ParkingEye Fine - Tower Road, Newquay

Sam_Lyons

I've received a Parking Charge Notice of £100 through the post from ParkingEye. The Car Park was to the rear of a church on Tower Road, Newquay. I can't remember how long we paid for, but judging by the notice we overstayed by 12 minutes.

It hadn't occurred to me that your time starts on entry to the car park - while you aren't even parked - and ends as you drive out. Having an infant with us it took a bit of time unloading and reloading the car, which we hadn't accounted for. It is obvious that we weren't intentionally trying to short change the car park, and I think a £100 fine in these circumstances is totally unreasonable.

I have read something about a 20 minute grace time with this company which clearly hasn't been applied here. The car park was also almost empty which may not be significant, but adds to the feeling of being ripped off.

I don't know whether there are grounds to appeal based on the fact we only over stayed by 12 minutes? Or that we didn't know the time starts on entry to the car park, rather than from when you buy the ticket?

Any help would be appreciated.

Coupon-mad

Have a look at other Tower Road threads by searching this board (back on page one where you hit 'new thread' - look right of that button for the correct search box). Put in 'Tower' and 'this board'.

And read the NEWBIES thread near the top of the forum for your first appeal template. Submit that online and you could add a carefully-written extra line about them not allowing the TWO Grace Periods required under the BPA Code of Practice (Google it). One before you pay & display then at least another ten minutes after expiry of paid-for time. 12 minutes must surely fall foul of those two mandatory Grace Periods.

NEVER give away who was driving. You can say 'we' to keep it vague.

And BTW, does the PCN include the paragraph about 'keeper liability' after 29 days under the POFA 2012 OR does it have a blank space (missing paragraph) at the bottom of the front page?

Sam_Lyons

Yes, it does include a paragraph about the POFA 2012.

Coupon-mad

OK never mind - better if it doesn't (but most do).

You have the usual points of appeal for POPLA as you will see in other Tower Rd threads, which are usually won. Certainly 12 minutes surely offends under the Grace Periods mandatory two timings, before and after paying. It cannot be assumed to be 20 mins because only the second one is quantified as ten mins in the CoP, but it is entirely reasonable - and very quick - that you managed to drive in, park up and read the signs and buy the ticket within two minutes!

For now just use the first appeal in blue writing in the NEWBIES thread (an appeal not to be copied/pasted here please...no need) and add a line about the BPA CoP Grace Periods without saying who the driver was. Only choose 'registered keeper' on PE's drop-down appeal page, appeal in the name of the person named on the PCN.

Sam_Lyons

Thanks for your help, I have googled the BPA code of practice, and I have found our parking receipt. The photo of us leaving is 9 minutes after the purchase time on the receipt so we are within the minimum 10 minute grace time stated on the BPA code of practice. They should therefore have to cancel this charge.

Sam_Lyons

Update:

I appealed this PCN to ParkingEye. Just to recap, we paid for 4 hours, and were in the car park for 4 hours and 12 minutes. It took just over a couple of minutes from entering the car park to getting our ticket, which indicated a purchase time. We left the car park within 10 minutes over the purchase time shown on the ticket.

I appealed on the basis the BPA code of practice allows a 10 minute grace period at the end of the parking period. This appeal was rejected by ParkingEye. They simply said insufficient time was paid for. Presumably they are working out 4 hours and 10 minutes from the time we entered the car park, rather than the time shown on our ticket, which is ludicrous.

In my view this is a water tight appeal, so I have simply stated my honest case rather than using the template appeal's which can be found. I didn't expect it to be rejected by ParkingEye (maybe a bit naive) but I now plan on taking it to POPLA.

Does anyone have any experience or idea how this second appeal is likely to play out?

Coupon-mad

If you argue the Grace periods well, and quote the BPA CoP, pointing out the time taken at the start (three mins is amazingly quick to drive round, park, unload your beach stuff, lock the car, walk over and read the signs & pay!). Then showing your ticket scanned and embedded into your appeal document, proving that you left onto the road just NINE minutes after expiry of paid-for parking time, you should certainly win.

Here's one copied from a previous one written before; deliberately LOOOONGGG! You can save this as a PDF and attach it under 'OTHER' on the POPLA webpage, embedding a scan or close-up photo of the P&D ticket receipt where shown in red:



POPLA APPEAL - code xxxxxxxxxx

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice ParkingEye issued against it. I contend I am not liable for the parking charge, based on the following grounds, which are explained further below:

1) The two BPA 'Grace Periods' either side of paid-for time were not properly applied.
2) The Landowner Contract must evidence the definition of the services - the Grace Period is believed to be 15 minutes.
3) The signs in this car park are not prominent, clear or legible before parking.
4) The signs fail to warn drivers of what the ANPR data will be used for, breach of the BPA CoP, the CRA & the CPUTRs.




