Yet Another Tower Road Newquay/Parking Eye Thread

Hodes101

Hi all.

New draft Poplar. Its been a while since I looked at this due to life/work commitments.

However have tried reading through a lot of recently POPLA's and hope this is a bit more meaningful.

C&C Welcome.

============================================

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

As a law abiding citizen who always pays their way I was deeply upset to return from holiday to find a ‘parking charge notice’.

I have researched 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.

The car was driven to Newquay on the penultimate day of our holiday to see the local sites and sounds. Having never visited the town before we followed the local signs for parking. The driver drove into what was signed as a ‘pay and display’ car park. We had 2 children under 3 in the car, the youngest under 6 months. We arrived at approximately 09:30 and a paid fee for for up to 3 hours parking knowing we would have to return to the car to feed the baby in short order. We got the tickets and after only a very short amount of time time spent Newquay the youngest was getting fractious and wanting food. We returned to the car well within the allotted time, packed the kids associated items in into the car, then spent approximately 30-40 minutes feeding the baby and before safely strapping them into the car and left. This was before the expired time on the parking ticket of approximately 12:30

Whilst a ticket was purchased lawfully for the parking time, I'm afraid it was not kept because the full allotted time had not been spent and I as the registered keeper did not foresee any reason to keep it, upon cleaning the car out on return from our holiday. To this date I have yet to receive any evidence that my car was present without a valid ticket, such as a photograph or similar.

The carpark on the day in question was very quiet. A point of note was that a work crew was present at the time repairing some tarmac or similar and would have seen us using the ticket machine to purchase our ticket. I am also assuming that ParkingEye would have a record of all purchases made on the day and since we had to enter our Number plate before even being allowed to purchase a ticket a record would have been kept.

I feel the fine for the requested amount not only unwarranted but also completely unfair.

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

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) The Notice to Keeper is not compliant with the POFA 2012 - keeper liability timeframe
3) No standing or authority to pursue charges nor form contracts with drivers.
4) No landowner authority
5) The signage in the car park was inadequate.
6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis
7) There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in.
8) Lack of Grace Period



1) 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.

Furthermore per Schedule 4 of the Protection of Freedoms Act, Paragraph 9, states that the Notice to Keeper must state the following:

9(1) ''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 9(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

ParkingEye does not identify the relevant land. The location is ambiguous: Tower Road, Newquay’ could imply the vehicle was parked on the road that passes through Newquay, which it was not, and there is more than one car park in the vicinity.

2) The Parking Charge Notice sent to myself as Registered Keeper incorrectly interprets the Protection of Freedoms Act 2012.

Paragraph 9(2)(f) of The Protection of Freedoms Act 2012 state:

...warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given

The PCN issued by Parking states the following:

“You are notified if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2010 and is subject to our complying with the applicable conditions under Schedule 4 of that Act.

Since ParkingEye are misquoting the Protections of Freedoms Act 2012 then they are not complying with said Act and as such can not rely upon it to hold be liable as keeper.

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 landowner authority

Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which ParkingEye do not.

Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ParkingEye to strict proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.

5) The signage in the car park was inadequate.

The British Parking Association CoP requires that terms and conditions on car parking signs must be clearly readable. The ticketing machines located at the car park detailing the terms and conditions of parking are very confusing to read and contain a large amount of writing in small lettering that is not easy to read or understand. The machines as well are difficult to use.

In accordance with the rule of contra proferentem it is reasonable for the driver to conclude that ParkingEye was one of the many private parking companies that choose not to use the provisions of POFA. The car park signage simply failed notify the driver that ParkingEye intended to exercise its rights under POFA.

6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

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

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

7) There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in.

As the registered Keeper and present at the time of parking at ‘Tower Road, Newquay’ I am fully aware that suitable parking was purchased. As I commented in 5) The ticketing machines were difficult to use. Since ParkingEye have yet to provide any details of the Parking ticket purchased, one can assume that it is because the details of registration number keyed in at the time might be incorrect.

Some PPCs have pursued charges when an O is input instead of a 0 & vice versa. What about a typo that is a simple transposition of two characters? It would be simple enough to have the automated systems test for this when no match is found on ANPR records. There has been no loss of revenue & while the automated systems can't take account where people have typed in the VRN of their second car most trivial mistakes could be caught e.g. in this case the machine should not allow a ticket to be issued when an incomplete VRN is entered.

8) Lack of Grace Period

Section 13 of the British Parking Association code of practise, states

13 Grace Periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
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 reach your signs and leave before you take enforcement action.
Section 16 of the British Parking Association code of practise, states
16 Disabled Motorists.
16.1 The equality act 2010 says that providers of services to the public must make ’reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machines.

I’d like to begin by restating the fact that the car in question left the carpark within the purchased time period, but I’d like POPLA to note and consider the following. Per 5) The ticket machines at ‘Tower Road’ were difficult to understand and use, and I would argue that trying to understand how to use them should be included in any Grace Period.

