Tower road Newquay

msa123

Hello All

Just need some advice

We went as a family of 9 on holiday in 2 cars to Fistral beach and parked in this car park. Same as the many on here We have received NTKs in the post on our return for both cars from parking eye.

I have read many of the examples in the last few days but have one problem which I'm not sure how to tackle.

My brother is the keeper of one car and my dad the other. I have gone on to the portal to appeal and for my dads car the paid duration shows 0 hours. I assume this could be because of not inputting the registration or inputting it incorrectly. The parking ticket was thrown away so we don't have it as proof of paying for the parking. However on the portal for my brothers car it shows he paid for an hour. Again no longer got the ticket.

We paid for an hour each for both vehicles but total stay according to the ANPR cameras was 1 hour 17 mins. Reading previous posts I think we should be able to fight it based on lack of grace period. For my brothers this should hopefully be straightforward and I will post the POPLA draft when I get to that stage.

But for my dads car would we be able to fight on the basis of the grace period because according to parking eye no fare was paid at all. Is there any other ground we have for appeal. I can't think of any way of proving we bought the ticket since it has been binned and also if the registration was not entered correctly then it won't be on their system. Any ideas how to tackle this?

Initially I will appeal using the template provided in the newbies thread but obviously expect it to be rejected and then have to fight it through POPLA

All help is much appreciated
Thanks

Redx

plenty of grounds in post #3 of that NEWBIES thread for fighting them, especially the grace period one (after the blue text is used to get popla codes)

in future , keep the paid for tickets for 3 to 6 months or it could cost you a lot of money

see here http://www.moneysavingexpert.com/team-blog/2017/05/30/throwing-pay-display-ticket-away-use-cost-100/

msa123

Redx wrote: »

plenty of grounds in post #3 of that NEWBIES thread for fighting them, especially the grace period one (after the blue text is used to get popla codes)

in future , keep the paid for tickets for 3 to 6 months or it could cost you a lot of money

see here http://www.moneysavingexpert.com/team-blog/2017/05/30/throwing-pay-display-ticket-away-use-cost-100/

Thanks. I mean even if parking eye go down the route of saying a ticket has not been paid for. Can we then still win the appeal?

Redx

if you can prove just one legal point you would win an appeal

so poor signage , no valid landholder contract , BPA CoP errors , NTK failures , POFA2012 failures , not the same as BEAVIS , and clause #13 GRACE PERIODS for the grace period one

you can put them to strict proof that no similar mistyped or mismatched VRM was put in at the time of the alleged incident

keeping the paid for tickets would have been best , because this is the proof of payment , same as when you go to asda and pay for shopping , no idea why people discard their proof of payment so quickly !!

I tell my wife to keep all proof of payments for at least 6 months now !!

your cases are no different to the hundreds of others we see about that place every year on here

msa123

Thank you for the advice

I will send over an appeal to parking eye now and then draft up the POPLA appeal and post when it's required

Redx

2 appeals need doing , one from each keeper , as keeper, using the blue text appeal

go on their website , appeal it , choose KEEPER from the drop down menu, copy and paste the blue text in

add an extra paragraph stating that they may have a mistyped VRM just after the entry time and to check their systems again to look for one similar to the VRM in question as the driver says that they definitely paid for a ticket

for the grace period one , add an extra paragraph

clause #13 of the BPA CoP allows for 2 grace periods , one before and one after parking , so these grace periods will be used in all appeals and in any future court case

msa123

Had the rejection from Parking Eye on the basis that insufficient time was paid for. Got the same for both appeals.

Would you read that to say parking was paid for, for both vehicles even though their system is saying 0 hours 0 mins was paid for, for one of them.

If this is the case then would I be ok to submit the same POPLA appeal for both.

Coupon-mad

I'd say the 0 hours one was because the driver put in the wrong VRN or the keypad was faulty.

Either way there are shedloads of grace period Tower Road POPLA appeals on here, all won AFAIK. Search!

msa123

Hi Everyone, please see below first draft of POPLA appeal, using templates from here. Please advise on any changes required.

All your help is much appreciated.

Thanking you in advance



Dear POPLA adjudicator,

POPLA Reference XXXXXXX
Incident date XXXXXXX
Car registration XXXXXXX
PCN Number XXXXXXX
Operator Name PARKINGEYE

I am writing to challenge a parking charge notice received for parking at the TowerRoad, Newquay car park on **/07/2017.

