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Fistral Beach PCN
Roballison
Posts: 7 Forumite
Hi All.
I am another victim of the ANPR at Fistral Beach. I have posted on there forums for assistance and currently build a POPLA appeal against Smart Parking. The story so far
Vehicle Registration Number: *******
PCN Reference TC********
POPLACODE: **********
Issued by Smart Parking Ltd.
I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Ltd in respect of an alleged breach of Parking Terms and Conditions at Fistral Beach Car Park on 23-07-2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
I the registered keeper of vehicle registration ******* and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:
Background information:
The appellants are alleged to have entered onto the Fistral Beach car park, Newquay at 09:16:53 am on 23rd July 2016 as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
At 09:21am a Parking tariff was paid to the value of £5 as per receipt 1 (submitted as evidence). A further payment was made for £2 at 12:27pm to extend parking, receipt 2 (submitted as evidence).Totaling £7
The appellants returned to the vehicle within what they believed was the allotted time purchased for parking and moved from the marked parking bay. Due to the extremely busy car park, they were hindered by traffic and vehicles not parked within the allotted parking bays/marked areas. Appellants allegedly exited car park at 13:34:53pm as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
On 30-07-2016 a Parking Charge Notice was received from Smart Parking Ltd alleging a parking offence on 23-07-2016, a parking charge notice of £100 is due, letter 1(Submitted as evidence). The Parking charge Notice detailed an apparent contravention for an overstay at the car park Fistral Beach car park Newquay.
An appeal to the Operator, Smart Parking Ltd was lodged on 03-08-2016 via their online system. No acknowledgement was received from Smart Parking Ltd for the appeal. An appeal rejection letter was received on 25-08-2016 along with the POPLA appeal code, Letter 2(Submitted as evidence). SMART Parking Ltd refused allow the appeal on the grounds that: “Having checked our payment systems we can confirm a payment was made against vehicle registration ******* for a total duration 240 mins: However the vehicle was on site for 258 mins.” SMART parking Ltd claim in their Letter (submitted in evidence as Letter 2) that this was in excess of the time purchased and no further payments were made.
The appellants state that they are not liable for the parking charge issued by SMART Parking Ltd for the following reasons:
1. The Operator has failed to “acknowledge or reply to the appeal within 14 days of receiving it” are per: BPA code of practice 22.8. “You must acknowledge or reply to the appeal within 14 days of receiving it. If at first, you only acknowledge the appeal, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the appeal in writing”
The appeal rejection letter was dated 23-08-2016 with a postmark date 24-08-2016, and received by the keeper on 26-08-2016. Letter2 with Envelope, submitted as evidence.
2. No evidence or sufficient detail of contravention. The registered keeper cannot make an informed decision based on two photos of a vehicle entering and exiting a car park at different times with no clear explanation of the alleged contravention. The Operator is relying simply on images taken of a vehicle at first entry and then again on exit. These images show no evidence at all of actual parking, waiting or whether a vehicle remained in the car park for the duration or indeed as might have happened, exited and then returned within the recorded timescale. Image 1 (submitted as evidence) clearly shows double lines at the curb edge. The only markings relevant to this are outside the Fistral Beach car park area on the public highway and therefore the vehicle ******* has not entered the car park on the photo (Image 1, submitted as evidence) from Smart Parking Ltd ANPR system. The timing of entry is therefore not as the ANPR system indicates and cannot be used as a basis of entry into the site. For reference (Image 2, submitted as evidence), shows the entrance to Fistral Beach car park, viewed from the ANPR camera area. The double line at the curb edge have been arrowed for comparison to Image 1. The exit time also cannot be confirmed from the ANPR Image 1, as there is no reference as to the vehicles location. If as per the entry image, the vehicle is outside the car park the ANPR times are incorrect and the total time for the vehicle on the site that Smart Parking Ltd claim is also incorrect.
3. The ANPR system is neither reliable nor accurate
The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Smart Parking Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of supposedly entering and leaving Fistral Beach Car Park, it is vital that Smart Parking Ltd produces evidence in response to these points.
In addition to showing their maintenance records, I require Smart Parking Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle activating the system, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Smart Parking Ltd to strict proof to the contrary.
Further to this I also require Smart Parking Ltd to provide evidence that there is planning permission for the ANPR cameras used in this notice. It is a criminal offence to obtain data using illegal equipment
I am another victim of the ANPR at Fistral Beach. I have posted on there forums for assistance and currently build a POPLA appeal against Smart Parking. The story so far
Vehicle Registration Number: *******
PCN Reference TC********
POPLACODE: **********
Issued by Smart Parking Ltd.
