Fistral Beach POPLA appeal

Guybrush01

Hi Centurion. I sent the newbie template to these jokers initial on the basis that quite a few on here had it successfully appealed. Im guessing they are wise to this now and are testing covering themselves as my appeal sent a few days ago was rejected. Just giving you a heads up if that does happen as they will send you a POPLA code then its up to you whether to pursue it further

kml

Hi All,

Here is my second draft of the appeal. Many thanks for comments on first draft, have incorporated all of them (I hope). Would welcome any more feedback. Many thanks!

I tried to get pics of signs from Newquay FB group but no luck. As such, I haven't included anything about poor signage.

---

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. Notice to Keeper Sent by Post Fails POFA
2. Grace Period: BPA Code of Practice – non-compliance
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
4. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
6. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
7. The ANPR System is Neither Reliable nor Accurate
8. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
 
1. Notice to Keeper Sent by Post Fails POFA

POFA 2012 Schedule 4 (paragraph 9, sub-paragraphs 4b & 5) states that a Notice to Keeper must arrive at the Keeper’s address within 14 days after the period of parking ended.
The Notice to Keeper was dated the 10th June 2019, however it arrived two working days later on 12th June; which is the 15th day after the 28th May parking event. This is also supported in POFA 2012 Schedule 4 (paragraph 9, sub-paragraph 6) “presumed…to have been delivered…on the second working day after the day on which it is posted.”
Therefore it arrived a day late and fails POFA 2012.


2. 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 and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

<link to relevant PDF will be here>

“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. Our 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.”

BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 15:25 and driving out at 17:48 on the same date.

(a) On arrival - the 'observation period':
Upon entering the carpark the driver had to queue and wait to find a free spot and park due to congestion from other vehicles as it was school holidays. An available spot was found at the bottom end of the carpark, farthest away from the entry and exit.

Below is a satellite image of the site, clearly showing the narrow entrance and exit point, and long length of carpark:

<googlemaps image of carpark, marked up to show entry/exit and length of carpark>
Figure 1: Fistral Beach carpark layout

Time was then required to:
a) find the parking signs and read them
b) decide to park
c) download the parking app (as the driver did not have sufficient cash and the parking machines do not accept cards)
d) pay for a ticket via the parking app
I am a witness to this as I was an occupant of the car as well as its keeper. I can assert that this was all done within 6-7 minutes after driving through the entrance to the carpark.

POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 6-7 minutes taken before being able to park and read the signs at this particular site is a reasonable period.

(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''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 (13.4) reiterates this fact: ''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.''

Given the timings shown on the PCN (and subtracting the reasonable time explained above, on arrival) the operator is alleging that the driver exceeded the parking time after the end of the parking event by 16 minutes. This is explained by the long distance from the bottom of the carpark to the exit, and the narrow single entry/exit causing slow queues for the exit due to school holiday congestion. This means that even when a driver gets back to their car on time, they are prevented from leaving immediately due to the queues and restricted space in this site. As I was an occupant of the car I can attest that this was the case on the material date and that the driver did not actually park in a space for more than 2 hours, thus there was no parking contravention at all.

See Figure 1 above, to illustrate my point.

The Operator has displayed on their PCN only the entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated – this will be argued in point 4 below.

As such, 16 minutes is a reasonable grace period to exit the car park after the parking contract has ended due to the reasons outlines above. The parking operator has issued the parking charge notice incorrectly.


3. 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.''


4. 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.


5. 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.


6. 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



7. The ANPR System is Neither Reliable nor Accurate

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 Initial Parking 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 Initial Parking produces evidence in response to these points.

In addition to showing their maintenance records, I require Initial Parking 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 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 Initial Parking to strict proof to the contrary.



8. 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).

kml

Hiya, I need to get the appeal to POPLA by 9th July, so would love some feedback on second draft before then if possible. Thanks in advance!

Redx

seems ok to me but I dont think the last 2 points will sway popla at all, but its your choice if you wish to leave them in , ie:- the longer the better , lol


your earlier points should stand you in good stead at popla

Fruitcake

PoPLA codes last 32 days, so you still have a little time for people to comment if tomorrow is day 28.

Fruitcake

You have covered all the main points, but you could beef up point 2 by adding that driving around looking for a space is not parking as determined in this case from the other Fistral Beach car park.

