ParkingEye fine Tower Road Newquay

PTJBS05

oh dear after reading your experiences Parkrage I am now a little nervous about the outcome of my appeal. I am not very good at retaining or understanding pages and pages of documentation and as a working mummy with very young children I wonder if I could even find the time to defend myself.


Sounds like your struggling with a time issue too.


I suppose everyone has the same problem as it is a busy world now a days. My intelligence will probably let me down at some stage too.


Well, lets see what Parkingeye come back with on my appeal because as yet I haven't heard a thing back to my online appeal.

Quentin

You really need to be in the mind-set that your appeal will be rejected as that is the norm.


Use the time to read further in the newbies FAQ as to what to do should they reject. (Writing your defence is a long way in the future, should it come to that)

Coupon-mad

You could copy a POPLA appeal from another PE thread, easily. Just search this forum for 'ParkingEye POPLA'.

PTJBS05

So I get a reply today from Parking eye with regards to my online appeal. As expected it is rejected and they are also now saying that upon further investigation my there was also insufficient time paid, which I find hard to believe.


So now I am presuming I just do my best with an online POPLA appeal keeping mitigation to a minimum and going on the grounds of GPEOL which I understand to mean not a comparison of real costs ?? if I have been reading the newbies correctly.


I don't have the original ticket so am unable to attach supporting evidence to POPLA hopefully that wont hinder my case as Parking eye are admitting we had a ticket now by saying their investigations show in sufficient time was paid for.


Shall I just give the online appeal for POPLA a go without further advice ? I have read the successful appealants page and get the general gist..........I think


Also interestingly I receive another letter from Peye catergorised as a REJECTION OF INVALID INVOICE, no idea what this is ?????haven't raised an invoice to them ????? strange

Herzlos

PTJBS05 wrote: »

Also interestingly I receive another letter from Peye catergorised as a REJECTION OF INVALID INVOICE, no idea what this is ?????haven't raised an invoice to them ????? strange

Did you just copy the standard template? It ends with a clause about PE agreeing to pay your rates for communications, which they've rejected.

Appeal to POPLA using all of the points; the big one at the moment is insufficient grounds - do they even have any authority to be issuing invoices? Then there's no GPEOL and the insufficient signage.

Quentin

PTJBS05 wrote: »

.....Shall I just give the online appeal for POPLA a go without further advice ?.....

You did get further advice on what to do when your initial appeal is rejected (from the "top"!!)


See # 34

PTJBS05

ok sorry I thought that was directed at the other PE victim above, I will do that

PTJBS05

The following draft is one I have chosen after wading through lots of appeals to most match my case. After returning from holiday there was a notice to the keeper, a ticket was purchased for £3.50 and we do not believe there was an overstay,


We haven't kept the ticket.


Is this too much of a copy ? or do I need to change it more? does it matter that I have barely altered it ?


I didn't want to alter it because I might stuff it up or hinder the appeal by wording things incorrectly. Literacy is not a strong point for me.


I noticed that the Beavis case information was out of date when it said due to be heard in Feb 2015, so I replaced this with another suggested paste, is this a good idea ?


Could I attach the below to the online appeal process with Popla ?

PTJBS05

Re: ParkingEye PCN, reference code
POPLA Code:


I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) The signage was not readable so there was no valid contract formed.
5) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. Having received the Notice in the post I had very little information (see point #2) so went and checked the signage and it seems that up to 2 hours would have cost £3.50 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £3.50 at the most. Parking Eye have not told me these details, despite it being a prerequisite of Schedule 4 (see point #2).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, The charge is 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 is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
POPLA Assessor Chris Adamson has stated in June 2014 that:

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.

4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

5) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit
ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that ParkingEye 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.

This concludes my POPLA appeal.

Yours faithfully,



xxxxxxxxxx {registered keeper's name...}

Coupon-mad

Just to get this bee in your bonnet about 'private land' out of your head - it is so unimportant. ALL non Local Authority land is private land, which includes car parks like this where the public are invited to park, also all Supermarket car parks & retail sites are private land - so what? Forget that, of course it was a private car park - you are allowed to use them if the public can park there! Just means it wasn't a Council one.

PE have unfairly tried to charge the driver for the time before and after the P&D ticket was purchased, using cameras to time you in/out. They'll be alleging the car was there about 20 mins more than the 2 hours, all told, but that's not 'parking' time.

PTJBS05 wrote: »

So I get a reply today from Parking eye with regards to my online appeal. As expected it is rejected and they are also now saying that upon further investigation my there was also insufficient time paid, which I find hard to believe.

I have a case the same, Tower Rd too. I've just written the POPLA appeal so it's fresh in my mind and I've argued more strongly that the NTK is not compliant, for example re this requirement:

''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose...and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'


The NTK specifically fails on all counts.

It even misdescribes the circumstances, stating that the 'free stay' allowed is 0 hours and 0 minutes and that the contravention is for 'staying longer than authorised' or 'without authorisation'. Well it's a P&D car park, not a permit one, so there is no possibility of 'authorisation'. Therefore the NTK is non-compliant and it is too late in the rejection letter to suddenly tell a keeper that insufficient time was paid for, yet still omit the essential information that should have been in the NTK - i.e. how much of a tariff allegedly remained unpaid.

4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles, away from the Pay & Display machine,

Change the above because it's not true, see post #81 here:

http://forums.moneysavingexpert.com/showthread.php?t=4908490&page=3

Get rid of the generic waffle about double visits if this wasn't one, so lose this and maybe a bit more:

[STRIKE]As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that ParkingEye 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. [/STRIKE]

Instead, re the signage, don't say it was unreadable, say it was ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

- 'enter your full VRN correctl'y (it says 'you must')
- 'park within bays'
- 'Blue Badge holders - tariffs apply'

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the P&D machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign.

Show POPLA a picture of the sign - copy those images from the thread I just linked.

And add:

- a Paragraph pointing out that it is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.

In addition, having two timings running makes you conclude that P&D machines are incompatible with ANPR camera systems and the entire scenario is obviously unfair under the UTCCRs (others can add more here - standard UTCCRs quotes - as I'm on my lunch break!!)

- add a paragraph about the Aziz test and the fact the driver would never have agreed to this charge, had the 'contract' been negotiated in advance. (others can add more here as I'm on my lunch break!!)

- add a paragraph about Beavis at the end (see the NEWBIES thread about POPLA).

- and somewhere suitable, link/quote Fistral Dude's court case* and supply the Judge's transcript (read the Judge's words, it's available from the Parking Prankster's website of case law) which supports the view that driving around and waiting and queueing - and by definition, other exempt activity like loading/unloading, getting kids & clobber in, and also queuing to pay at the machine - is not parking time. His case wasn't at Tower Rd but it makes no odds, you can cite it. 'Liseylou's court case was at Tower Rd though - the one in the linked MSE thread - and she also won her case and 'her' Judge agreed that driving around in Summer at a beach car park and other exempt activity is not parking. You have her court claim number and surname at the end of the thread where she shows the ParkingEye letter sending her costs.







* 17/3/2014 Altrincham, 3JD08399 PE v Ms X. Fistral Beach.
http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html
DJ: driving round not parking.