I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Ltd in respect of an alleged breach of Parking Terms and Conditions at Fistral Beach Car Park on 23-07-2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
I the registered keeper of vehicle registration ******* and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:
Background information:
The appellants are alleged to have entered onto the Fistral Beach car park, Newquay at 09:16:53 am on 23rd July 2016 as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
At 09:21am a Parking tariff was paid to the value of £5 as per receipt 1 (submitted as evidence). A further payment was made for £2 at 12:27pm to extend parking, receipt 2 (submitted as evidence).Totaling £7
The appellants returned to the vehicle within what they believed was the allotted time purchased for parking and moved from the marked parking bay. Due to the extremely busy car park, they were hindered by traffic and vehicles not parked within the allotted parking bays/marked areas. Appellants allegedly exited car park at 13:34:53pm as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
On 30-07-2016 a Parking Charge Notice was received from Smart Parking Ltd alleging a parking offence on 23-07-2016, a parking charge notice of £100 is due, letter 1(Submitted as evidence). The Parking charge Notice detailed an apparent contravention for an overstay at the car park Fistral Beach car park Newquay.
An appeal to the Operator, Smart Parking Ltd was lodged on 03-08-2016 via their online system. No acknowledgement was received from Smart Parking Ltd for the appeal. An appeal rejection letter was received on 25-08-2016 along with the POPLA appeal code, Letter 2(Submitted as evidence). SMART Parking Ltd refused allow the appeal on the grounds that: “Having checked our payment systems we can confirm a payment was made against vehicle registration ******* for a total duration 240 mins: However the vehicle was on site for 258 mins.” SMART parking Ltd claim in their Letter (submitted in evidence as Letter 2) that this was in excess of the time purchased and no further payments were made.
The appellants state that they are not liable for the parking charge issued by SMART Parking Ltd for the following reasons:
1. The Operator has failed to “acknowledge or reply to the appeal within 14 days of receiving it” are per: BPA code of practice 22.8. “You must acknowledge or reply to the appeal within 14 days of receiving it. If at first, you only acknowledge the appeal, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the appeal in writing”
The appeal rejection letter was dated 23-08-2016 with a postmark date 24-08-2016, and received by the keeper on 26-08-2016. Letter2 with Envelope, submitted as evidence.
2. No evidence or sufficient detail of contravention. The registered keeper cannot make an informed decision based on two photos of a vehicle entering and exiting a car park at different times with no clear explanation of the alleged contravention. The Operator is relying simply on images taken of a vehicle at first entry and then again on exit. These images show no evidence at all of actual parking, waiting or whether a vehicle remained in the car park for the duration or indeed as might have happened, exited and then returned within the recorded timescale. Image 1 (submitted as evidence) clearly shows double lines at the curb edge. The only markings relevant to this are outside the Fistral Beach car park area on the public highway and therefore the vehicle ******* has not entered the car park on the photo (Image 1, submitted as evidence) from Smart Parking Ltd ANPR system. The timing of entry is therefore not as the ANPR system indicates and cannot be used as a basis of entry into the site. For reference (Image 2, submitted as evidence), shows the entrance to Fistral Beach car park, viewed from the ANPR camera area. The double line at the curb edge have been arrowed for comparison to Image 1. The exit time also cannot be confirmed from the ANPR Image 1, as there is no reference as to the vehicles location. If as per the entry image, the vehicle is outside the car park the ANPR times are incorrect and the total time for the vehicle on the site that Smart Parking Ltd claim is also incorrect.
3. The ANPR system is neither reliable nor accurate
The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Smart Parking Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of supposedly entering and leaving Fistral Beach Car Park, it is vital that Smart Parking Ltd produces evidence in response to these points.
In addition to showing their maintenance records, I require Smart Parking Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle activating the system, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Smart Parking Ltd to strict proof to the contrary.
Further to this I also require Smart Parking Ltd to provide evidence that there is planning permission for the ANPR cameras used in this notice. It is a criminal offence to obtain data using illegal equipment
0
Comments
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4. Smart Parking Ltd does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
I question Smart Parking Ltd authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Smart Parking Ltd legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own Fistral Beach or its car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles in the car park, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Smart Parking Ltd is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Smart Parking Ltd are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“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.''
I put Smart Parking Ltd to strict proof of compliance with all of the above requirements and provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, 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.
