Fistral Beach POPLA appeal

MistyZ

Could start with 'Initial Parking (IP) fail to refute these appeal points:' and refer to them as 'IP' thereafter, that'll save a good few characters.

It looks okay to me but I'm no expert. As it is so well-written you can sacrifice some of the grammatical niceties to further reduce the character count and it'll still be really clear. For example use the present tense if possible: 'IP fail ....', 'IP provide no evidence'.

Shortening the headings as well should pretty much get you there.

Fruitcake

A few suggestions.

PoPLA assessors have trouble counting sometimes. I think point 1 needs altering to state how the NTK fails PoFA.

kml wrote: »

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."

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Initial Parking failed to refute the below appeal points:

1. NtK Sent by Post: PoFA 2012 – non-compliance
Initial Parking’s NtK[STRIKE], status log & ticket detail supports my appeal. It shows NtK [/STRIKE]was posted on 10th June & [STRIKE]therefore[/STRIKE] arrived on the 12th, day 15th, 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 [STRIKE]then[/STRIKE] 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 [STRIKE]personally[/STRIKE] not complied with terms in place on the land or show that I am [STRIKE]personally[/STRIKE] 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.

Point 6 is missing. You need to renumber the last few points.

If you still need to reduce the character numbers you could delete all of point 7 as PoPLA don't accept ANPR failings unless you can provide proof.

kml

Thanks for comments, I'll amend & see where i get to on the word count!

kml

Here is a link to the signage provided by Initial Parking. I'd imagine it will be useful in future appeals for anyone needing pics of signage.

hxxps/imgur.com/a/c5XMstZ

Contains Contract between Landowner & all signage from Fistral Beach

KeithP

kml wrote: »

Seems as a new user I can't add links...:(

Search the forum for hxxp or hxxps to see how others manage.

kml

Ok, I've got it down to 2,000 characters. Had to cut heavily as it includes spaces in the character count:-(

Any further comments before i submit to POPLA? Thanks!

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Initial Parking (IP) fail to refute below appeal points:

1.NtK Sent by Post: PoFA 2012–non-compliance
IP’s NtK was posted 10th June & it arrived on the 12th, Day 15, a day too late for keeper liability to apply; failing POFA 2012

2.Grace Period: BPA CoP–non-compliance
IP’s T&Cs signage supports “observation period” of 6-7 mins in my appeal. The T&Cs’ 4th sentence says “…if you do not agree…leave within 10 minutes of entry”. T&Cs then contradict the 4th sentence & breach BPA CoP 13.2 & 13.4, stating in 8th sentence “…parking time is calculated by the ANPR cameras from the point of entry to the point of exit”, thus no BPA CoP grace period to enter & exit the car park.

I maintain 16 mins is a reasonable grace period to exit after parking contract ended as per reasons in my appeal. IP has issued the PCN incorrectly

3.Operator not shown individual pursued is driver
IP fail to prove that (as an individual) I have not complied with terms in place on the land or that I am liable for parking charge

4. Landowner Authority: BPA CoP–non-compliance
IP’s Contract for Parking Enforcement fails to comply with all sections of BPA CoP Para 7:
7.3a “the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined “. Not in 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”. Not in contract

Also, the final contract sentence states “By signing this contract the operator agrees to adhere to all points raised in the BPA AOS Code of Practice.” My appeal proves IP breach multiple points of BPA CoP, thus violating the contract with the Landowner & making it void.

5.No Evidence of Period Parked: PoFA 2012
IP fail to give evidence of parking, as upheld in decision for case 3JD08399

6.Images (ADDRESSED)
7.ANPR
IP fail to prove accuracy
8.No Planning Permission/Advert Consent
IP give no evidence

kml

Hi All,

Unfortunately my appeal against Initial Parking was unsuccessful. I'm surprised, as I thought the grounds that the NtK was day 15 would win, but the assessor disagreed with my maths...

Here is the response (I've also posted in the POPLA decisions thread):

Link to original thread: forums.moneysavingexpert.com/showthread.php?t=6017638

PPC: Initial Parking

Decision: Unsuccessful

Assessor Name: Ashlea Forshaw

Assessor summary of operator case:
The parking operator has issued a Parking Charge Notice (PCN) to the motorist for, unpaid tariff time.