3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. [STRIKE]The judge also stated that in any case £100 was not likely to be a true pre-estimate of loss.
[/STRIKE]In an important case, the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

I have crossed out the GPEOL point as this is no longer valid since the Beavis case.

Where you have included links, you should embed the actual images so that the assessor is forced to see the.

You could also tweak point 1 a little as follows.

1. Notice to Keeper Sent by Post Fails POFA

For keeper liability to apply, POFA 2012 Schedule 4 (paragraph 9, sub-paragraphs 4b & 5) states that a Notice to Keeper must arrive at the Keeper’s address within 14 days beginning with the day after the period of parking ended.
The Notice to Keeper was dated the 10th June 2019, however it arrived two working days later on 12th June; which is the 15th day after the 28th May parking event. This is also supported in POFA 2012 Schedule 4 (paragraph 9, sub-paragraph 6) and the Interpretation Act 1978 “presumed…to have been delivered…on the second working day after the day on which it is posted”
The Notice to Keeper therefore arrived a day too late for keeper liability to apply and thus and fails the POFA 2012.

kml

Thank you all for the helpful comments, I've incorporated into my final version.

I checked the POPLA code on the Parking Cowboy's checker and it said it expires 10th July, so i'm going to do it tomorrow just to be safe!

Will post (hopefully successful) appeal result when I get it.

Thanks again!!

Redx

also post your final popla draft here too, so that others can use it if they get one

kml

Final draft of appeal that was sent to POPLA. Hope it can be of help to others!

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POPLA Verification Code: xxxxxxx
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. Notice to Keeper Sent by Post: PoFA 2012 – non-compliance
2. Grace Period: BPA Code of Practice – non-compliance
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
4. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
6. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
7. The ANPR System is Neither Reliable nor Accurate
8. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage



1. Notice to Keeper Sent by Post: PoFA 2012 – non-compliance

For keeper liability to apply, POFA 2012 Schedule 4 (paragraph 9, sub-paragraphs 4b & 5) states that a Notice to Keeper must arrive at the Keeper’s address within 14 days beginning with the day after the period of parking ended.

The Notice to Keeper was dated the 10th June 2019, however it arrived two working days later on 12th June; which is the 15th day after the 28th May parking event. This is also supported in POFA 2012 Schedule 4 (paragraph 9, sub-paragraph 6) and the Interpretation Act 1978 “presumed…to have been delivered…on the second working day after the day on which it is posted”

The Notice to Keeper therefore arrived a day too late for keeper liability to apply and thus fails the POFA 2012.

2. 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 and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

<link here as per comments above>
<the screenshot was also pasted into the document here>

“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. Our 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.”

BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 15:25 and driving out at 17:48 on the same date.

(a) On arrival - the 'observation period':
Upon entering the carpark the driver had to queue and wait to find a free spot and park due to congestion from other vehicles as it was school holidays. An available spot was found at the bottom end of the carpark, farthest away from the entry and exit.

Below is a satellite image of the site, clearly showing the narrow entrance and exit point, and long length of carpark:
<googlemaps image here marked up showing entrance/exit and length of carpark>

Figure 1: Fistral Beach carpark layout

Time was then required to:
a) find the parking signs and read them
b) decide to park
c) download the parking app (as the driver did not have sufficient cash and the parking machines do not accept cards)
d) pay for a ticket via the parking app
I am a witness to this as I was an occupant of the car as well as its keeper. I can assert that this was all done within 6-7 minutes after driving through the entrance to the carpark.

POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 6-7 minutes taken before being able to park and read the signs at this particular site is a reasonable period.

(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''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 (13.4) reiterates this fact: ''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.''

Given the timings shown on the PCN (and subtracting the reasonable time explained above, on arrival) Initial Parking is alleging that the driver exceeded the parking time after the end of the parking event by 16 minutes. This is explained by the long distance from the bottom of the carpark to the exit, and the narrow single entry/exit causing slow queues for the exit due to school holiday congestion. This means that even when a driver gets back to their car on time, they are prevented from leaving immediately due to the queues and restricted space in this site. As I was an occupant of the car I can attest that this was the case on the material date and that the driver did not actually park in a space for more than 2 hours, thus there was no parking contravention at all.