So, I contend that the contract - if this operator produces one – provides only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
5. No contract was offered by the Operator as their signage does not comply with BPA Code of Practice. The appellants saw no adequately sized signage whilst driving into the car park. The driver was focused solely on controlling the vehicle’s speed and direction whilst observing both pedestrians and potential hazards (as advised by the Highway Code and fundamental to passing all UK driving theory and practical tests.) Any passengers were either unable to see any signs from their position in vehicle or due to their age could not read. Signs in the car park fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance to the car park. Thus the necessary elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking and not formed after the vehicle has already been parked.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the
question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver entered but was obvious when paying for parking at the end, and where the plaintiff had parked often before.
He said: “He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.” In addition, to suggest a breach of contract, SMART Parking Ltd is required to prove that the driver actually saw, read and accepted the terms, which they cannot do. The driver insists they saw no signs detailing these terms.
To comply with contract law and the BPA Code of Practice, SMART parking are required to use clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park, if they wish to try to establish a contract requiring payment in exchange for a parking space. See Image 3 pay machine used by the appellants during their visit. The signage states “Please see full terms and condition signage”. Yet no terms and condition signage are easily or clearly visible. This google street view image will show the 360 degree view from the pay machine, although from a high view point. https: //goo.gl/maps /b78aMmrtvwr Please use this view show that it was not possible for the appellants to find the terms and condition signage. Images on google are 12 months old but still relevant as no changes have been made to the site, Image 3 was taken in august 2016
It is argued that there was no contract between SMART Parking Ltd and the appellants. If there had been a contract then it is suggested this contract would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999 Terms:
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. ''Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation."
On the basis of all the points raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999 and basic contract law.0 -
well I would have put up the photos but forum will not let me0
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You paid £7.00 to park on a a beach in Cornwall? Complain to the Tourist Board. Greedy car parks must be costing this town £££££s.
Read this, time finding a parking space and leaving the car parfk is not parking says a judge, that should give you those extra minutes.
http://www.cornishguardian.co.uk/couple-win-parking-fight/story-20849706-detail/story.htmlYou never know how far you can go until you go too far.0 -
Roballison wrote: »well I would have put up the photos but forum will not let me
Yes it will if you change http to hxxp.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Check my latest vid.
If you need photis join "Newer Newquay" on FAcebook. I've posted some from 31/8/16
Also check out PE vs Miss X on Parking Pranksters page. Full transcript is there.vIllegitimi non carborundum:)0 -
I have the photos needed already from some very helpful people on FB
I have added the photo address as best i can. Cant get them to show on this forum ????
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/image1_zpsuqecitnn.jpg
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/Image2_zpsdqkdgbid.jpg
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/image3_zpsbjnjicrk.jpg
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/Letter1_zpsgnm5iw8b.jpg
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/letter2_zpslujkq8pv.jpg
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/Receipt1_zpst3kuxd32.jpg
hxxp://img.photobucket.com/albums/v232/robrs2/Misc/Receipt2_zpsoa2tlcnn.jpg0 -
http://img.photobucket.com/albums/v232/robrs2/Misc/image1_zpsuqecitnn.jpg
http://img.photobucket.com/albums/v232/robrs2/Misc/Image2_zpsdqkdgbid.jpg
http://img.photobucket.com/albums/v232/robrs2/Misc/image3_zpsbjnjicrk.jpg
http://img.photobucket.com/albums/v232/robrs2/Misc/Letter1_zpsgnm5iw8b.jpg
http://img.photobucket.com/albums/v232/robrs2/Misc/letter2_zpslujkq8pv.jpg
http://img.photobucket.com/albums/v232/robrs2/Misc/Receipt1_zpst3kuxd32.jpg
http://img.photobucket.com/albums/v232/robrs2/Misc/Receipt2_zpsoa2tlcnn.jpg
Clicky links. - not checked that they work though.0 -
I can't get the links to work.
But your POPLA appeal is missing the points about the POFA/no keeper liability, and the new POPLA appeal point as posted the other day in 'POPLA Decisions' shoving it in POPLA's faces that (paraphrasing) there is no evidence that the individual the operator is pursuing for the charge is the person who can be held liable (driver only).
Go to POPLA Decisions, the sticky thread at the top and read the last couple of posts, the one about ParkingEye with point 1 and 2 that you need to use/edit/adapt for your case. I hope your first appeal did NOT identify the driver?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
The links work fine for me, but the OP should be careful about all the other pictures that can be viewed as well, especially ones where VRNs of other vehicles can be seen. I hope the cut hand heals properly.
I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Looking at the first linked image; the photo of vehicle is actually taken outside the car park when the vehicle was still on the public highway, (and certainly well before any terms and conditions can be read).0
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