Tower Road, Newquay POPLA Appeal

PCNVictim

Greetings all,

I recently visited Newquay at the end of July 2015 and parked in the notorious Tower Road car park managed by Parking Eye.

The summary of my case is as follows:

1. Arrival time (according to Parking Eye camera): 29 July 2015 @14:03
2. Payment machine did not work, so I had to download Paybyphone app and pay..I have an invoice that shows payment was made on: 29 July 2015 @14:08
3. Paid for 2 hours and the parking expired on: 29 July 2015 @16:08
4. Parking Eye recorded my exit time on: 29 July 2015 @ 16:15
5. I was on a hire car

I have appealed to Parking Eye in mid-August giving the invoice and asking them to consider the fact that it is a peak summer period, busy place, etc and the fact that the snapshots have not considered the above circumstances. However, this was flatly rejected by PE and they maintained that I have overstayed in their letter to me on 14 Sep 2015.

I intend to appeal to POPLA and after doing some readings on similar recent cases, I have drafted the following appeal letter (credits to Salmosalaris and Parkrage).

Would anyone be kind enough to offer their advice on the following:
1. Is the overall content OK?
2. Should I still mention the Beavis case and outlines the differences?
3. Parkrage mentioned about the signage being non-BPA compliant and the fact that 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…’ which I believed I did not see as well --> Is this worth mentioning?

Thank you in advance for your kind suggestions and help.

Dear Sir/Madam,

I am writing to request POPLA to consider my appeal against PCN XXX on the following points:

1. I was the registered driver of vehicle XXX and I can confirm that the driver has fully paid for the period of parking in accordance with the signage. As part of the PCN, Parking Eye has produced two images of the vehicle entering and leaving the car park with supposedly accurate timings. I, firstly, demand that Parking Eye produce an independent verification that these timings are accurate and can be relied upon as evidence and secondly, the timings are irrelevant for the purposes of measuring the parking stay as they are taken at arbitrary positions at the entrance and exit of the supposed car park which the driver would be unaware. The supposed length of stay has taken no account of reading the terms and conditions, making payment, finding a parking bay, parking the car and then leaving the bay making it available for another vehicle and finally exiting - all of this to be done in a busy car park at the peak of summer in the relevant area. I demand Parking Eye to prove 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 the case. I would also like to point out that the payment machine did not work and I have had to pay using the Paybyphone system which adds to the waiting time before a payment is made due to the need to download and sign up for the application.

2. Parking Eye has claimed 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 issue such a claim.

3. If Parking Eye does not have proprietary interest in the land, I demand Parking Eye to produce an unredacted copy of the contract with the landowner that authorises them to offer parking contracts 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 Parking Eye is a simple financial consumer contract where an offer of parking for a set sum was made in return for a payment for the set sum. Therefore, the sum of £100 being demanded is deemed to be nothing more than a penalty clause stipulated 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 Parking Eye believes inadequate payment was made, its demand should be for any unpaid tariff as that would be the only loss. The vehicle parked for an authorised stay that was fully paid for and so the £100 is clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believes their charge is a genuine pre estimate of their loss I demand they produce a detailed and itemised breakdown of how this was calculated. I would refer the POPLA adjudicator to the obiter and persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye vs 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 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 Parking Eye and the motorist. This is in stark contrast to the present case where there is an economic transaction between Parking Eye 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 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 Parking Eye vs 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.. Parking Eye 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 Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered driver asked to pay the purportedly unpaid tariff.
b. Parking Eye 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 Parking Eye has failed to comply with the requirements of the Act and consequently cannot rely on its provisions

The appeal should be allowed and the Parking Charge Notice cancelled.

Redx

why are you appealing as driver ?

did you "out" the driver to PE ?

do you realise that POPLA dont consider mitigation and therefore up to now the "paid for a ticket" argument never worked

the NEW OS system may take other factors into account (see parking pranksters blogs) but you need to tailor any appeal to the new OS service and not to the old London Councils service (popla has changed companies)

always mention Beavis and the fact the Supreme Court ruling is expected in oct or nov 2015

always mention the signage, making them prove they have complied with the BPA CoP

always mention no locus standii, no contract , NTK flaws , not a gpeol etc too

PCNVictim

Hi RedX,

I've amended the driver to registered keeper.

Thank you for your comments, I'll revise the draft to include the points you have mentioned including the signage and gpeol.

DollyDee_2

Appeal as "Keeper" eg. I was keeper of the vehicle on xx.xx.xxxx (date).

The hire company are the registered keeper.

