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Parking eye tower road Newquay

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  • eadxw23
    eadxw23 Posts: 11 Forumite
    Hi all,

    Ok so I have read the other thread and adjusted a similar suggested response to fit my case. I have fortunately kept the original ticket which covered me from 12.00 -14.00 but the PCN shows the car entering at 11.56 and leaving at 14.07. I've also read the POPLA appeals new website details which suggest you keep the appeal short and don't copy and paste from online help sources which concerned me. here is my first draft and I really appreciate any help and suggestions that will help me over turn this.


    Re: ParkingEye PCN, reference code
    POPLA Code:
    Background from the appellant who is the registered keeper (the driver was not evidenced):

    I should start this appeal by explaining the impact of this fine. I received this during work hours and this affected more than I expected. I had been home from my Newquay holiday for a couple of week and received the £100 ‘parking charge notice’. Just for POPLA this is how this Parking Charge Notice affected me. First I was I so upset as id saved for this budget caravan holiday as I had only recently found out I was expecting my first child and money was going to be very tight with the baby’s arrival. I have lost sleep over worrying about paying this and the threat of going to court.

    I have spent time researching ParkingEye as I had never come across them before and found this appears to be an all-too-common, misleading trap set by ParkingEye this Summer, as widely reported online by victims and I now feel strong enough to exercise my right to appeal this to POPLA.

    I am the registered keeper but I was an occupant of the car so can give you an honest account. The driver will not be named because I wish to use the protection offered to keepers in the POFA 2012, as one of my appeal points.

    We drove to the beach on our first day in Cornwall after travelling that morning from Essex while our caravan was being cleaned for us to check in. As we had never been to Cornwall before Following SAT NAV we got to fistral beach and followed the large signs for Fistral beach parking. The driver drove into what was signed as a ‘pay and display’ car park. The driver queued at the ticket machine and paid for up to 2 hours parking, got the tickets and after time spent on Fistral beach we returned to the car within the 2 hours, removed our extra layers, knocked the sand off our shoes and reset the SAT NAV and left.

    How a £100 ‘fine’ can arise from that, without being unlawful, is beyond us.

    I submit the points below to show that I am not liable for the parking charge:

    1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
    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) No genuine pre-estimate of loss.

    1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

    The sign 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 correctly’ (it says 'you must' and the driver complied with that term).
    - 'park within bays' (the driver complied with that term).
    - 'Blue Badge holders - tariffs apply' (OK, but not relevant and not an obligation upon us).

    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. The only contract agreed was to pay the tariff and return before expiry.

    It seems from my research of this issue that, unbeknown to the driver, the car was being timed secretly by cameras from a significantly earlier point than when the driver bought the ticket. So although we were back in time, ParkingEye had also accounted for some 11 minutes or so, from when we entered the carpark until we left ! They have counted in their alleged ‘parking time’ the minutes spent driving round, looking for a space, then parking up, getting my pregnant girlfriend out the car, adding extra layers, removing valuable items from car display and then walking to the pay and display machine, queuing to pay, looking for the right change, walking back to the car for the REG as the had had just been changed and getting a ticket. Also adding the time as we returned to the car , and got ready to leave the car park at the end of our stay. These minutes were perfectly reasonable activity for anyone arriving at a beach car park for the first time, were not part of any ‘period of parking’ and were before we even had an opportunity to read any sign and pay & display!

    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.

    This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:

    link

    ‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
    REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

    (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
    (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’

    Unfair Contract Terms Act 1977:
    ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

    I would also mention the case in 2014 at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach. It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions.

    In our case, the driver relied upon the expiry time on the Pay and Display ticket, which fortunately the driver kept and a scanned copy is attached to this appeal. We returned to the car in time so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.

    Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith.

    In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.

    The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a ParkingEye run car park and never will again.

    A Pay & Display machine system is incompatible with ANPR enforcement; an operator cannot run two systems with two timings and favour the one which operates disadvantageously to consumers.

    Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.

    This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.


    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...'
    NTK is not compliant, for example re this requirement:

    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.
    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) No genuine pre-estimate of loss
    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’’

    link

    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.

    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.''


    This concludes my POPLA appeal.