Furthermore as a parent of a young child, under 6 months, their feeding patterns and requirements are unpredictable. In this instance, for the health and well being of said child, a prolonged period of time had to be used in order to ensure it was fed and in clean nappies etc. and finally strapped safely and securely in a car seat, packing up an associated equipment (pushchairs, changing mats etc)

Grace periods must be 'reasonable' and are not set in stone. Given the circumstances stated above, I’d suggest that ParkingEye should not be able to rely on ANPR timestamps alone for capturing the true length of time that vehicle is parked in any of the properties it monitors. Further to this, there should be no legitimate interest in expecting a parent with young children to be able to ‘perform’ the task of leaving as quickly as an able-bodied person getting back into their car and driving out of a car park.

This concludes my POPLA appeal.

Yours faithfully,



xxxxxxxxxx {registered keeper's name...}

Coupon-mad

then spent approximately 30-40 minutes feeding the baby

Like I said earlier, remove this, it is not a reason to overstay in a parking space in POPLA's world.

Hodes101

Fair enough, I don't see how this shouldn't be taken into consideration.

Anyhow, as I state I do not believe that we did overstay, its background information.

Thoughts on the rest of it?

Hodes101

Ok, I've amended it as suggested.

C&C welcome before I submit it tomorrow.

Regards,

Alex

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

As a law abiding citizen who always pays their way, I was deeply upset to return from holiday to find a ‘parking charge notice’.

I have researched 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.

The car was driven to Newquay on the penultimate day of our holiday to see the local sites and sounds. Having never visited the town before we followed the local signs for parking. The driver drove into what was signed as a ‘pay and display’ car park. We had 2 children under 3 in the car, the youngest under 6 months. We arrived at approximately 09:30 and a paid fee for for up to 3 hours parking knowing we would have to return to the car to feed the baby in short order. We got the tickets and after only a very short amount of time time spent Newquay the youngest was getting fractious and wanting food. We returned to the car well within the allotted time, packed the kids associated items in into the car, strapping them into the car and left. This was before the expired time on the parking ticket of approximately 12:30

Whilst a ticket was purchased lawfully for the parking time, I'm afraid it was not kept because the full allotted time had not been spent and I as the registered keeper did not foresee any reason to keep it, upon cleaning the car out on return from our holiday. To this date I have yet to receive any evidence that my car was present without a valid ticket, such as a photograph or similar.

The carpark on the day in question was very quiet. A point of note was that a work crew was present at the time repairing some tarmac or similar and would have seen us using the ticket machine to purchase our ticket. I am also assuming that ParkingEye would have a record of all purchases made on the day and since we had to enter our Number plate before even being allowed to purchase a ticket a record would have been kept.

I feel the fine for the requested amount not only unwarranted but also completely unfair.

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

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) The Notice to Keeper is not compliant with the POFA 2012 - keeper liability timeframe
3) No standing or authority to pursue charges nor form contracts with drivers.
4) No landowner authority
5) The signage in the car park was inadequate.
6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis
7) There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in.
8) Lack of Grace Period



1) 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.

Furthermore per Schedule 4 of the Protection of Freedoms Act, Paragraph 9, states that the Notice to Keeper must state the following:

9(1) ''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 9(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

ParkingEye does not identify the relevant land. The location is ambiguous: Tower Road, Newquay’ could imply the vehicle was parked on the road that passes through Newquay, which it was not, and there is more than one car park in the vicinity.

2) The Parking Charge Notice sent to myself as Registered Keeper incorrectly interprets the Protection of Freedoms Act 2012.

Paragraph 9(2)(f) of The Protection of Freedoms Act 2012 state:

...warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given

The PCN issued by Parking states the following:

“You are notified if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2010 and is subject to our complying with the applicable conditions under Schedule 4 of that Act.

Since ParkingEye are misquoting the Protections of Freedoms Act 2012 then they are not complying with said Act and as such can not rely upon it to hold be liable as keeper.

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 landowner authority

Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which ParkingEye do not.

Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ParkingEye to strict proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.

5) The signage in the car park was inadequate.

The British Parking Association CoP requires that terms and conditions on car parking signs must be clearly readable. The ticketing machines located at the car park detailing the terms and conditions of parking are very confusing to read and contain a large amount of writing in small lettering that is not easy to read or understand. The machines as well are difficult to use.

In accordance with the rule of contra proferentem it is reasonable for the driver to conclude that ParkingEye was one of the many private parking companies that choose not to use the provisions of POFA. The car park signage simply failed notify the driver that ParkingEye intended to exercise its rights under POFA.

6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

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

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

7) There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in.

As the registered Keeper and present at the time of parking at ‘Tower Road, Newquay’ I am fully aware that suitable parking was purchased. As I commented in 5) The ticketing machines were difficult to use. Since ParkingEye have yet to provide any details of the Parking ticket purchased, one can assume that it is because the details of registration number keyed in at the time might be incorrect.

