Tower Road Newquay - no NTK

Kaloki

Hi everyone, I just need a little advice re: ParkingEye. I've read the Newbie thread and searched the forums, so have some of the info I need, but there's a few bits I need more advice on.

We parked in the Tower Road carpark in Newquay, paid in full, left before our time was up, but then found out we were being penalised for the time spent finding a space (it was the height of summer and a busy day).

We've appealed via template but lost (as expected), we now have a POPLA code.

First question - we didn't receive a notice to keeper or a windscreen ticket, we only got a letter stating that "requirements of Schedule 4 of the Protection of Freedoms Act in respect of keeper liability have now been satisfied and as 29 days have passed from the date notice of the Parking Charge was given, ParkingEye now has the right to recover any unpaid part of the parking charge from you."

How can we fight this point with them?

Secondly a lot of the advice seems to depend on the wording of the notice to keeper, which - as we don't have it - makes it difficult. We plan to fight it on the following points - grace period, inadequate signage, no demonstrated keeper liability, is there anything else we have missed that might help?

KeithP

That first letter you received, addressed to the keeper, was the Notice to Keeper.

Kaloki

We've only received one letter. That letter stated that they sent a Parking Charge 29 days ago, which we never received.

The one we've received was sent on the 10th October, for parking on the 31st August.

Umkomaas

Well you make that one of your appeal points to POPLA, that the first notification you received was xx/xx/xx which is ‘y’ days after the parking event. Therefore Keeper liability cannot be invoked.

If PE argue they have sent an earlier letter, they need to prove that via a ‘proof of postage’, not just a replica copy of anything they purport to have sent out - that is not legal proof of delivery!

It is in the public domain that PE have been having some serious problems in delivering timely NtKs, although most of these have been 4 months+ after the event. Nonetheless, you should still refer to that in your appeal.

Kaloki

Thank you, do you know what the law/BPA code regarding this is?

Umkomaas

Kaloki wrote: »

Thank you, do you know what the law/BPA code regarding this is?

About what is?

Kaloki

Sorry, I wasn't very clear. It was about when the first letter should have been received, found it now.

Kaloki

So, we've written our appeal but not sent it just yet. How does it look to everyone? We have stolen from many people so thanks to everyone thats written an appeals thread about tower road for the last 6 months, and all the newbie info!

EDITED TO REFLECT CHANGES PROPOSED BY LOVELY PEOPLE THAT HATE PARKINGEYE !
---

Dear Sir or Madam,
I am writing to challenge a parking charge received for parking at the Tower Road, Newquay car park on 31/08/2017. This car park is run by ParkingEye Ltd.
To protect the driver, they have not been named.
My appeal as the registered keeper is as follows:
1. ParkingEye’s Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 or BPA Code of Practice 2016 .
2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3. Insufficient grace period
4. Inadequate signage
5. Landowner authority

1. ParkingEye’s Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 or BPA code of Practice 2016.

In BPA Code of Practice 2016 – 21.5 ‘Making use of Keeper Liabillity provisions’ the BPA member must ‘meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).’

Schedule 4 of the protection of freedoms act 2012 recovery of unpaid parking charges states:
“(4) The notice must be given by: (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.”

As the Notice to Keeper was received on the 10th October 2017, and the date of event listed is 31st August 2017, that period of 14 days had long elapsed, and thus renders ParkingEye in contravention of the BPA Code of Practice and Protection of Freedoms Act 2012.


No Parking Charge Notice was issued to us prior to the sudden 'liability letter' dated 10th October 2017, which arrived out of the blue, referring to a purported 'PCN' which ParkingEye alludes to, but does not provide any date for, as no such PCN was ever served. I put the operator to strict proof of when this purported NTK was actually posted, according to their records which must exist if such a letter entered the mailing system.

Absent such proof, my point that no NTK was ever served in time (or at all, in fact) is deemed correct and proven sufficiently on the balance of probabilities, so POPLA will not be able to find that any PCN was 'properly given'.

Having failed to comply with POFA 2012, ParkingEye Ltd has no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply. (See my next point).


2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

In cases with a keeper appellant, yet no POFA 2012 ‘keeper liability’ to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced. It has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported ‘NTK’ was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”


3. 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 30 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.

On the day of the alleged event, it was summer, on a very hot day, and the car park in question is situated very close to the beach. Therefore, it was incredibly busy, and we had to drive around for a considerable length of time before being able to find a parking space. Not only was it busy with cars, it was busy with pedestrians exiting vehicles, entering vehicles, families escorting children across the road, surfers with surf boards crossing in front of traffic. This resulted in the 30 minute different between entering and buying a ticket.

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 in my next point (4. Insufficient signage), 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. Additionally, whilst queing and avoiding pedestrians, not all areas of the car park have clear lines of sight to the signage and thus it is not reasonable to expect us to have been able to read them whilst driving, navigating hazards and parking.

Kelvin 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.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 15:23:59 and driving out at 18:56:39 on the same date. Although no mention is made of any ticket purchase on the NTK, ParkingEye have implicitly acknowledged a ticket was purchased in their rejection letter. I quote “Our records show that insufficient time was paid for on the date of the parking event”. ParkingEye must accept a ticket was bought at 15:57, for a duration of 3 hours, and that we left before that time expired.

There is precedent for a wait for a space as long as 30 minutes being a reasonable wait.
3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked.

The judge found in favour of the defendant in this instance.


4. 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:
link
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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

link
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.

The letters seem to be no larger than .40 font size going by this guide:

link

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

link
''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.''

...and the same chart is reproduced here:

link
''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:

link

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.

Furthermore, terms and conditions are not available until entry is made and if the operator asserts that the charge is applicable from entry, this information should be prominently displayed prior to entry, not after entry. It is not reasonable to expect us to agree to terms and conditions upon entry if they are not given prior to entry.

5. 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 a full, contemporaneous and 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

Therefore, it is respectfully requested that this parking charge appeal be upheld on every point.

Yours faithfully,

Me.

The_Deep

Have you read this


https://uk.trustpilot.com/review/www.parkingeye.co.uk

Kaloki

The_Deep wrote: »

Have you read this


link

I'm not sure what on there you are directing me at? Of course if I'd have seen this prior to my cornwall holiday I would have avoided it like it was radioactive.

Umkomaas

No Keeper Liability - you need to require PE to show proof of posting to POPLA if they are to argue they had previously sent a compliant NtK within the prescribed timescale. You also need to mention that they have had issues with the late delivery of NtKs - as reports in the public domain confirm.

On Grace Periods - don’t forget that PE will likely have documentary evidence of ANPR entry time and the time you entered your VRM into the ticket machine. They will have more actual evidence of times than you do just via your assertion.

But don’t forget that there is a minimum of 10 minutes in which to leave the car park also to factor in.

Also in your GPs section, is it Kevin or Kelvin?

Landowner Authority - you need to emphasise that a full, contemporaneous and unredacted contract is produced. Further, you have to more fully state why a witness statement (which PE produce template ‘fill in the spaces’ versions) is not acceptable to you, neither should it be to POPLA as there is no ‘audit trail’ back to the actual owner if the WS is just signed by a person whose status and authority is unclear.

There are a number of Tower Road POPLA cases in this link, so use that to navigate further and see if there are some ideas on how to really box this point off in your favour.

https://forums.moneysavingexpert.com/discussion/comment/73360973#Comment_73360973

You seem to have the other key points covered, but I’ve not gone through them in any depth, so me not commenting on them doesn’t mean I’ve ‘signed them off’. Others may comment.