Tower Road Newquay PCN issued

Dkgarg

Hi

I went to Newquay on 25th August and parked my car in parking operated by Parking eye. I paid for 3 hours using mobile app as the machine was not working. But a pcn issued to me on 29 Sept (after 30 days) showing entry at 14:11 and exit 17:38:07. Though I paid for ticket between 14:28 to 15:28. I am short of 17 and 10 minutes at both end. I apeal to parking eye based on Pofa 2012 and ticket take. For 3 hours but it’s been rejected for insufficient time. Please help what should I write to popla for a successful apeal


Thanks
Dk

Castle

Do Parking Eye know the name of the driver?

Redx

if the drivers details were given, its not going to look good for the driver at any appeal stage or court

Dkgarg

Pcn is issues against my wife who is a registered keeper of the car.

Dkgarg

I have drafted an apeal based on templates available online. I will post that if anyone can help correcting that would be really great.

Redx

no need to look online

draft a popla appeal based on recent ones from here, especially the examples in post #3 of the NEWBIES FAQ sticky thread


post the draft below for critique , like everyone else is asked to do

Dkgarg

POPLA Appeal
Vehicle Registration Number:XXXXXX
PCN Reference: XXXXXXXX
POPLA ref:XXXXXXXX
Issuer: Parking Eye

Dear POPLA Adjudicator,

I, received a letter dated 27-09-2018 acting as a Parking Charge Notice. My appeal to Parking Eye was submitted and acknowledged by the Operator on 17-Oct-2018 and rejected via an email.

I contend that I, as the driver, am not liable for the alleged parking charge and wish to appeal against this unfair charge which was not properly given on the following grounds:

1. A valid ticket was paid for online and sent a copy.
2. No grace period allowed/applied – BPA Code of Practice – non-compliance
3. Inappropriate use of ANPR technology – The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.
4. The signs in this car park are not prominent, clear or legible from all parking spaces.
5. The operator is put to strict proof of full compliance with the BPA Code of Practice
6. The charge is a penalty, breaches the CRA & is not served with POFA 2012

1. A valid ticket was paid for and placed inside the vehicle

A valid ticket was purchased on 25/08/2018 for a total duration of three hours between 14:28 and 17:28 (please see Image 1 showing mobile app screen shot and text message). This ticket was taken online (As I remember the machine was not working It takes time to download an app and create account, pay for your parking).


2. No grace period allowed/applied – BPA Code of Practice – non-compliance
The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.
The BPA‘s CoP states:

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 read your signs and leave before you take enforcement action.
13.4 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.
The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. It is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.
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.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this
Link britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

“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.
So the BPA believes that 5-10 minutes 'observation' period is acceptable depending upon various factors and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.''

The ANPR photos on the PCN show an arrival time of 14:11 and a departure time of 17:38 – an alleged overstay of just 10 minutes after paid-for time on Aug long holiday, which is unfair and contrary to the BPA stated policy. Departure time is 7 second more because it is taken camera outside the parking.

Although no mention is made of any ticket purchase on the PCN, I am attaching the photo of the ticket which I purchased at 14:28 for 3 hours of parking, which expired at 17:28. In their appeal rejection letter, Parking Eye state that “insufficient time was paid for on the date of the parking event.”


Tower Road, Newqay is extremly busy location due to popular beach. It is also an extremely rough uneven surface, littered with potholes and loose stones and gravel, making it difficult for a driver to manoeuvre safely and find a parking space.

The same arguments relating to difficulty in arriving are made as to the difficulty of leaving the car park at the end of any stay.
The facts are that it is difficult to drive around and hard to find a space in this car park that is badly pot-holed. Specially during summer long weekends, parking is extremely busy, you need to wait in the car for long to get a parking space. When manoeuvring through this site it would be at least 5 - 10 minutes before any driver is likely to have managed to park and then walked over to a pay machine to read the wordy terms.

On the day in question the ticket machine closest to me and near the entrance was out of order, and all the drivers had to call or use mobile app in order to purchase a ticket.
And I used the app, which takes time to download specially in costal area’s where the network is not so strong and fast. Then create account and pay.

