POPLA Appeal - ParkingEye PCN 11 minutes "overstay"

wiwan31

MistyZ said:

Where that sign is situated, how prominently displayed it is, how high off the ground it is etc. is anybody's guess.
 
That photo was taken so close to the sign, in good light conditions.  It is not disingenuous of you to refuse to show the signage in such a misleading way.  Parking Eye will probably show such photos in their evidence, if it comes to that.  But it doesn't matter, your job is to anticipate that and counter such 'evidence' in advance.

Coupon-mad said:

You can certainly use your words because your general photos of the car park do not show lots of conspicuous signs!

Thank you both, makes sense. I'll submit my appeal and let you know the outcome.

wiwan31

Please see below the evidence pack sent by Parking Eye in response to my POPLA appeal:

Case History

23/09/2020Date of eventSystem check/manual check identified breach of terms and conditions, prior to DVLA request

25/09/2020Request queued to DVLA for keeper details

26/09/2020DVLA response received -Success (Legislation Used: POFA_POPLA -Issued To: Keeper)

26/09/2020Parking Charge Letter Issued -Letter1 -Ltr01-21730/09/2020Letter Issued -Website Appeal Response

30/09/2020Letter Issued -Website Appeal Response

30/09/2020Website Appeal received for this case and is queued for processing.

30/09/2020Website Appeal received for this case and is queued for processing.

08/10/2020Letter Issued -Unsuccessful POPLA PP Insufficient

Rules and Conditions

This site is a Paid Parking car park as clearly stated on the signage (enclosed). We have included a signage plan showing that there are signs situated at the entrance, exit and throughout the car park displaying the terms and conditions of the site.All available payment options can be found within the enclosed signage. The full, correct vehicle registration must be inputted when parking payments are made.

Authority

We can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ourselves and the motorist will be enforceable by us as a party to that contract.

Additional Information

The BPA Code of Practice Version 8 –January 2020 has provided clarity to both motorists and parking management companies regarding grace periods. Version 8, 13.1 states that parking operators must provide motoristsa ‘consideration period’ before entering into the parking contract to allow motorists to consider the terms of the parking contract and leave the car park should they not wish to be bound by the terms & conditions. The amount of time in these instances will vary dependant on the size and type but it must be a minimum of 5 minutes. Once this time is overstayed the motorist is deemed to have accepted the terms & conditions and therefore bound by the terms & conditions of parking. 13.2 clearly states that once a parking event takes place, i.e. the terms & conditions of parking are breached, the consideration period discussed in 13.1 no longer applies. The grace period discussed in 13.3 refers to the time that parking operators must add to theend of a parking event before a Parking Charge Notice is issued, and the Code of Practice outlines this as a minimum of 10 minutes. 13.4 also clarifies that unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for a specific users e.g. Blue Badge holders, pick up/drop off or where parking is prohibited such as hatched areas in front of emergency exits, or on entry and exit ramps etc. There is no grace period applicable in such areas discussed above.

The signage on site clearly sets out the terms and conditions and states that;

""By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditionsand are authorised to park, only if you follow these terms and conditions""""If you fail to comply, you accept liability to pay the fee for unauthorised parking""

All signs that pertain to the general terms and conditions of parking contain text which explains that, “[...] by entering this private car park, you [each motorist] consent, for the purpose of car park management, to: the capturing of photographs of the vehicle and registration by the ANPR cameras [...] and to the processing of this data [...]”. Inturn, consent is also provided so as to allow us to make a request for registered keeper from the DVLA “where the Parking Contract is not adhered to”. The wording used clearly details that the Parking Contract in question commences when the motorist “enters” the car park and that the data from the ANPR system will be used to enable us to take enforcement action against those who breach the parking terms and conditions in operation.

We operate a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose and are fully compliant with the BPA code of practice.

You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss, or that it is extravagant, unfair or unreasonable. In this regard, we rely upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67, which was found in ParkingEye’s favour and concerned the value of our Parking Charges.

The Supreme Court considered the Defendant’s submissions that the Parking Charge should be considered to be penal and unfair, but the Justices supported the findings of the lower courts, where thecharge was found to be neither ‘extravagant’ nor ‘unconscionable’.

In terms of the amount of the Parking Charge, this Judgment, along with the British Parking Association Code of Practice at paragraph 19.5, support the level of Charge issued by ParkingEye, and the Justices note that, “The charge is less than the maximum above which members of the BPA must justify their charges under their code of practice”.

Lord Hodge states that, “...local authority practice, the BPA guidance, and also the evidence that it is common practice in the United Kingdom to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85, support the view that such a charge was not manifestly excessive [...] the fact that motorists entering the carpark were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.”

We submit that this Judgment provides clarity and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.

