Fistral Beach POPLA appeal

kml

Hi,

Firstly, thank you to the folks who set up a great Newbies page & lots of links to appeals. I've been able to do the first stages of this independently which is fab.

Brief summary:
Parked at Fistral Beach during May school holidays, overstayed by 22 mins and 8 seconds according to ANPR, got a NtK in the mail within required 14 working days.
Sent "Initial Parking" (seems these are a new player, used to be Smart Parking there) the pro-forma appeal response kindly provided in Newbies page & got POPLA code.

Am formulating my appeal, but am stuck with regards to pictures of signs. I live 6 hours drive from Cornwall & the signs on googlemaps are from May 2018 when Smart Parking still had the site.

Is there anyone who lives in the Fistral Beach area who could take some pics of the signs at the entrance and the ones near the payment machine? Otherwise i think I will have to just appeal on the basis of:
- Grace Periods & congestion
- No Landowner Authority
- No evidence of period parked (PoFA 2012)
- Vehicle images in NtK don't meet BPA Code of Practice
- No planning permission for signs & ANPR camera

Not sure whether to add something on disproportionate losses (saw this in one of the appeals on the sticky thread) as parking becomes free from 6pm and Exit Time according to ANPR is 17:48:06 - therefore a max £1.50 of revenue was lost due to alleged "overstay" - £100 fine being disproportional to that?

Many thanks!!

Redx

BEAVIS killed off the "losses" aspect a few years ago, which is why you wont find it


post on the facebook group for Newquay to get signage etc, its always a hot topic

MistyZ

Grace Periods with reference to congestion - certainly. I'd imagine the place was heaving at that time of year so be as accurate as possible about length of time required to find a space and exit car park. Definitely include 'No Landowner Authority' too.

The disproportionate loss point no longer has legs since the Barry Beavis case.

The old Smart Parking signs were very sparsely place from a quick trip via Google, can you recall if Initial Parking's signs were also thin on the ground?

Did the wording on the NTK comply with POFA?

There's been a lot of advice on here recently about splitting the Grace Periods in two as in post 15 on this thread:
https://forums.moneysavingexpert.com/discussion/comment/75812666#Comment_75812666

Castle

kml wrote: »

Hi,

Firstly, thank you to the folks who set up a great Newbies page & lots of links to appeals. I've been able to do the first stages of this independently which is fab.

Brief summary:
Parked at Fistral Beach during May school holidays, overstayed by 22 mins and 8 seconds according to ANPR, got a NtK in the mail within required 14 working days.

It's 14 days, (so it will include weekends and bank holidays).

Redx

as above , its not working days , its by day 15 following the event , where event day is day zero

it must arrive at the keepers address by day 15 (forget about "working days" , no idea where you got that idea from, I have never seen the term "working" in regards to these matters)

so by day 15 following the parking event , count the days and report back

Coupon-mad

Argue clearly that it took 13/14 minutes to drive in, queue, find a space, park and use the method the driver did, to pay (and explain why it took 13/14 minutes, in detail) and then that leaves under 10 minutes to leave, which is under the minimum the BPA insist must be allowed.

Show us your draft.

overstayed by 22 mins

And that phrase will NOT feature at all, in your POPLA appeal.

The period of 22 minutes WILL NOT be said by you!

kml

Thanks for the replies. I'll post on newquay FB page, great idea.

I've removed any mention of overstay, and unfortunately notice is within 15 days (28/5-10/6). Wording on the NtK is solid :-(

Not sure how to describe entry and exit in detail without giving away who was driving. Do i just describe and and use words like "the driver" and "vehicle XX00 XXX"?

Due to lack of change I paid using their app (JustPark) so have done a SAR to find out what information they hold. I'm assuming they have the duration paid from the app (15:32 - 17:32) and they are comparing this to ANPR of 15:25:58 and 17:48:06. So 7 mins at the start and 16 minutes at the end.

---

POPLA Verification Code: XXXXX
Vehicle Registration: XXXXX

I, the registered keeper of this vehicle, received a letter dated 10/06/2019 acting as a notice to the registered keeper. My appeal to the Operator – Initial Parking – was submitted and acknowledged by the Operator on 12/06/2019 and rejected via an email dated 13/06/2019. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. Grace Period: BPA Code of Practice – non-compliance
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
6. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

 
1. Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start (of a minimum of 10 minutes).

BPA’s Code of Practice (13.2) states that:
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”

BPA’s Code of Practice (13.4) states that:
“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.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“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.”

“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.”

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: there is a link here to the source, the forum won't let me include it as a new user)

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account.

