) suffered by the car park operator would fail to take account of the nature of the contract, with its gratuitous but valuable benefit of two hours’ free parking, and of the entirely legitimate reason for limiting that facility to a two hour period.

50. It is an oddity of the facts that the respondent appears not to make any money out of the contract unless drivers do overstay, so enabling Mr Hossain to argue that, so far from suffering loss by a driver overstaying, the respondent only stands to gain by that breach of contract (though of course if the appellant is right and the parking charge is unenforceable, the operator does not stand to gain anything under any circumstances). The law would allow damages for trespass against the overstayer without regard to what the operator would have done but for the trespass: see for example Swordheath Properties v Tabet [1979] 1 WLR 285. Thus, the actual effect of the trespass on the car park operator’s position is not relevant in any event. However, unless the defendant’s occupation has been of particular value to him, the compensation would Judgment Approved by the court for handing down. ParkingEye -v- Beavis be limited to the market value of the occupation during the period of trespass. That would provide no disincentive against overstaying.

51. This is not to say that the rules about penalties could have no application to such a case. If the charge were grossly disproportionate, it could fall foul of this principle. It would be extravagant and unconscionable. But, as Moore-Bick LJ says, that is not this case, where the charge is £85 for any period of overstaying, long or short, and is reducible to £50 on prompt payment. The judge held that the charge was not improper in its purpose or manifestly excessive in amount, and this was not challenged on appeal. I agree with Moore-Bick LJ that an intention to deter, by means of a term or terms which seek to impose manifestly excessive obligations in a commercial case, may well show that the provision is extravagant and unconscionable. In a case of the present type, which is not a commercial contract, it seems to me that an intention to deter is not sufficient in itself to invalidate the term. The term must in itself amount to something which is extravagant and unconscionable if it is to be found invalid under the rules about contractual penalties.

6. Unfair under UTCCR
From the foregoing, 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 the purported loss which would only be a small parking tariff of £7-00 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.
The car parking arrangements would be much more open and transparent if, either the motorist paid on exit, or there was a facility on exit to make good any inadvertent underpayment for an otherwise allowable stay.

The failure of ParkingEye to introduce such a system which also recognised and to advise the motorist of having inadvertently inputted an incorrect VRN could be argued to show a lack of good faith as their motives for not doing so. The motive may well be that it would reduce their ability to issue penalties and thus reduce their profits!

There would be no cost to do this as the machinery already in place could easily be adjusted to facilitate it.




Summary

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 may 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.


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


Yours sincerely,

Umkomaas

1. No breach of contract
I am the registered keeper of the vehicle detailed above. There was no breach of contract. I can confirm that the driver fully paid for the period of parking in accordance with the signage. My husband has written a witness statement (attached) in support of this fact.
I can only assume that either the machinery is faulty or possibly an incorrect VRN was entered, but in either case there was no loss caused to ParkingEye, let alone for them to justify a claim for £100!

Driver possibly identified??

Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. Which is it?

I would embolden this to emphasise the point.

According to ParkingEye’s ANPR system, the vehicle parked for 4hrs and 15 minutes, a stay that would be authorised for payment of £7-00. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable.

Do a quick check of what council penalty charges are for that area, and compare with that of PE. Then hit them with the 'extravagant and unconscionable' bit.

I wish to 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 ParkingEye v Barry Beavis.

Unless you've 'got your head around all of this", I'd be careful about pushing this paragraph (and the ensuing related ones). Things have moved on since then, so be careful what you are quoting.

I've not gone through all of your emboldened paragraphs. On a skim read they seem to predate last week's Beavis -v- PE Supreme Court case. If you fully understand what you are writing and it sits squarely with what happened last week, then ok, but if it's just a copy and paste (and hope for the best), you might need to rethink it.

It's good you've got it down from 3.5 thousand words. In my view there's no need for that length of appeal, unless you understand every word and it applies absolutely to your specific case.

HTH.

Parkrage

"Do a quick check of what council penalty charges are for that area, and compare with that of PE. Then hit them with the 'extravagant and unconscionable' bit"

Just rang Cornwall Parking Services and they said their charges are £70 or £50 with a 50% reduction if paid within 14 days