Tower Road Newquay - ParkingEye/POPLA

josingh20

POPLA assessment and decision

23/02/2016



Unsuccessful Assessor Name
Robert Harrison

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant did not purchase the appropriate parking time or by remaining in the car park for longer than permitted.


Assessor summary of your case
The appellant has stated that they paid for their parking time, and that the operator has not allowed for the grace periods set out in the BPA Code of Practice. The appellant also states that the parking charge is not a genuine pre-estimate of loss.


Assessor supporting rational for decision
When it comes to parking on private land, a motorist accepts the terms and conditions in place at the site by parking their vehicle. The operator states that the appellant remained on site for one hour and 21 minutes, having paid for one hour, and therefore it issued a Parking Charge Notice (PCN). The appellant has raised grace periods as an issue, as they state the car park was busy, which prevented them from leaving sooner. Grace periods fall into two types. The first, covered by Section 13.2 of the British Parking Association (BPA) Code of Practice, is designed to allow a motorist the opportunity to read the terms and conditions, and then choose to reject them, and leave the site immediately. The second, as detailed in Section 13.4, states “you [the operator] should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” In this case, the appellant entered the site at 13.05, and purchased a ticket at 13.12. I therefore consider that at 13.12, the appellant has accepted the terms and conditions on site, and that the appellant would expect the parking time to start at 13.12. The appellant would therefore need to be ready to leave the carpark at 14.12. Section 13.4 allows a grace period for the motorist to exit the vehicle, and this period is deemed to be 10 minutes, as this is sufficient time to exit the site. This grace period is not for time spent loading the car, or feeding children. Taking this grace period into account, the appellant would need to exit the site by 14.22. The appellant left at 14.27, and therefore exceeded the time they paid for, and any applicable grace period. The appellant says the parking charge does not represent a genuine pre-estimate of loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear , the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. In reviewing the case, I find that the appellant has not complied with the terms and conditions set out on site, and therefore the operator has issued the PCN correctly.

josingh20

josingh20 wrote: »

Taking this grace period into account, the appellant would need to exit the site by 14.22. The appellant left at 14.27, and therefore exceeded the time they paid for, and any applicable grace period.

...Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear , the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. In reviewing the case, I find that the appellant has not complied with the terms and conditions set out on site, and therefore the operator has issued the PCN correctly.

Great, so I am going to have to pay a £100 fine for an overstay of 5 mins...!!!! Thanks a lot POPLA. This decision clearly tells me I shouldn't have even bothered to buy a ticket and the result still would have been the same.

josingh20

Coupon-mad wrote: »

In my view, PE can't just say 'ner ner ner...look, we won v Beavis; ner ner ner... £100 is the ceiling in the BPA CoP therefore the charge here is comercially justified to be a hundred times the potential, actual loss/tariff'. But they are saying that, so you need to explain how that is flawed logic and how this situation is indeed just a simple consumer contract with a tangible tariff/loss (which is denied anyway), nothing like the Beavis case and indeed unfair under the Consumer Rights Act (was the parking event after October 1st?).

Unfortunately it seems like this has gone against me in this case. I am going to have to consider my next move.

Coupon-mad

You need to read these threads and complain to the POPLA Lead Adjudicator but do not rush a knee-jerk email to them, you cannot compain about the 'outcome/decision' being 'wrong' only about specific issues such as evidence overlooked. DFind the specifics and the Lead Adjudicator can review.

I suspect they have such a backlog they are rushing...and missing vital evidence.

This one has a complaint about to be sent:

https://forums.moneysavingexpert.com/discussion/5354896

And here's an example of how to find out what a POPLA Assessor looked at and fire off a major compaint to lots of stakeholders:

https://forums.moneysavingexpert.com/discussion/5418086

Do that, if you think the Assessor did not consider the evidence properly, missed evidence, saw evidence from the PPC that you were never sent, or made an error (such as reading the POFA or BPA CoP wrongly).

josingh20 wrote: »

Great, so I am going to have to pay a £100 fine for an overstay of 5 mins...!!!! Thanks a lot POPLA. This decision clearly tells me I shouldn't have even bothered to buy a ticket and the result still would have been the same.

