Parking Eye, Newquay, Tower Road

silentcow

Right, I have my POPLA code back and have edited my piece for the POPLA. If anyone could give me feedback, that would be greatly appreciated.

"I am the Registered Keeper of the vehicle and appeal the parking charge on the following points :

1) No breach of contract
The operator is basing this claim on breach of contract for purportedly not making payment for the full period of parking. The operator has provided no evidence that this is true. They have simply provided a time that they presumably assert is the beginning of any parking contract and the end of it. However as this time is presumably recorded by ANPR camera :
a. There is no evidence of where this arbitrary time was recorded. There are no images to relate it to any position inside or outside the car park. It is reasonable to assume that a driver would believe any requirement to pay begins when a vehicle actually parks in a parking bay, especially when other terms and conditions on signage relate to the parking tariffs. Therefore, signage clearly refers to parking tariffs – not time spent within the car park. As the driver spent 28 minutes waiting for an appropriate car parking space, which needed to be on the end of the row to allow the removal of a baby seat from the back door, then this time cannot be construed as time spent parked. End spaces in the car park are limited and on a busy summer’s day are often filled early. With a sleeping child on board, it was not an unreasonable assumption by the driver that waiting for one to become available would not incur a charge.
In the case of Hotchins v Parking Eye 2014, a judge ruled that time spent circling a car park to find an appropriate space cannot be construed as time spent parked. In no way, therefore, did it obstruct or prevent the operator from making money from the spaces that were being used in the car park at the time.
The claim that a fine in someway recoups losses is totally irrelevant as there was no parking space occupied and, therefore, no service being used. The car was not parked.
b. The operator is seeking to impose a requirement on a driver to pay from the instant they enter the car park and for a time of which they are completely unaware. As the driver had no idea whatsoever when this timing was taken it is consequently impossible for a driver to know what time payment must be made by. Even if the driver realised an ANPR recording was captured they would have no idea of the time that the ANPR would be recording . Even if the driver had a watch, it and the ANPR equipment are not synchronised in any way and the operator provides no method for the driver to know what time they are using as the beginning of the charge period, even though their cameras record to the nearest second. This contractual term is clearly unfair with reference to UTCCR (1999)
5.—(1)!A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
It is impossible to argue that the operator is acting in good faith when they are imposing a requirement on the driver to make payment within seconds of entry, yet not informing them of when that requirement begins. This clearly causes an imbalance in the parties’ rights to the detriment of the driver . The term is unenforceable.
Indeed, not only are Parking Eye failing to act in good faith with customers – they are actively seeking to punish their own customers’ loyalty.
The British Parking association states “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” If the driver is unaware that their time begins the instant they enter the car park, regardless of whether or not they are parking, then this is a clear breach of this agreement: there is no transparency in the operating of this car park. The driver was a genuine customer and had they known that these were the real terms of agreement, they would never have stayed on the premises.

2) Unclear and ambiguous signage
The signage which exists in the car park refers to parking tariffs and does not state clearly to any driver that these tariffs are for time spent in the car park, rather than time spent parked (please see attached photographs). The detailed signs themselves exist with their backs to the entrance and the smaller print at the bottom is unreadable from the ground. Therefore, there is no way a driver could understand, let alone accept, the terms of the car park immediately upon entry. This is a clear breach of the transparency agreement within the BPA code of practice (21.1). For the timing to be compliant it should state that the ANPR system is used to determine the length of stay in the car park, clearly to the driver upon entry to the car park – it does not.
There is no transparency from the company whatsoever and their insistence to call payment Parking Tariffs shows a clear attempt at driver deception. There is no clear notice, upon entry or anywhere in the car park, that ANPR cameras are being used to measure your time on entry and exit and directly relate this to what they term Parking Tariffs. A car simply turning around in their entrance would be deemed to be parked by their systems.

3) The parking charge is an unfair contractual term, not a genuine pre estimate of loss and a penalty and this case can easily be distinguished from Parking Eye v Beavis (which Parking Eye have quoted in correspondence).
Payment was made for one hour in the car park and 28 of the additional minutes were spent waiting, not occupying a space, so no loss has occurred and the operator is trying to impose a penalty and is attempting to enforce an unenforceable unfair contractual term. They are attempting to punish the driver for waiting to use their service. In short, they wish to punish someone who wanted to use their facility for the very purpose it was created: they are attempting to penalise the driver for using a car park to pay and park.