    Yours faithfully,



    xxxxxxxxxx {registered keeper's name...}
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    edited 31 October 2015 at 10:48AM
    you have called it a "fine" several times, its not a "fine" , its a parking charge notice, or invoice, use those terms as they are correct. you have made this word up because it wont be on any paperwork as no private company can "fine" you

    the Beavis case decision is due on 4th November, so you will not be asking for an adjournment pending the outcome as the outcome will be known in 5 days time, possibly before you submit this appeal

    therefore check your popla expiry date, if its after 5th Nov then wait and alter that paragraph accordingly, if its before 04 Nov then change that paragraph so that they check the outcome and use it to determine your case if the previous appeal points fail

    so you wont be wanting an adjournment pending the decision because when popla read this case the decision will already be known

    also add a section stating the BPA CoP details 10 minutes grace period so as the time the car was actually parked was paid for , any extra minutes are a part of the entering the car park, finding a space to park, reading the signage , buying a ticket and exiting the car park afterwards. therefore time on site does not equate to being "parked"

    have the signage as a separate section too, detailing that it fails the BPA CoP, etc, why it fails, making them prove the signage passes the BPA CoP, they are the claimant, so they have to prove the signage issue if you bring it into question

    so a separate section on the "grace period"

    and a separate section about signage

    in my opinion, a lot of that "background" is not required, the winning points are legal arguments, not mitigation

    when you submit it, dont fall into the traps of admitting who the driver was , select "other" and add the appeal as a word doc or pdf, by attaching it at the appeal time itself
  • Coupon-mad
    Coupon-mad Posts: 152,455 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 31 October 2015 at 4:07PM
    Like Redx says, you just choose 'other' and attach your full PDF appeal - I do that for appellants every day and attach 10 page appeals, I don't answer any other points, just choose 'other'. IGNORE what the POPLA website says - that was written with 'help' from the BPA we think and was before 'new' POPLA even took any cases on (last month, it's a brand new service provider) so they have NO IDEA what makes a decent appeal until they get used to reading them!
    I have fortunately kept the original ticket which covered me from 12.00 -14.00 but the PCN shows the car entering at 11.56 and leaving at 14.07.
    Doesn't matter - that merely exposes the scam at Tower Rd and other sites, where PE are using the camera timing, contrary to good faith in a P&D car park. Obviously, under the principles of 'fair and open dealing with a trader' (unlike what's happening here) you are entitled to rely upon the P&D ticket and have time to leave and the BPA says a full ten minutes is now expected to be allowed just for the time after P&D expiry. Add to that the fact you would have needed at least another 10 minutes at the start at this busy car park before being in a position to get a ticket from the machine, having arrived, driven down and in, queued to park, got yourselves out and wrapped up warmly as you describe, then read the wordy sign, they are clearly operating a con here.

    Change 'registered keeper' throughout, to 'keeper' (because you are not the registered keeper at the DVLA are you, it's a company car):
    Background from the appellant who is the [STRIKE]registered[/STRIKE] keeper

    Typo here, needs the words 'company car':
    walking back to the car for the REG as the had had just been changed and getting a ticket.

    You said earlier:
    My car is a company car so I received the letter
    Surely you mean your employer received the PCN first? So that caused you distress and embarassment and could have caused you loss if your employer had just paid it then billed you (as many do). If so, if your employer got the PCN first, add that to the 'background'.

    Then (surely, am I right?) after you appealed as 'keeper' PE sent you your own version in your name, too late for keeper liability to apply?

    So add the facts about the date you were served with a PCN in your name, to your point #2 - PCN was served to me as keeper too late for keeper liability (say why/dates). They had to get that to you as keeper by day 15 and are allowed no extension of that time even when the first PCN goes to the 'company owner'. The POFA deadlines are mandatory.

    Or am I barking up the wrong tree, did they not send the first PCN to your company?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • eadxw23
    eadxw23 Posts: 11 Forumite
    Brilliant thanks all I will re-read your points and update, thanks again
  • eadxw23
    eadxw23 Posts: 11 Forumite
    guys firstly massive thanks for taking the time to read this and provide advice, I really do appreciate your support.

    ok I have taken the advice from above and this is my next draft, sorry its taken so long to put together. The grace period point from BPA COP is a great shout, min of 10 mins and they gave me 7!!

    Re: ParkingEye PCN, reference code
    POPLA Code:
    Background from the appellant who is the company car keeper (the driver was not evidenced):
    I should start this appeal by explaining the impact of this parking charge notice. The vehicle is a company car so my employer received the parking charge notice and sent onto myself during work hours and this affected more than I expected. I had been home from my Newquay holiday for a couple of week and received the £100 ‘parking charge notice’. Just for POPLA this is how this Parking Charge Notice affected me. First I was I so upset as id saved for this budget caravan holiday as I had only recently found out I was expecting my first child and money was going to be very tight with the baby’s arrival. I have lost sleep over worrying about paying this and the threat of going to court.
    I have spent time researching ParkingEye as I had never come across them before and found this appears to be an all-too-common, misleading trap set by ParkingEye this Summer, as widely reported online by victims and I now feel strong enough to exercise my right to appeal this to POPLA.
    I am the keeper but I was an occupant of the car so can give you an honest account. The driver will not be named because I wish to use the protection offered to keepers in the POFA 2012, as one of my appeal points.
    We drove to the beach on our first day in Cornwall after travelling that morning from Essex while our caravan was being cleaned for us to check in. As we had never been to Cornwall before Following SAT NAV we got to fistral beach and followed the large signs for Fistral beach parking. The driver drove into what was signed as a ‘pay and display’ car park. The driver queued at the ticket machine and paid for up to 2 hours parking, got the tickets and after time spent on Fistral beach we returned to the car within the 2 hours, removed our extra layers, knocked the sand off our shoes and reset the SAT NAV and left.
    How a £100 ‘parking charge notice’ can arise from that, without being unlawful, is beyond us.
    I submit the points below to show that I am not liable for the parking charge:
    1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
    2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
    3) No Grace periods BPA –code of practice
    4) No standing or authority to pursue charges nor form contracts with drivers.
    5) No genuine pre-estimate of loss.
    6) The signage was ambiguous and unclear