It is therefore argued that the duration in question (which Initial Parking claim was 22 minutes and 8 seconds above the 2 hours paid) is not an unreasonable grace period, given:

a) During school holidays the site is known for being extremely busy, with long delays on entry and exit as cars maneuver past one another along the long carpark. Below is a satellite image of the site, clearly showing the narrow entrance and exit point, and long length of carpark

<satellite picture from googlemaps marked up with length of carpark & narrow entry/exit)
Figure 1: Fistral Beach carpark layout

b) The lack of sufficient signage throughout the car park in question (non- compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
c) The lengthiness of Initial Parking’s signage (in terms of word count)
All factors discussed above serve merely to increase the time taken to:

• Locate a sign containing the terms and conditions.

• Read the full terms and conditions

• Purchase a ticket



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

In cases with a keeper appellant, yet no POFA '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 keeper 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 NTK.

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 Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

Initial Parking’s Appeal Letter states: “Fistral Beach, Newquay is private land and is subject to a parking management scheme put in place by the operator at the landowner’s request.”

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 to support the statement above. 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 Code of Practice) 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 Code of Practice 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.


4. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract and/or queuing to exit the carpark.

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Initial Parking’s NtK simply claims “Location: Fistral Beach, Newquay”

The NtK separately states “Entry Details: 28/05/2019 at 15:25:58” and “Exit Details: 28/05/2019 at 17:48:06”. At no stage do Initial Parking explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

Initial Parking’s Appeal Reply states “You were onsite for 2 hours, 22 minutes and 8 seconds.” It is not in the gift of Initial Parking to substitute “entry/exit” or “onsite” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

Initial Parking’s Appeal Reply also states “The terms and conditions of the scheme at this location state that a valid payment must be made for the length of time the vehicle is parked on site. On 28/05/2019, the vehicle was parked without this payment being made. This was a breach of these terms and conditions.”

By virtue of the nature of an ANPR system recording only entry and exit times, Initial Parking are not able to definitively state the period of parking.

I require Initial Parking to provide evidence to show the vehicle in question was parked on the date/time (for a duration in excess of the 2 hour payment) and at the location stated in the NtK.


5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The PCN in question contains two close-up images of the vehicle number plate and two pictures of the front and rear of the car. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the header of the letter above (but not legibly part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Initial Parking Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

<picture from PCN will be here>

Figure 2: Images from PCN - NtK



6. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

Initial Parking do not have Planning Permission for pole-mounted ANPR cameras; upon searching the Cornwall Council’s planning database there are no applications recorded.

Therefore Initial Parking are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

I request Initial Parking provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (28/05/2019).

Redx

the grace period section should not just be a copy and paste of the BPA CoP, it should state the 2 periods , one before and one after , stating why the second one is greater than 10 minutes ( traffic jams and queues and congestion etc causing an extra 6 minutes before the vehicle could pass the exit camera)

etc

ie:- explain it in words of one syllable that even a child could understand, dont just copy and paste and hope the assessor can add up

it is not an overstay of 22 minutes , it is two grace periods that are explained by the narrow roads, congestion , waiting for space , and queues at departure time causing a build up of traffic to leave on a very busy day

Castle

kml wrote: »

Thanks for the replies. I'll post on newquay FB page, great idea.

I've removed any mention of overstay, and unfortunately notice is within 15 days (28/5-10/6).

If the NTK was dated the 10th June 2019 then it is deemed to had arrived two working days later on 12th June; which is the 15th day after the 28th May parking event. Therefore it's a day late and fails POFA.

The_Centurion

Hey all.

I think I've coincidentally found the perfect thread, as I am having precisely the same issue as that described above!

Went to the Initial Parking place at Fistral. Was there every day for a week and have received a Parking Charge Notice identical to the one displayed in this thread, for the stay on the final day.

My catch 22 is that mine was also an overstay (17mins) but the car park may have been incredibly quiet! No congestion issue. Funnily enough we returned to the car in plenty of time, but were about to have a 6 and a half hour drive back to Lincolnshire so messed about making sure everything was comfortable and good to go (including some quick food whilst sat in the car).

Payment was via the telephone/automated option.

What are peoples thoughts? Still contest? My worry is that the contesting argument is quite vague (even if the damn car parking scheme is excessively over the top!).

Regards

Fruitcake

The_Centurion wrote: »

Hey all.

I think I've coincidentally found the perfect thread, as I am having precisely the same issue as that described above!

Went to the Initial Parking place at Fistral. Was there every day for a week and have received a Parking Charge Notice identical to the one displayed in this thread, for the stay on the final day.

My catch 22 is that mine was also an overstay (17mins) but the car park may have been incredibly quiet! No congestion issue. Funnily enough we returned to the car in plenty of time, but were about to have a 6 and a half hour drive back to Lincolnshire so messed about making sure everything was comfortable and good to go (including some quick food whilst sat in the car).

Payment was via the telephone/automated option.

What are peoples thoughts? Still contest? My worry is that the contesting argument is quite vague (even if the damn car parking scheme is excessively over the top!).

Regards

Read the sticky thread for NEWBIES. Contest by sending the initial appeal template in blue from the sticky thread in blue you will find there.
Start your own thread if you need more information.