No you don't, even if POPLA do not review the case, the decision is not binding on you. I agree with what you say, sleep on it and come back tomorrow with a humdinger of a demolition job complaint draft.

Coupon-mad

Rationale of Decision broken into paragraphs to make it easier to read:

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant did not purchase the appropriate parking time or by remaining in the car park for longer than permitted.


Assessor summary of your case
The appellant has stated that they paid for their parking time, and that the operator has not allowed for the grace periods set out in the BPA Code of Practice. The appellant also states that the parking charge is not a genuine pre-estimate of loss.


Assessor supporting rational for decision
When it comes to parking on private land, a motorist accepts the terms and conditions in place at the site by parking their vehicle.

The operator states that the appellant remained on site for one hour and 21 minutes, having paid for one hour, and therefore it issued a Parking Charge Notice (PCN).

The appellant has raised grace periods as an issue, as they state the car park was busy, which prevented them from leaving sooner.

Grace periods fall into two types. The first, covered by Section 13.2 of the British Parking Association (BPA) Code of Practice, is designed to allow a motorist the opportunity to read the terms and conditions, and then choose to reject them, and leave the site immediately.

The second, as detailed in Section 13.4, states “you [the operator] should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.”

In this case, the appellant entered the site at 13.05, and purchased a ticket at 13.12. I therefore consider that at 13.12, the appellant has accepted the terms and conditions on site, and that the appellant would expect the parking time to start at 13.12. The appellant would therefore need to be ready to leave the carpark at 14.12. Section 13.4 allows a grace period for the motorist to exit the vehicle, and this period is deemed to be 10 minutes, as this is sufficient time to exit the site. This grace period is not for time spent loading the car, or feeding children.

Taking this grace period into account, the appellant would need to exit the site by 14.22. The appellant left at 14.27, and therefore exceeded the time they paid for, and any applicable grace period.

The appellant says the parking charge does not represent a genuine pre-estimate of loss.

The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount.

Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.

The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”

Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear , the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable.

While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. In reviewing the case, I find that the appellant has not complied with the terms and conditions set out on site, and therefore the operator has issued the PCN correctly.

Coupon-mad

And show us what rebuttal you sent in the end, was it the one discussed or something like it? Do you suspect the Assessor never read that and only looked at your FIRST appeal, like it seems has occurred in one of the linked threads I showed you just now?

I suspect POPLA are not reading rebuttals/ not showing them to Assessors or the Assessors only look at what's loaded on the portal. These cases need complaints about that, specifically pointing out where it seems your evidence/rebuttal was not seen/considered.

josingh20

Coupon-mad wrote: »

And show us what rebuttal you sent in the end, was it the one discussed or something like it? Do you suspect the Assessor never read that and only looked at your FIRST appeal, like it seems has occurred in one of the linked threads I showed you just now?

I suspect POPLA are not reading rebuttals/ not showing them to Assessors or the Assessors only look at what's loaded on the portal. These cases need complaints about that, specifically pointing out where it seems your evidence/rebuttal was not seen/considered.

I suspect they ignored my rebuttal, but then again who knows. Here is my transcript below:

Hi POPLA/To Whom It May Concern.


I have received an evidence pack from Parking Eye, and I would like to address several points that Parking Eye (henceforth referred to as 'PE') have raised.

Inline images 1

With regard to the PE case file I have the following comments to make.