Assessor summary of your case:
The appellant has provided a document which outlines their grounds for appeal. The grounds are as follows: • Notice to Keeper is non compliant with PoFA 2012. • Grace period was non compliant with BPA Code of Practice. • The operator has not shown that the individual who it is pursuing is in fact the driver. • No evidence of landowner authority. • No evidence of period parked, NTK does not meet PoFA 2012. • Vehicle images on the PCN are non compliant with BPA Code of Practice. • The ANPR system is non reliable nor accurate. • No planning permission from Cornwall council for pole mounted ANPR camera and no advertising consent for signage.

Assessor supporting rational for decision:
On this occasion, the driver of the vehicle has not been identified. Therefore, I will be assessing keeper’s liability in this case. For the operator to transfer liability from the driver to the registered keeper of the vehicle, the operator must have issued a notice to keeper using the Protection of Freedoms Act (PoFA) 2012 and must comply with schedule 4 paragraph 9. This section of PoFA states the following: A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2)The notice must— (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; Having looked at the notice to keeper provided within the operator’s case file, I am satisfied that the document has met the requirements of PoFA 2012. Therefore, the keeper can now be held liable for any unpaid parking charges. I will now look at the terms and conditions of the site. The terms and conditions of this site state, “Parking Tariffs Apply, 2-3 hours £5.00… failure to comply with the terms & conditions may result in a parking charge notice of £100.00”. The operator has issued a PCN to the motorist for, unpaid tariff time. The operator has provided copies of its signage displayed at the site, along with a site map. Further, the operator has provided still camera images taken by the Automatic Number Plate Recognition (ANPR) Systems. The images show the appellant entering the site at 15:25 and exiting at 17:48, totalling a stay of two hours and 22 minutes. The operator has provided a report which shows that the appellant’s vehicle, LL10 CGX, was registered against a two hour payment that day. The appellant however overstayed this period by 22 minutes and did not make an additional payment. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have not been met. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. The appellant has raised more than one ground for appeal. I will be addressing each ground separately. • Notice to Keeper is non compliant with PoFA 2012. The appellant says that the notice was not provided within the 14 days as it arrived on the 15th day. I have reviewed the notice to keeper and I am satisfied that this was issued within the 14 working days. If the appellant received this late, this is an issue she will need to raise with the postal service, this is no fault with the operator. • Grace period was non compliant with BPA Code of Practice. The appellant has raised two separate grace periods, one at the beginning of the contract and one at the end of the contract. The appellant has said that there was a queue when entering the site, she had to find a space, park her vehicle, download the parking app and then pay for parking. She says that this had taken her 6-7 minutes to do so. I agree that motorists are given a reasonable period to enter a car park, review the terms and to decide if they wish to stay or go. On this occasion, the appellant parked and purchased a ticket within 7 minutes of entering. I consider this to fall in line with a grace period. I will now look at grace periods when leaving the site. Section 13.4 of the BPA Code of Practice states, “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 appellant’s ticket expired at 17:32. The appellant did not exit the site until 17:48. This is 16 minutes after the ticket expired. I note that the appellant has said that there is a long distance from the bottom of the car park to the exit and that there were slow queues to exit due to school holiday congestion however, there is no clear evidence to me that there was congestion and therefore, I cannot consider 16 minutes to leave the site to fall within a reasonable period. I am satisfied that 16 minutes to leave the site exceeded a grace period. • The operator has not shown that the individual who it is pursuing is in fact the driver. Whilst I appreciate the appellant’s comments, I have already considered PoFA 2012 at the beginning of my report. It was stated that PoFA 2012 had been met and therefore, I will not comment on this ground of appeal any further. • No evidence of landowner authority. Section 7 sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has provided a copy of the contract. Having reviewed this against section 7, I am satisfied that the document has met the requirements laid out in the BPA Code of Practice. • No evidence of period parked, NTK does not meet PoFA 2012. Whilst I appreciate the appellant’s comments, the ANPR images have shown the times the appellant entered and exited. It is the appellant’s responsibility to ensure that they pay for the full duration of their stay. A grace period at the start and at the end of the contract has been given however it is found that the appellant overstayed a grace period when leaving the site. The appellant did not make sufficient payment for her stay. I am satisfied that the ANPR images show how long the appellant remained on site. It is irrelevant how long the appellant was parked. The fact is she remained on site and therefore, was under a contract with the parking operator. • Vehicle images on the PCN are non compliant with BPA Code of Practice. The appellant has raised section 20.5a of the BPA Code of Practice which states the following: “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 appellant says that the images of her vehicle are not date or time stamped on the photograph nor do they clearly identify the vehicle entering and exiting the site. Having reviewed the close-up images of the appellant entering and exiting this site, I am satisfied that the images are date and time stamped. This is clear to see within the evidence pack on pages 1 and 2. Therefore, I disagree with the appellant’s comments that they are not clear. • The ANPR system is non reliable nor accurate. Section 21.1 of the BPA Code of Practice states: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” The BPA audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate. Independent research has found that the technology is accurate. The appellant has not provided me with any evidence to disprove that the ANPR cameras were not working on the date of the event, as such I consider that they were fully accurate. • No planning permission from Cornwall council for pole mounted ANPR camera and no advertising consent for signage. If the appellant would like to see a copy of planning permission, they would need to contact the local council. This is not information POPLA would obtain. The fact remains that the operator has provided a contract which proves that permission has been given for the operator to operate on this land. Therefore, permission will have been granted for the signage to be put in place. The appellant has also provided additional comments to POPLA after reviewing the operator’s case file. The appellant has expanded upon her original grounds for appeal however, I do not feel that the comments require any further response as I have addressed the issues within my report. Ultimately, the appellant has parked on site for an additional 16 minutes without making a payment to cover this period. Therefore, breaching the terms of the car park. Based on this I am satisfied that the PCN has been issued correctly and so, I must refuse this appeal.