Please find enclosed document showing that on the date of the parking event we had authority to issue and pursue a Parking Charge to this vehicle.

wiwan31

zhonguonuren said:

This is so disgusting it makes me 😡 
I went to the car park for another poster and know exactly what you are saying is true.  I cannot imagine any judge will upheld this scam.  Follow the regulars advice to get this PCN cancelled and then come back and we can talk about a letter before claim for beach of GDPR.

Meanwhile definitely request a copy of the landowner agreement (I doubt you’ll get it but keep asking!).  It is useful to you to see if it is compliant plus I am very interested in this piece of land and how it was transferred.  

Hope it hasn’t put you off visiting Cornwall.  All the best Zhong

To your question, please see the landowner agreement they provided above.

wiwan31

Based on the evidence sent, below are the items I was going to raise in the Comments box of the POPLA portal. As the number of characters is limited to 2000, I wanted to make sure I'd captured the key main points, before finalising and submitting. Would you mind reviewing and confirming that I've captured the main points please?

1. Articles 13.1 and 13.2 of the BPA Code of Practice are both ambiguous and unfair under the Consumer Rights Act 2015 and are therefore unlawful. They are in contadiction of the PAS232 BSI Government Draft
2. The Operator did not uphold the Grace Period set out in the BPA Code of Practiceand is therefore not compliant
   
3. The photographic evidence provided was taken on18/06/2020 and not at the time of parking on 23/09/2020. This does not prove the signage was present on 23/09/2020.
   
4. Signage shown on Photograph 1 and Page 4 of 5 of Parking Plan is inappropriate: it does not mention the charge at all and does not provide sufficient information for a driver to understand the terms and conditions of parking
   
5. The Signage Plan is indeed a "plan". It states "Sign to be installed...", but does not prove that the signs were effectively installed.

Coupon-mad

I'd reiterate why a mere 9 minutes taken after driving in, parking, locking the car and walking over to read the signs and realising it was 'coin only' then having to download an app (? or pay on a website...whatever it was) and paying for parking online, was reasonable given the unusual circumstances of a ParkingEye car park not offering payment by card.  This is precisely why the consideration period in the BPA CoP is a 'minimum' not a maximum and the specific circumstances must be taken into account.  Also, driving past the exit camera just 2 minutes after the parking period had ended is certainly reasonable conduct by the driver, and not a breach.

wiwan31

There are a few other elements that I'm unsure if I should include or not. Would you mind taking a look at those also please?

• Parking Eye uploaded 4 evidence documents to the POPLA site. From what I can tell, they are all the exact same and seem to be copies of each other. I'm just wondering if I could say that they are confusing matters, by providing unclear evidence?
• With regards to landowners authority, the document is very poor in quality and only just legible. It also states that the "Operator had/has authority to issue Parking Charges for the Parking Event dates that include but, are not limited to, the period 24 March 2020 - 24 September 2020". And it is signed on 24/9/2020, so just one day after te actual date I parked there on 23/09/2020. I find a bit odd and wondering if I have any grounds to claim that they're trying to tamper with evidence?
• They also mention: "You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss, or that it is extravagant, unfair or unreasonable. In this regard, we rely upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67, which was found in ParkingEye’s favour and concerned the value of our Parking Charges." The thing is I never mentioned in my appeal that I believed the amount was a "pre-estimation of loss, or that it is extravagant, unfair or unreasonable". I did reference the ParkingEye vs. Beavis case, but to say that in this case the signage was unsually clear and, in that sense, bears no ressemblance with the current case. Could I claim that they're trying to "put words in my mouth" and confuse matters further?

Finally, is there perhaps something I'm missing here and that I should be mentioning in my comments?

Thank you very much in advance.

Coupon-mad

I would not add anything.

The above other elements add nothing and it's best to try to remind the Assessor why it took 9 minutes this time, to pay.

nosferatu1001

As above.
You must must must point out the sequence of events is clear that the MINIMUM in the CoP is just that, and the MIN is not appropriate here!

wiwan31

Coupon-mad said:

I would not add anything.
The above other elements add nothing and it's best to try to remind the Assessor why it took 9 minutes this time, to pay.

nosferatu1001 said:

As above.
You must must must point out the sequence of events is clear that the MINIMUM in the CoP is just that, and the MIN is not appropriate here!

Great, thank you for the feedback, I'll press on that point particularly.

Should I still include what I stated about the BPA Code of Practice being ambiguous (like I did in the original appeal)?

Articles 13.1 and 13.2 of the BPA Code of Practice are both ambiguous and unfair under the Consumer Rights Act 2015 and are therefore unlawful. They are in contadiction of the PAS232 BSI Government Draft

Coupon-mad

No, I would just reiterate why it took 9 minute...using the sort of words I suggested, to put the idea in POPLA's mind that this was reasonable (of course it was.  A Judge would find it to be so!).