At the time of leaving the car park, I came back to the car before my time finished, had to wait for my pregnant wife and 3-year-old daughter to settle in the car and put all the stuff inside the car before I leave.
Finally, some 3 years ago years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

“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 recommendation reads:
“Reword Clause 13.4 to ‘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 11 minutes.”
(Source:link

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that reasonable time should be allowed to enter a car park, locate (and read) terms and conditions, decide whether to enter or not into a contract before paying.
It is therefore argued that the duration of stay in question (which Parking Eye claims as ‘overstay’) is not an unreasonable grace period.

And, taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park, wait to get a parking bay, out-of-order machine, reading all rules and paying online while looking for location number which is not highlighted anywhere on the machine, I was perfectly within scope of the MINIMUM grace period of entering into the car park, observing signs, queuing to pay and then ending up paying online.

Moreover there no clear signs board saying you been monitored and you exact entry even in seconds and exit is counted towards the ticket. No definition on “Insufficient time”.
The conclusion is few minutes either side all told in this particular badly-maintained car park must not generate a penalty against drivers who leave as soon as they can, waiting to drive past parked cars and giving way to arriving cars, and out onto the busy road.
Thus I contend that the PCN was not fairly or properly given.

3. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.
The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.


Paragraph 21.1 of the BPA 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.
ParkingEye’s signs do not comply with these requirements because these car park signage failed to accurately explain 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.
The ParkingEye’s main sign in the Tower Road car park (see Figure) states:
“Car park monitored by ANPR systems”

Specifically missing from this sentence (or otherwise illegible, buried in small print) are the vital information that these camera images would be used in order to issue Parking Charge Notices by capturing images of vehicles’ number plates, calculating length of stay between entry and exit in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices.
The only reference to Parking Charge Notices on Parking Eye’s sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras.
Any reasonable driver would believe that the parking time would begin from the time on the ticket printed when parking was purchased by the driver.

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.
Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator 'fails to identify its commercial intent':

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.''

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

''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.''
Below is the picture of rules and camera, hardly visible while you are driving in


So, a letter height of just half an inch, placed high on a wall or pole, 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 & height, you would have to stand right in front of it and still need a magnifying glass, to be able to read any terms.


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, not as I have shown in day light) how their signs appeared on that date, at that time, from the angle of my perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat - and at BOTH P&D machines - 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.

5. 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

Non-Business


6. The charge is a penalty, breaches the CRA & is not served with in POFA 2012
This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines. 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 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.




'' Clearly a charge out of all proportion to the tariff - is an unfair penalty to the mind of any reasonable man, for taken few minutes to park, get out of the car, observe the signs and pay for the parking or staying few minutes extra after the parking time ended to leave the car park in safe to drive car and letting the road clear first before drive out of the space(s). 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'. The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - 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'.
Separately, I find the PCN was issued after 30 days of incident which brings POFA 2012 in this case.
I therefore request that POPLA uphold my appeal and cancel this PCN.

Registered Keeper

KeithP

Is the NtK capable of holding the keeper liable?

If not, your wife should include that point in her appeal and also include "the operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge" point too.

Umkomaas

Clearly a charge out of all proportion to the tariff - is an unfair penalty to the mind of any reasonable man, for taken few minutes to park, get out of the car, observe the signs and pay for the parking or staying few minutes extra after the parking time ended to leave the car park in safe to drive car and letting the road clear first before drive out of the space(s). 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'. The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - 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'.

Sadly not supported by the Supreme Court in the Beavis case, and POPLA will definitely toe the party line. It's enough for them to reject the entire appeal just by having this opportunity for them to do so. You cannot possibly sway them on this, and you risk so much.

Separately, I find the PCN was issued after 30 days of incident which brings POFA 2012 in this case.

But surely this is your strongest suit, yet it's tucked away as a one-line throwaway at the end of your appeal. This must be expanded and moved up the batting order to appeal point number one. This alone should be enough for POPLA to find in your favour.

The above advice only holds good if the driver has not been directly or indirectly identified to the parking company. You seem to have studiously avoided responding fully to this all-important point raised by two separate regulars in posts #2 & 3.

Dkgarg

Thanks for the reply. Sorry am not sure what is ntp means

KeithP

Dkgarg wrote: »

Thanks for the reply. Sorry am not sure what is ntp means

Neither am I.

Did you perhaps mean NtK?

Post #5 of the NEWBIES FAQ sticky thread lists many commonly used acronyms.

But to help: NtK = Notice to Keeper.