I shall go back to the Newbies page to look at how next to proceed, as my understanding is that this is as far as I can go with POPLA.

Thanks!

Umkomaas

I've responded against your post in the POPLA Decisions sticky. Please raise a complaint with POPLA as I've outlined in the sticky.

kml

I have drafted a complaint to the lead assessor. Is there anything I've missed or should add/change?


I am writing to bring to your attention a procedural error that has led to an incorrect POPLA appeal decision.
I believe the assessor has incorrectly interpreted PoFA Schedule 4, Paragraph 9. The assessor’s supporting rationale for decision contained the following:
“The appellant says that the notice was not provided within the 14 days as it arrived on the 15th day. I have reviewed the notice to keeper and I am satisfied that this was issued within the 14 working days. If the appellant received this late, this is an issue she will need to raise with the postal service, this is no fault with the operator.”

The assessor has interpreted PoFA as “14 working days”, whereas the Schedule actually states “14 days” – the significance being that weekends & bank holidays are counted within this timeline.
As stated in my appeal; 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 in this case 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.

Timeline:
28 May Day 0 End of Period of Parking
29 May Day 1 Start of PoFA Schedule 4, Para 9 timing of 14 days
30 May Day 2
31 May Day 3
1 June Day 4
2 June Day 5
3 June Day 6
4 June Day 7
5 June Day 8
6 June Day 9
7 June Day 10
8 June Day 11
9 June Day 12
10 June Day 13 Date of Notice on NtK. POFA 2012 Schedule 4 (paragraph 9, sub-paragraph 6) and the Interpretation Act 1978 timing commences “presumed…to have been delivered…on the second working day after the day on which it is posted”.
11 June Day 14 (1st working day after NtK posted)
12 June Day 15 (2nd working day after NtK posted) NtK received.

The timing is nothing to do with the postal service, the error rests with Initial Parking who issued the NtK on day 13, presumably in the knowledge that it could not be deemed delivered within the strict time limits of PoFA requirements in which to hold the keeper liable.

Based on the above information, I kindly request that you review the decision of the appeal in question and overturn it.

kml

I've changed the assessor interpretation paragraph (second para above) to clarify the "issued within 14 working days" assessment vs the law which states "delivered within 14 working days".


The assessor has interpreted POFA 2012 Schedule 4 (paragraph 9, sub-paragraphs 4b, 5 & 6) as “issued within the 14 working days”, whereas the Schedule actually states “delivered to that address within…14 days” – the significance being that weekends & bank holidays are counted within this timeline and the notice has to have been delivered to the keeper, not just issued from the parking company.