Page 5 states:

"Date/Time in 19/09/2015 13:05:50
Date/Time out 19/09/2015 14:27:31
Time Allowed 0 hours 0 minutes 0 seconds
Time In Car Park 1 hours 21 minutes 41 seconds
Time Paid For 1 hours 0 minutes 0 seconds"

On the 10th October 2015 a PCN was received explaining that £100 was due and the total time in the car park was 1 hours 21 minutes. This was very upsetting and shocking to have received this PCN as a ticket was purchased for the correct period of time. PE have stated that the arrival time in the car park recorded was 13:05. Ticket purchase time = 13:12. So the first 7 minutes was taken up finding a parking space on a very busy summers day (car park was actually full and had to wait for a space to become available!), purchasing a ticket and returning to the car to display the ticket (surely this cannot count as extra time in the car park).

As for exit, PE have stated the departure time of the car recorded as 14.27. Time of ticket expiry = 14:12 (1hr parking had been paid for). Upon returning to the car, the remaining 15 minutes was spent loading up, driving round pedestrians coming off the beach and proceed along a fairly long access road, then queue to exit the car park to join the main road (which is where the second ANPR photo was taken), and then leaving the car park was entirely reasonable and none of it is part of parking time, as implied by PE.



As for grace periods, furthermore on page 6 PE then go on to say that:

"By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions and are authorised to park, only if you follow these terms and conditions
If you fail to comply, you accept liability to pay the fee for unauthorised parking
ParkingEye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose."


Assuming that this grace period is 15 minutes, it would appear that is only allowable for the first 15 minutes of entering the car park, yet within all the signage that they have used as evidence I can't see anything that states this, there is no statement of any kind on any of the signs regarding the aforementioned grace period, either before or after entering the carpark. Additionally the small print on the sign is illegible on their submitted scanned images.


Additionally on looking into the British Parking Association Code of Practice this requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for PE to ignore their industry code, which states re grace periods:

Prior to parking:-
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

Upon returning to the vehicle:-
13.4 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 11 minutes.

Therefore driving in and out within an allowed grace period is not a chargeable contravention and was not a situation covered recently by PE v Beavis.

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:

‘’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...’’

‘’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 –

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.’

The driver relied upon the expiry time on the Pay and Display ticket and returned to the car in time so complied with all the P&D machine terms, the ‘extra time’ was spent loading bags, which is not parking and all this non-parking activity was well within the grace period allowed by PE and by the BPA CoP.

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.



Again on Page 6, PE have said:
"You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss, or that it is extravagant, unfair or unreasonable. In this regard, ParkingEye relies upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67, which was found in ParkingEye’s favour
and concerned the value of our Parking Charges."


To this I would say that the Bevis case was entirely different and therefore does not cover this situation. As you will be aware, the Bevis case was about a 2 hours free car park where the penalty rule was 'engaged' but in that case alone, based on the unique facts of it, PE managed to persuade the Judges that they had 'disengaged' that rule by showing it was 'justified' to charge £85 in order to facilitate the offer of 2 hours free to everyone.

That's not the case here. It is an indisputable fact that the 'penalty rule' is certainly engaged in every private parking ticket case - but here, PE have failed to disengage it. It is unjustified to refer to Bevis case in the context of my appeal where the facts differ significantly, and expect POPLA to believe the same level of commercial justification applies where the tariff was paid for the period of parking (1hr) and the operator is in fact trying to charge for driving time/grace period time.

Seeing as the BPA CoP allows two grace periods, one before and one after paid for time (the second, on its own, must be at minimum 11 minutes even in an empty car park) and this was the height of Summer where the driver was delayed in moving traffic due to a very long queue on arrival and again upon leaving, any reasonable man would not expect to pay a 'parking tariff' for that driving time.


£100 is hugely disproportionate to any alleged unpaid tariff simply for non-parking time spent driving in and out of the car park, and also given that a ticket was paid for. The car was only actually parked for 1 hour and PE have shown no evidence of actual parking time to the contrary.

And in any case, the signs are headed 'parking tariffs' not 'driving in and out/moving traffic offence tariffs'.