To protect the driver, they have not been named.

My appeal as the registered keeper is as follows:
1. Insufficient grace period
2. No evidence of Landowner Authority
3. Inadequate signage.

1. No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of a mere 17 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (13.2) states that parking operators "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." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”
For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 17 minutes.

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable. In fact this case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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 and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, 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, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. 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.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

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


3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

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 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.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''The signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Coupon-mad

Were both PCNs received by day 15 from the parking event, and do they both have the paragraph on the back about 'POFA 2012' and 29 days to keeper liability?

Just checking neither of you has a 'non-POFA' version, which would be good if you did.

I would remove this from your point #1 about grace periods because this bit isn't about grace periods and says 'as stated previously' which isn't the case:

As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Pad out in MUCH more detail for each appeal in this point #1, why this car park on that particular day, needed a reasonable grace period allowance for your car to drive around and find a space, which in itself takes x minutes at the start, then more minutes were spent queuing at the machine to pay (it being the height of Summer at a very popular beach car park with detailed signs to read and understand).

And then at the end, paint a clear picture of why it takes an average family ten minutes just to wend your way out past pedestrians carrying surfboards and a=other cars manoeuvring.

This sort of 'paint a written picture' about YOUR need for grace periods 'storyline' is already written in quite a few Tower Road POPLA appeals. Search the forum for 'Tower Road POPLA surfboards' and change 'show threads' to 'show POSTS' and you will see a few very quickly.

I would also add to both your appeals (yours and the other one) that there was nothing on the signs at the entrance or anywhere seen, that informed the driver that the timing could possibly start at the point of entry. The driver had no idea; nor does the PDT machine give people any information to suggest that the time on the printed ticket is actually wrong and misleading. Surely this is a misleading business practice, any reasonable driver would expect the time to start when the ticket is printed (which is the point that the contract is effected) and rely upon their hour expiring when the receipt says - anything else is perverse and a twisted interpretation of contract law.

Finally, you need to both log in and see what the PE website says about the overstay minutes - does it tell you how many minutes elapsed before the PDT was purchased in your case, and also how many minutes they are alleging formed the grace period at the end? If so, it helps you put more of a personalised argument into your grace periods point which IMHO, is vital. The Assessor needs to understand why in this car park at this time of year, on this busy sunny day, cars might have needed xx minutes before paying and xx minutes queuing, before they could rejoin that main road.

The person with the '0 minutes paid for' one also needs a bit more, because I think they won't see anything useful when they log into PE's evidence page about their ticket. It will look like they didn't pay at all and that is wrong, so they need an extra appeal point explaining that they did pay, and PE have failed to carry out reasonable checks for a VRN that resembles theirs, and merely producing a 'white list look up' for the exact VRN will NOT be helpful or a fair business practice, and will mislead POPLA, an should be rejected as no evidence at all.

The appellant in that case should call for a full printout either side of YOUR payment, with other VRNs redacted, showing the VRN that most resembles theirs, because until this point PE have not taken any steps to show they have even carried out their much-vaunted 19 point checks, designed to avoid unfair PCN issue for a mere keypad error. An error which may not even be the fault of the driver and could be due to sun-faded keys or faulty keys in their VRN entry system.

And I think that person could even attach a Witness Statement from you, confirming that you are another appellant (POPLA code xxxxxxxxxx) also caught out by this scam on the same day/same time, and that you can confirm as fact that the driver of VRN xxxx xxx did pay for an hour's parking and did key in their VRN, one minute before (or one minute after) your own VRN which is xxxx xxx, therefore you are not only witness to payment being made, and VRN being keyed in, but you are also pinpointing the time of payment for your friend in order to enable ParkingEye to revisit the payments and find the 1 hour payment that immediately (preceded, or followed, as the case may be - you will know!) your payment for VRN xxxx xxx.

Your WS to help his/her case, needs to be signed and dated and clear about the above, the time and the facts.

Coupon-mad

Also, to quote other advice on other Tower Rd threads:

Also, well worth your writing to Steve Double, the MP for Newquay, explaining your horror x 2 as a tourist family ripped off and harassed:

https://forums.moneysavingexpert.com/discussion/5622437

and

Have a read through the Newer Newquay Facebook group page where there are numerous posts about the damage being done to tourism in the area because of parking penalty regimes.

https://www.facebook.com/groups/NewerNewquay/

When you write to the MP, tell him that this incident has put you off ever returning to Cornwall for a holiday.