1) The two BPA 'Grace Periods' either side of paid-for time were not properly applied.

The BPA Code of Practice section 13.1, regarding “Grace periods”, states that operator’s “must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period". Section 13.2 notes that this grace period is for the motorist to decide whether they are going to stay or depart.

It is clear from the pay and display ticket:

(EMBED PIC OF THE P&D TICKET RECEIPT HERE)
...that the driver paid for 4 hours parking and was well within a reasonable 'arrival Grace Period' before paid-for time, having purchased the P&D ticket within just three minutes of arrival. Allowing for the actions after passing the first camera, of driving round this busy tourist car park to find a space then park, unload beach paraphernalia, lock the car, walk over and read the signs and then also pay for the ticket, it cannot be disputed that three minutes was more than reasonable under the circumstances.

Further, the BPA Code of Practice section 13.4 covers another mandatory period of grace which is to be allowed after paid-for time:

''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.''

It is clear that the driver left and drove onto the public highway at the exit, just nine minutes after the time shown on the pay & display ticket.

Taking both BPA Grace Periods into account and considering the type and location of this busy car park, we cannot understand why ParkingEye has issued this charge. I contend that the PCN was not properly given and trust that POPLA will agree that the time taken was not only reasonable but within the BPA CoP rules.




2) The Landowner Contract must evidence the definition of the services and it is believed the Grace Period in the contract is 15 minutes.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract - including the times/days of operation and the landowner grace period (which may be longer than set out in the BPA CoP) - is key evidence to define what this operator is/is not authorised to do.

Further, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, it cannot be assumed that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, especially as ParkingEye use copied/pre-signed, generic documents not even identifying the case in hand, the VRN nor even the site rules, operating hours, charges, exemptions and grace period.

A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. I put this operator to strict proof, to demonstrate full compliance with Paragraph 7 of the BPA CoP, which defines the bare minimum mandatory requirements:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

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.

Further, I reasonably believe that the Grace Period at this Newquay beach car park is likely to match that of comparable sites, including the Fistral beach site that ParkingEye used to ruin before their contract 'ended'. My evidence for believing that the landowner agreement is hiding a longer Grace Period is this article about that other similar car park, where it is stated that they allow a full 20 minutes before enforcement:

http://www.newquayvoice.co.uk/news/5/article/3428/

''Visiting vehicles have a 20-minute grace period when they enter and leave the car park before having to buy a ticket. If they go past that timeframe they will receive a £90 fine in the post. This also applies to people who buy a ticket and exceed their time by 20 minutes from when they enter and leave the car park. [...] “If a driver decided to stay then for example if you take five minutes to buy the ticket they will have 15 minutes past their ticket deadline to leave the car park.''

A reasonable interpretation, since this operator uses template contracts and was operating at Tower Road at the same time as they used to operate at Fistral Beach down the road, is that this landowner contract also includes a 20 minute Grace Period and ParkingEye are put to strict proof to the contrary.





3) The signs in this car park are not prominent, clear or legible before parking

Although ParkingEye is aware that the BPA CoP requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, based on my research I have good reason to believe that the signs in this particular car park were not sufficiently clear to give proper notice to the driver. I also contend that there was no agreement on the 'parking charge' at all because the signs in the car park itself are sparsely positioned and the tariffs are the only prominent sums in large lettering, drawn to a driver's attention when standing at the pay & display machine.

I have seen no site map and if one is produced in evidence I contend that it is not an up-to-date record of the current lack of signage around all bay areas. There are no signs at all along full runs of bays here so a driver can park and pay at the machine and never learn of £100 risk.

ParkingEye have failed to evidence that the driver was 'bound to' have seen the contract terms of the £100 charge itself. In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and brief and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed. In fact the signs are overly wordy and cluttered, such that even the most circumspect driver would see the tariffs and honestly believe the highest charge for parking was merely a few pounds.





4) The signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.

Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the boundary of the car park. It is not at all clear that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating parking charges for profit of the operator.

In fact, any reasonable driver would believe that they are authorised to park and rely upon the time on the printed receipt for paying & displaying and that the contract begins when the coins go into the machine and consideration flows between the parties. The time before that is not parking time but a mere 'invitation to treat'; a period that only starts to be deemed a contract after the signs have been read and the driver decides to stay.