    1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
    It seems from my research of this issue that, unbeknown to the driver, the car was being timed secretly by cameras from a significantly earlier point than when the driver bought the ticket. So although we were back in time, ParkingEye had also accounted for some 11 minutes or so, from when we entered the carpark until we left ! They have counted in their alleged ‘parking time’ the minutes spent driving round, looking for a space, then parking up, getting my pregnant girlfriend out the car, adding extra layers, removing valuable items from car display and then walking to the pay and display machine, queuing to pay, looking for the right change, walking back to the car for the REG as the had had just been changed and getting a ticket. Also adding the time as we returned to the car , and got ready to leave the car park at the end of our stay. These minutes were perfectly reasonable activity for anyone arriving at a beach car park for the first time, were not part of any ‘period of parking’ and were before we even had an opportunity to read any sign and pay & display!
    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.
    This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:
    Link
    ‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
    REGARDED AS UNFAIR - 1. Terms which have the object or effect of –
    (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
    (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’
    Unfair Contract Terms Act 1977:
    ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’
    I would also mention the case in 2014 at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach. It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions.
    In our case, the driver relied upon the expiry time on the Pay and Display ticket, which the driver kept and a scanned copy is attached to this appeal. We returned to the car in time so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.
    Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith.
    If both parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a ParkingEye run car park and never will again.
    A Pay & Display machine system is incompatible with ANPR enforcement; an operator cannot run two systems with two timings and favour the one which operates disadvantageously to consumers.
    Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.
    This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.
    2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
    PCN was served to me as keeper too late for keeper liability. The PCN was only received by the company I work for on the 28th September even though parking eye claim it was issued on the 23/09/2015. This finally reached myself on the 1st October. I submitted my appeal and the PCN was then issued to myself on the 21st October 2015. I believe that Parking eye needed to issue this to myself as the keeper by day 15 which is outside the mandatory POFA deadlines.
    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...'
    NTK is not compliant, for example re this requirement:
    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.
    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 Grace periods BPA –code of practice
    Parking Eye not in line with the BPA COP:
    You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
    The driver left this car park at 14.07 and the ticket covered until 14.00 so Parking have not given the 10 minute grace period.
    4) 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.
    5) No genuine pre-estimate of loss
    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’’
    LINK
    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.
    The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area.
    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.''
    6) The signage was ambiguous and unclear

    The sign 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.
    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
    This concludes my POPLA appeal.

    Yours faithfully,



    xxxxxxxxxx keeper's name...}
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    1) and 5) were kicked out by the Supreme Court last wednesday, so you havent taken any account of their verdict in the Beavis case (Beavis and Parking Eye)

    have a look at this recently amended one and then amend yours accordingly

    https://forums.moneysavingexpert.com/discussion/5353963
  • Castle
    Castle Posts: 4,831 Forumite
    Part of the Furniture 1,000 Posts Name Dropper
    Redx wrote: »
    1) and 5) were kicked out by the Supreme Court last wednesday, so you havent taken any account of their verdict in the Beavis case (Beavis and Parking Eye)

    have a look at this recently amended one and then amend yours accordingly

    https://forums.moneysavingexpert.com/discussion/5353963
    Personally I would leave them in as it's a different set up to Beavis. This is a pay and display car park where you can stay as long as you like, so long as you pay.

    I also suspect that PE are only an agent; but even if they were the principal they would have allowed the driver to stay longer if he had paid the extra £1 or whatever to them for the extra hour.
  • eadxw23
    eadxw23 Posts: 11 Forumite
    Thanks Both, I will have a look at example however I feel mine is slighty different case but thanks for the advice.
  • eadxw23
    eadxw23 Posts: 11 Forumite
    Hi All , i just wanted to say a massive thankyou to all those who took the time to support me on this appeal. I have recently recieved the letter from the Scum Parkingeye dropping their case !! So so pleased and its great people on here took the time to help me with my appeal thank you all so so much !
  • FAB !

    Tell everyone you meet how you have been treated :-)
    Illegitimi non carborundum:)
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