And it is unfair in a consumer contract to provide a tangible pay and display ticket with a parking expiry time on it but then to try to hold a consumer to an unknown, unstated timing they can have no awareness of whatsoever. Sharp practice and unfair under the UTCCRs.


In summary, I respectfully request that the appeal be upheld and the charge be cancelled.



Yours Faithfully,

Coupon-mad

OK so your position is the same as other threads, like this one:

https://forums.moneysavingexpert.com/discussion/comment/70251272#Comment_70251272

I would be complaining to ISPA that POPLA are ignoring comments on the evidence and allowing PE to use and (it seems) misuse the Beavis case, whilst not allowing appellants (who had no previous real opportunity) to rebut the applicability of that case. Indeed POPLA appear to be making the parking firm's case for them when they spout the following when a case was about a standard contract (tariff) and was NOT like the 'complex' contract in the Beavis case at all:

The appellant says the parking charge does not represent a genuine pre-estimate of loss.

The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount.

Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.

The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”

Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable.

If that standard spiel emanating from POPLA day in, day out is not 'making the operator's case for them' (regardless of whether the case is a complex contract or a standard economic contract) I don't know what is. Someone has told POPLA that the Beavis case applies to all parking ticket cases and they are letting consumers down massively with that wholly wrong interpretation. Your rebuttal covered some of the major differences and clearly distinguished any pay and display tariff dispute from that judgment, going far past the level that a consumer should be expected to use on appeal and citing from the hearing judgments relevantly.

Yet POPLA ignored that then spouted their standard paragraphs about 'the Beavis case' which is not acceptable and not applicable. They are letting the public down by seeming to have been misadvised about one case, now using it where it does not apply. The Beavis judgment was applicable to one car park and one unique and 'complex' contract, which was NOTHING like this standard financial contract of the very type mentioned at Court of Appeal stage as being one they'd seen so many times before, where the loss/GPEOL is easily quantifiable.

josingh20

Ok, so next method of attack is complaint to ISPA and a follow up letter to the golf club.

Is it too late to go back and look at NTK and argue the toss in your opinion?

Coupon-mad

No, try all avenues like that other poster has. But be aware ultimately this can only be decided in a small claims court near you and as I said to the other guy, worst case is you end up losing and paying maybe £190, if this goes that far - which many PE cases do.

That other poster started by complaining to POPLA before ISPA, you need to do this in the right order of course and exhaust POPLA's complaints procedure first.

You need to complain that they've missed some evidence from your first POPLA appeal (if so, what did they miss?) and/or didn't allow you a fair chance to rebut the Beavis case. A judgment which isn't applicable to a tariff car park 'standard contract' where the loss is still a relevant consideration - something which was stated in the Beavis judgments themselves! In particular in the Court of Appeal this sort of monetary 'standard contract' with a quantifiable loss (not a free licence to park) was mentioned as 'entirely different' from the case they were considering in PE v Beavis!

How can POPLA miss/ignore the fact that Beavis does not apply? How can consumers have any confidence in POPLA who seem intent on applying Beavis where it has no application?

Even worse, by ignoring your comments and using that 'look we know about the Beavis case now, we thought about it for months then someone fed us a certain line...and we swallowed it' standard wording they are writing the parking firms' cases for them which is completely unacceptable for an independent service like POPLA, especially as they ignored your argument showing why the Beavis case isn't applicable to this more simple finanical contract (tariff) dispute.

Tell POPLA you will escalate this to ISPA, so they know. Tell them their standard regurgitation about PE v Beavis smacks of writing a case on behalf of parking operators, whether the case is supported by the Beavis case or not. Surely that cannot be POPLA's intention but that is what is happening and that approach is not independent nor fair on consumers. Point out the 'comments on the evidence pack' stage was the first real chance you had to rebut the applicability of the Beavis case, and you showed exactly why the case does not apply yet were insulted with the usual 'one size fits all' mistaken citing of the Beavis case by POPLA who should know better.