See Figure 1 above, to illustrate my point.

Initial Parking has displayed on their PCN only the ANPR entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated – this will be argued in point 5 below.

In an important case (3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) Fistral Beach), the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore the judge ruled there was no contravention of the terms and conditions.

As such, 16 minutes is a reasonable grace period to exit the car park after the parking contract has ended due to the reasons outlines above. Initial parking has issued the parking charge notice incorrectly.





3. 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 Initial Parking 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.''


4. 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 – Initial Parking – 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 Initial Parking 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 – Initial Parking – 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.


5. 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 as opposed to 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.

This was upheld in the decision for case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage.

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.


6. 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 legible 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 here of the PCN with ANPR images on it>

Figure 2: Images from PCN - NtK



7. The ANPR System is Neither Reliable nor Accurate

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 Initial Parking 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 the vehicle supposedly entering and leaving Fistral Beach Car Park, it is vital that Initial Parking produces evidence in response to these points.

In addition to showing their maintenance records, I require Initial Parking 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. Initial Parking 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 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 Initial Parking to strict proof to the contrary.



8. 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).

kml

Hi all, so Initial Parking have come back with their sparse rebuttal.

If it helps, their rebuttal contained:
- uncropped pics of vehicle showing time, date, location (cover one of my appeal points)
- signage, map of signage (i feel this would be very useful for future appellants, I'll upload later)
- copy of NtK
- copy of my appeal to them
- copy of their response with POPLA code
- whitelist session, which I think is the Parking app date for the ticket (it's not explained or given any context!!)
- Status log of the dates of documents (NtK, appeals, appeal response)
- ticket details of the PCN
- 4 sentences at the end of the doc "We can see payment data for two hours on the date of contravention. The Motorist was onsite for 2 hours, 22 minutes and 8 seconds. As such, the Terms and Conditions of the site were breached.The charge, therefore, remains valid and the payment outstanding."

Here is what I'm planning to do with my 2,000 characters for comments on their rebuttal (I'm 239 characters over so please suggest edits!). I have until 4th August to send comments. Thoughts?? I could shorten the headings as they are a direct copy from my appeal?

---

Initial Parking failed to refute the below appeal points:

1. NtK Sent by Post: PoFA 2012 – non-compliance
Initial Parking’s NtK, status log & ticket detail supports my appeal. It shows NtK was posted on 10th June & therefore arrived a day too late for keeper liability to apply; failing POFA 2012.

2. Grace Period: BPA CoP – non-compliance
Initial Parking’s Terms & Conditions signage supports the “observation period” of 6-7 mins in my appeal. The 4th sentence of T&Cs signage states “…(if you do not agree…leave within 10 minutes of entry).”

The T&Cs then contradict the 4th sentence & breach BPA CoP 13.2 & 13.4, stating in the 8th sentence “…parking time is calculated by the ANPR cameras from the point of entry to the point of exit.” This does not provide a BPA CoP grace period to enter & exit the car park.

I maintain that 16 mins was a reasonable grace period to exit the car park after the parking contract has ended due to the reasons outlined in my appeal. Initial parking has issued the PCN incorrectly.

3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
Initial Parking failed to prove that (as an individual) I have personally not complied with terms in place on the land or show that I am personally liable for their parking charge.

4. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA CoP
The Contract for Parking Enforcement provided by Initial Parking fails to comply with all sections of Para 7 of the BPA CoP.

7.3a “the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined “. This is not set out in the contract, it merely states “Site: Fistral Beach, Newquay, TR7 1HY”.
7.3c “any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement”. This is not set out in the contract.

Additionally, the final sentence of the contract states that “By signing this contract the operator agrees to adhere to all points raised in the BPA AOS Code of Practice.” My appeal proves that Initial Parking have breached multiple points of the BPA CoP, therefore violating the contract with the Landowner & making it void.

5. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
Initial Parking failed to provide evidence of parking, as upheld in the decision for case 3JD08399.

7. The ANPR System is Neither Reliable nor Accurate
Initial Parking failed to provide records to ensure the accuracy of the ANPR images, or evidence to rebut the assertion regarding lack of common "time synchronisation system".

8. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras & no Advertising Consent for signage
Initial Parking provided no evidence of planning permission or advertising consent.