This is the normal, accepted meaning of a 'parking restriction', which would never include the time outside on the road, nor when driving slowly round pedestrians with surfboards nor the time at the end, queuing to exit.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 'Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

I contend that the words 'total stay' conflict with the words 'parking tariffs' and the most favourable interpretation of that conflict and ambiguity, as drafted on the signs, is that the driver is paying a tariff to PARK. The driver could never guess that they are paying a tariff that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are then this must be transparently stated at that point, at the entrance.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial (not security) purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

I believe that this charge is unrecoverable from myself as keeper, due to all or any of the above appeal points.

Coupon-mad

Here's a challenge - spot the spelling 'error' in that appeal...!

Sam_Lyons

Update on this.

I emailed the BPA with all the evidence to complain and get their judgment. Firstly, they said the grace period at the start of the parking is not applied if you chose to stay. Therefore, because I was 12 minutes over the 4 hour period, they said the PCN was issued correctly. That was fair enough.

However, the ticket machines didn't calculate the parking period based on entry to the carpark. I therefore argued they weren't using the ANPR cameras consistently or transparently as required in the BPA Code, and that we were issue with misleading information. Bizarrely, the BPA rejected this and maintained the PCN was issued correctly.

I appealed with POPLA anyway, in my own words and true to what happened, and the appeal was successful. ParkingEye did not challenge it. Which leads me to believe they were trying to profit from me in full knowledge they were acting unfairly. Nice company.

Coupon-mad

Well done!

That was fair enough.

I'm not sure any posters here would agree. The BPA CoP allows a period before parking and a MINIMUM of ten minutes to leave after paid for time. One grace period does not cancel out the other, even the BPA's own Kelvin Reynolds separates and allows for TWO periods of time (of course, you'd have to!) before and after parking.

Thanks to Carthesis who found this in post #32:

https://forums.moneysavingexpert.com/discussion/comment/71692931#Comment_71692931


I see I observed earlier:

three mins is amazingly quick to drive round, park, unload your beach stuff, lock the car, walk over and read the signs & pay!

In fact I would go as far as to say that 3 minutes for that activity was nigh on impossible at this car park. And it suggests to me that the ANPR camera time was not at all likely to be in synch with the P&D machines, as we've seen suggested in other cases too. In marganne's case, the machine clock said 11.05am and the photo was taken by her, at least 5 minutes after she had driven in. Yet the PE PCN said the car arrived at 11.09am. How could she have taken a photo at 11.05 then?!

I think this may be a more common issue than we've realised and basically any discrepancy can rarely be proved and hands them a licence to print money, as if this despicable industry need any more excuses and methods.

Edna_Basher

Well done on your POPLA victory, Sam.

However, I think you're being too lenient with the BPA; in my view they are misinterpreting their own Code of Practice on grace periods to the detriment of consumers.

13.2 states that operators should allow the driver a reasonable grace period to in which to decide if they are going to stay or go. The most reasonable interpretation is therefore that this grace period must apply equally to drivers that decide to stay and not only to those that decide to leave without accepting the "parking contract".

13.4 states that a minimum of 10 minutes should be allowed after the parking contract has ended - if the location is one where parking is normally permitted.

We currently have a complaint lodged with the BPA about similar circumstances. Our case concerns a PCN issued by ParkingEye for an alleged overstay of 10 minutes and 44 seconds.

ParkingEye's evidence pack demonstrated that 1 hour's parking had been purchased and that the ANPR cameras captured the vehicle leaving the car park 8 minutes and 17 seconds after the the parking contract ended (i.e. the expiry time of the ticket). This was clearly within the minimum 10 minutes' grace period required under Paragraph 13.4 of the BPA Code to allow the driver to leave the car park.

The evidence pack also demonstrated that the ticket was purchased just 2 minutes and 27 seconds after the ANPR cameras captured the vehicle entering the car park. This is a perfectly reasonable amount of time for a driver to drive into the car park, find a parking space, park up, walk to the payment machine, read the signs, decide to accept the parking contract and then purchase the ticket.

We have highlighted to the BPA that ParkingEye's signs referred to parking tariffs not tariffs for time in the car park. We have also highlighted that the expiry time on the ticket was stated as being one hour after purchase, not one hour after the vehicle entered the car park. The only reasonable conclusion to be drawn is that ParkingEye have acted unfairly and are in breach of the BPA Code.

We're still waiting to hear back from the BPA.