The contract being offered by the operator is a simple consumer contract. An offer of parking is made in return for a small tariff. A contract term that imposes a sum of £100 for a purported failure to make payment of a small parking tariff is clearly an Unfair Term. When the cost of parking for one hour is £2, a penalty of £100 is hugely disproportionate.

4) No keeper liability
There can be no keeper liability as the operator has failed to comply with the requirements of schedule 4 of The Protection of Freedoms Act ( POFA ) and consequently cannot rely on the provisions of the Act.

The purported parking transgression occurred on 28/07/16. No Notice to Driver as required by schedule 4 of POFA para 6(1)(a) was placed on the vehicle. The first communication on this matter was a Parking Charge Notice with an issue date of 12/08/16 that was received by post. As this was delivered by post, the creditor has failed to deliver a compliant Notice to Keeper as required by schedule 4 of POFA para 6(1)(b) within the relevant period of 14 days (schedule 4 of POFA para 9(4)(b) and 9 (5).) Beginning on, and inclusive of the day after the specified period of parking ended, the period of notice was equal to 15 days. The parking company has not met the keeper liability requirements] and therefore keeper liability does not apply.

I look forward to your response"

Coupon-mad

The first communication on this matter was a Parking Charge Notice with an issue date of 12/08/16 that was received by post.

Was this a non-POFA Notice to Keeper from ParkingEye, with the blank space at the bottom? Like here, where this OP has shown it:

http://forums.moneysavingexpert.com/showthread.php?t=5521110

If so, you need to add the new POPLA appeal point as shown in the POPLA Decisions thread at the weekend, which beat PE by telling POPLA that there was no evidence that the individual the operator was pursuing, is the person liable (driver only, in all cases when a non-POFA NTK is issued, or no NTK at all). Read the end of the POPLA Decisions thread and follow the link to the recent case where the appeal included that assertion, about the 'individual' (keeper appellant) not being evidenced to be the potentially liable driver.

silentcow

Thanks for that. I've had a look - and looking in detail at the scan of the letter on that thread - mine is different. There are two further paragraphs on mine referring to paragraph 9 2 b of the Protections of Freedom Act 2012 and the other referring to a warning if the payment is not made within 29 days.

silentcow

I am just looking at the POPLA website now but it only appears to allow 2000 characters in the appeal box. How do I get around this - do I attach a word document?

Umkomaas

silentcow wrote: »

I am just looking at the POPLA website now but it only appears to allow 2000 characters in the appeal box. How do I get around this - do I attach a word document?

Attach as a .pdf file. Just type in the appeal window 'Please see .pdf file attached. Car VRM xxxxx, PoFA ref number xxxx PCN ref number xxxxx' or words similar.

silentcow

Thanks for that - big help! I was lost.

Coupon-mad

When lost, search the forum. I said to a poster asking the same question a couple of days ago, anything you ask here has already been asked dozens of times, so in this case just putting '2000' in the search box for this board only (not the whole of MSE), gets the answer in seconds.

Redx

parking prankster is looking for info on the pcn,s and parking receipts for TOWER ROAD , Newquay

http://parking-prankster.blogspot.co.uk/2016/09/tower-beach-newquay-request-for.html

so if you have copies or scans of your recent pcn,s and payable tickets, I suggest you send him copies by email

thanks

silentcow

For the interest of others (if anyone is interested!), POPLA have replied that I lost my appeal. Bit shocked when reading the comments that the assessor seemed to suggest the time waiting for a space was time that I could have spent getting out of the car and reading the small print on the signage. I put a lot of time into that appeal and took a lot of very strong points from other appeals. The fact that POPLA now seem to be going against the Hotchins v PE (High Court Ruling) is a worry for others who might find themselves in a similar position. For me it's just a bit of a pain in the proverbial!

Coupon-mad

A pain - but still defendable in court on the same basis as the other cases (there is no 'HIGH COURT ruling' called Hotchins v PE!).