Some PPCs have pursued charges when an O is input instead of a 0 & vice versa. What about a typo that is a simple transposition of two characters? It would be simple enough to have the automated systems test for this when no match is found on ANPR records. There has been no loss of revenue & while the automated systems can't take account where people have typed in the VRN of their second car most trivial mistakes could be caught e.g. in this case the machine should not allow a ticket to be issued when an incomplete VRN is entered.

8) Lack of Grace Period

Section 13 of the British Parking Association code of practise, states

13 Grace Periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
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 reach your signs and leave before you take enforcement action.
Section 16 of the British Parking Association code of practise, states
16 Disabled Motorists.
16.1 The equality act 2010 says that providers of services to the public must make ’reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machines.

I’d like to begin by restating the fact that the car in question left the carpark within the purchased time period, but I’d like POPLA to note and consider the following. Per 5) The ticket machines at ‘Tower Road’ were difficult to understand and use, and I would argue that trying to understand how to use them should be included in any Grace Period.

Furthermore as a parent of a young child, under 6 months, their feeding patterns and requirements are unpredictable. In this instance, for the health and well being of said child, a prolonged period of time had to be used in order to ensure it was fed and in clean nappies etc. and finally strapped safely and securely in a car seat, packing up any associated equipment (pushchairs, changing mats etc)

Grace periods must be 'reasonable' and are not set in stone. Given the circumstances stated above, I’d suggest that ParkingEye should not be able to rely on ANPR timestamps alone for capturing the true length of time that vehicle is parked in any of the properties it monitors. Further to this, there should be no legitimate interest in expecting a parent with young children to be able to ‘perform’ the task of leaving as quickly as an able-bodied person getting back into their car and driving out of a car park.

This concludes my POPLA appeal.

Yours faithfully,



xxxxxxxxxx {registered keeper's name...}

Danny_Wright

Any progress with this?

I've just received 2 fines from this car park from my recent holiday and would like to know how you're getting on before I start my challenge. Thanks.

Redx

Danny_Wright wrote: »

Any progress with this?

I've just received 2 fines from this car park from my recent holiday and would like to know how you're getting on before I start my challenge. Thanks.

invoices , not "fines"

given that the POPLA process takes maybe 5 to 8 weeks to complete, it may be october before you get an answer, far too late for your invoices or appeals

Danny_Wright

Ok thanks, I'll get on with it.

What is a good thing to put as my reason for appeal on the parking eye website? They are saying I overstayed for 18 minutes on one day and 26 minutes on the other.

Thanks.

DoaM

Please start your own new thread.

Your initial appeal wording is the Blue text in post #1 of the NEWBIES FAQ.

Hodes101

Good News all.

========================================
Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference xxxxxxxxxxxx.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

=====================================


Thank you for everyones help and advice.

josingh20

Hodes101 wrote: »

So I've confirmed with the Golf Manager that they 'own' the land but he was pretty much unhelpful and wouldn't help me any further, just gave me some (what felt like) scripted answers that if I want to take it any further I should raise it to the committee who meet but once a month.

I too had this response when I called up the golf club. No can do was basically the answer. So no interest in the land owner cancelling my PCN.

Coupon-mad wrote: »

I would have a section about Grace periods (search the forum for 'POPLA Grace Period') and you will find a newer example I am sure.

I would remove the mention of specific minutes here because you are lending credence to PE's timings if you really think and tell POPLA you spent '34 minutes' feeding the baby (I doubt it). Much of that time was probably spent strapping the kids in and then driving out in a queue, dodging around pedestrians then queuing to leave onto the main road.



You need a section about unreliable ANPR.

You need a section about how the Beavis case differs from this situation and that there was no actual parking overstay (or was there? Do you mean you spent half an hour overstaying, feeding the baby, and didn't top up a then-expired ticket?). Was the ticket still in time as you drove out? If not, how much later, a few minutes? How many?

Have a look at Stacey's long POPLA appeal in my posts #162 and #163 here:

https://forums.moneysavingexpert.com/discussion/5478273

It's not PE but it is a similar 'ANPR camera' POPLA appeal from Newquay. You can't use the Equality Act argument unless a baby under 6 months was being breastfed (even then it's not something POPLA would consider). But that example shows you an up-to-date POPLA appeal with Grace periods quoted, and also a longer section on 'no landowner authority' with BPA CoP section 7.3 quoted, and most of what you need if you just ignore the 'disability' parts of the appeal.

Hi Coupon, I not sure where my action has got to but this OP is almost identical circumstances. My last letters received are from PE (dated 7th June - Letter before County Court Claim) and DRP (dated 17th August - Letter before referral for legal action). I've heard nothing since, and not sure what to do next. Any advice as Ive already had POPLA finalised?