The_Deep

This may interest you


http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html

Coupon-mad

The 'Aziz test' must be mentioned (see the end of the Supreme Court case which can still be watched online, this is covered by the Judges). Here's a summary: https://en.wikipedia.org/wiki/Aziz_v_Caixa_d%27Estalvis_de_Catalunya

I quote those Judges in POPLA appeals now - specifically using the Aziz postulate they brought up with PE's QC at the end of his hour - and make it clear the driver would never, ever have agreed to pay ScumbagsRUs £100 (or whatever amount) for the time taken to drive in and out, had both parties negotiated the contract in advance with a blank sheet of paper.

You could add that the average consumer in the same position, purchasing a P&D ticket by phone, would have taken the same view as you and no reasonable man would think that they are in fact being timed by a completely different clock, in a different position which secretly and spuriously calculates the entire stay, when in fact the car did not actually PARK beyond paid-for time. It is perfectly reasonable to expect not to be charged for time queueing to park and later to leave & drive out onto the road - or (in your case) the minutes wasted on arrival which were the fault of the operator.

Clearly their timing is unreasonable and contrary to good faith which renders the contract term as unfair under the UTCCRs in its own right but also fails the 'Aziz test'. Point out to the Assessor, that the proof that this charge would never have been agreed is borne out by the fact that you have appealed as far as POPLA which 99% of motorists do not. And the Aziz decision is from the ECJ, which is binding on UK Courts.

You can also say PE have 'failed to justify the rationale behind the charge' (which were also words used by one of the Judges in the Supreme Court hearing at the end). Work that phrase into the argument that the charge was not based upon a GPEOL and as it is for alleged breach, it has to be based on a GPEOL.

I didn't see the wording from the Newbies thread in your POPLA appeal, the bit in blue about asking for a stay for Beavis if the case can't be decided yet - it's a safety net of sorts. Check the Newbies thread about POPLA stage and add that at the end as a catch-all.

Another little bullet I now include in POPLA appeals, where a person is alleged to have overstayed by just minutes such as the 12 minutes in your case, is simply to have a paragraph saying you understand the grace period is in fact 15 minutes at this site! (you have no idea of course, but state it anyway). State that you require proof to the contrary which will mean a copy of the contract itself, not a witness statement. The point being if PE don't rebut it then you could in theory win on that point alone. Grace periods don't mean much in themselves but if you allege the agreed grace period here is a little longer than the time you are said to have overstayed, the onus squarely falls on the PPC to disprove it, or they lose that argument.

Talking of witness statements, if they include one in the evidence, point out by email to POPLA in a rebuttal that it could relate to any PCN at that site on that day, because it includes no identifier for your case or your car whatsoever and it is believed PE issue an average of 25 PCNs per day at an average sized site... As such, you contend the signatory has not confirmed that PE were authorised to issue this level of charge, for this contravention, to your car and you believe that the truth is, the signatory had none of the information before them and has signed a template statement with merely a date & location (but nothing else specific to you) added later. Since the witness statement does not mention anything about the rules, contraventions, enforcement hours/days, exemptions, grace periods nor even the level of the charge, you allege it does not discharge the requirement for PE to show they have landowner authority for THIS charge in your case. And if it's signed by a managing agent, object to that and say the agent is not the landowner.

I would also like to point out that the payment machine did not work and I have had to pay using the Paybyphone system

Sentences like that give away who was driving but I'm assuming you already have, in your first appeal. If you wrote like that in the first appeal, be consistent now! You will have no option but to be open and call yourself the driver at POPLA stage. Decide whether you did give away who was driving at round one and stick with that position so POPLA don't think you are being unreasonable in any way. If you didn't talk about what happened/who parked/who paid by phone, first time around, then call yourself the day to day keeper and 'lessee/hirer'.

Oh, one final thing - you say it was a company car and you were sent your own PCN I assume, after the lease/company named you? Well compare the Notice you were sent, to the rules for a Notice to Hirer and what MUST be enclosed with that NTH. Look at Schedule 4 - PE do not include anything that is listed there, so quote the relevant part of Schedule 4 about Hire Notices and point the MULTIPLE omissions out to the Assessor.

ampersand

'I quote those Judges in POPLA appeals now - specifically using the Aziz postulate they brought up with PE's QC at the end of his hour - and make it clear the driver would never, ever have agreed to pay ScumbagsRUs £100 (or whatever amount) for the time taken to drive in and out, had both parties negotiated the contract in advance with a blank sheet of paper'
#
Have used this before and for others. It's 'reasonable behaviour'. No wonder pp scumpanies and their paid lips have trouble with the concept.

PCNVictim

Thanks Coupon-Mad!!!

I can't remember if I have actually given away myself during the PE appeal....is there a risk if I'm now appealing as a driver rather than the keeper?

Ivor_Pecheque

Not sure if CS018 case may be of help... http://www.parking-prankster.com/case-law.html