Tower Road Newquay PCN issued

Dkgarg

I will remove beavis reference and add Pofa 2012as the 1 st point.
Though my wife was not driving the car, still pCn is issue to my wife so it’s sure they have not identified the driver. Just sent based on registered keeper of the car

KeithP

Please edit you most recent post to remove clues to the driver's identity.

Of course the NtK was sent to your wife - as she is the Registered Keeper.

Dkgarg

Hi Apologies for the typo. I mean Ntk.
My wife is the registered keeper but was not the driver at during the Newquay episode. So not sure how I use this to make a impact. Bit confused.

Dkgarg

Trying to edit but edit is disabled.

KeithP

It is your wife, as the Registered Keeper who has received the PCN.

It is your wife, as the recipient of the PCN, who should appeal the PCN.

The draft PoPLA appeal you have shown us appears to have been written from the viewpoint of the driver.

You have said you intend to use POFA.

POFA offers some protection to the keeper - it offers nothing to the driver.

If you want to use POFA to show that the PPC has no case, then it is extremely important that the keeper makes this PoPLA appeal.

It is also extremely important that clues to the driver's identity are not revealed in your posts here or in the appeal.

The Private Parking Companies trawl this forum just waiting for people to trip themselves up and can use you posts against you.

Please read read this from post #1 of the NEWBIES FAQ sticky thread:

- this is why not to name the driver (thanks to The Slithy Tove for this explanation):

https://forums.moneysavingexpert.com/discussion/comment/69906180#Comment_69906180

Dkgarg

Hi KeithP and Umkomaas

Thanks for your input. Really Appreciate. Based on your valuable inputs I have edited apeal content as below

POPLA Appeal
Vehicle Registration Number:XXXXXX
PCN Reference: XXXXXXXX
POPLA ref:XXXXXXXXXXX
Issuer: ParkingEye

Dear POPLA Adjudicator,

I, received a PCN letter on 29th Sept. My appeal to ParkingEye was rejected via an email.
I am the usual keeper and I wish to appeal this charge on the following grounds:
1. No mention of valid ticket was paid for the parking
2. Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
3. The minimum grace period was not allowed by the operator.
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
5. The charge is punitive and out of proportion with the 16-minute infraction.

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.


2. Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations. There will be no admissions as to who was driving and no assumptions can be drawn. It took more than 30 days to issue Notice. It doesn’t matter why NTK is delayed. Notice to keeper is not complaint with schedule 4 of the protection of freedoms act 2012 thus you can cannot pursue me as the keeper. You must therefore cancel the charge.

2. No grace period allowed/applied – BPA Code of Practice – non-compliance
The charge that was levied is unreasonable for overstaying in the car park. PE state that the vehicle stated above entered the premises at 14:11 and departed at 17:38 and have levied a fine of £100.
The driver was accompanied by a young child aged 4 and Pregnant partner. It is very difficult to organise them, and the time from which the car was parked and vacated was far later than the time car entered the premises. There was no signage that states that the clock is ticking from the moment your car enters the site.
There was no ticketing system or automatic sign to show the time by which car had to leave the premises. Tower Road car just warns “Don’t overstay” though no definition what grave period is, if ANPR is used, no information on what time the car actually entered the car park at the time of ticket so that driver can pay for all the time.
British Parking Association code of practice (BPA CoP) states:
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is
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.
“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 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

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.
“In an ANPR controlled car park where no statement on the signs indicates that the parking period begins on entry to the car park, as opposed to when a vehicle parks, we may discount the amount of time between entry and parking when calculating the grace period at the end of the contract. This is because the average motorist would assume that a period of parking begins when they park the vehicle, and not when they enter the car park.”



Grace periods are not even mentioned on the signs at Car Park and the signs do seem to indicate that the period of parking begins when the vehicle is parked. So, for this appeal, I put this operator to strict proof of how long my car was actually parked for, and for them to state their policy on grace periods and how these are communicated.
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 which is unfair and contrary to the BPA stated policy.
Although no mention is made of any ticket purchase on the PCN


On the day in question the ticket machine was out of order, and had no other option to call or use mobile app. And it takes time to get a parking bay on Bank Holiday, observer signs and arrange right amount of coins and then if found that machine not working then download the app, create account and pay.
The conclusion is few minutes either side 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 Lack of standing/authority from landowner
ParkingEye has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ParkingEye to strict proof of the contract terms with the actual landowner (not a lessee or agent). ParkingEye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that ParkingEye are entitled to pursue these charges in their own right.
I require ParkingEye to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for ParkingEye merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
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. No Genuine Pre Estimate of Loss.
The car park had the majority of its spaces vacant while the car was leaving the cark park. My car was not preventing any other users of the shops and facilities from parking and the fee of £100 is a penalty rather than any attempt to recoup losses caused by my car’s extended presence. The charge for a breach of contract must be based on a genuine pre-estimate of losses caused.
The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.
The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be or proved to be a genuine pre estimate of loss.

'' 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. 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'.
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

Redx

it isnt "your" notice, as popla didnt issue it, its the OPERATOR`s notice

and the not a gpeol argument died a death 2 years ago with the loss of the BARRY BEAVIS case, in his case against PE as well, so no chance there

so unless you can prove that its a penalty , then that argument is as dead as a dodo


no signage section at all


incorrect numbering too

Dkgarg

Hi Reds

Thanks for your comments
I have modified “yours” to ParkingEye
Removed Gpeol point and keep 4 points only
Updated Numbering as well
I do have pictures but didn’t add in post. I will create a pdf which show pictures of PcN, and parking location and rules mentioned.

Please suggest me if anything needs to do

Dkgarg

Below is the link to apeal draft

https://docdro.id/jK8QJDm