HIre car PCN Popla appeal help needed

LJ48

Hello

Ive looked for a long time on the NEWBIES thread and other threads for the information I need to appeal to POPLA for a parking charge issued by Initial Parking at Fistral beach car park and have drafted my appeal and wanted to check it with you all before submitting it. I hope this is ok.

Details: I hired a car in Cornwall, entered the Fistral beach car park which is controlled by Initial Parking. No clear signs were evident to me upon entering the car park about an APRN in use to record entrance and exit times and proceeded to find a parking space in the busy car park. Once I managed to park (which took some time), I proceeded to find out what parking fee I needed to pay but as I didn't have the right change had to download a parking fee app in order to pay the fee, which I did. I then returned to the car at the end of the parking period covered by the fee and left the car park. Initial Parking is claiming unpaid tariff time for the 20 mins it took for me to park and pay the parking fee, and the 5 minutes it took for me to leave the car park, not allowing a grace period.

The hire company have also charged me a £40 admin fee and won't 'consider' refunding it unless I can provide evidence the fine was canceled.

Would you be able to advise if my below appeal is worded correctly and strong enough?
Thank you in advance.
//

Dear Sir/Madam

Re: PCN No. XXXX
Vehicle Reg: XXXX

I, the hirer of this vehicle, received a letter dated 13/06/2019 acting as a PCN Notice to Hirer. My appeal to the operator – Initial Parking – was submitted and acknowledged by the operator on 16/06/2019 and rejected via an email dated 17/06/2019. I contend that I, as the hirer of the vehicle, am not liable for the alleged parking charge as it has been both unfairly and unlawfully issued and wish to appeal against it on the following grounds:

Firstly, the Notice to Hirer failed to meet the obligations of Schedule 4 of the POFA Act 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph 13 (2). whereby the creditor/parking operator must meet the conditions of Schedule 4 of POFA in order for them to be able to invoke keeper liability for a Parking Charge. This involves providing a Notice to Hirer, along with a Notice to Keeper as well as:

a) a statement sign by or on behalf of the vehicle-hire firm to the effect that at the time the vehicle was hired to a named person under a hire agreement;

b) a copy of the hire agreement; and

c) a copy of a statement of liability signed by the hirer under that hire agreement.

These documents have not been supplied to me at all and within the ‘relevant period’ of 21 days beginning on the day after that on which the documents required by 13 (2) are given to the creditor - as per PoFA.

Europcar, vehicle-hire firm, has informed me that they transferred liability of this claim on the 6th June 2019 - see supplied letter as evidence. Therefore, under the obligations of Schedule 4 of the POFA Act 2012, the claim for parking fees is no longer valid.

Secondly, the parking fee was paid by the driver for the time the vehicle was actually parked in the car park so no contravention stated by Initial Parking occurred - see parking ticket supplied as evidence. The parking fee paid by the driver covers the times 12:10 - 14:10. Initial Parking use ANPR cameras at the entrance to the car park to calculate parking times but do not allow for a grace period. The APRN camera recorded the vehicle entering the car park at 11:50 and exiting at 14:15.

The period of time either side of the times the parking fee covers, which Initial Parking are claiming are ‘Unpaid Tariff Time’, was the time that the driver took to enter the busy car park, wait for a parking space to become available, to then read the parking conditions signs to consider whether to park or not, to download the app required to pay the parking fee, get set up on that app and finally pay the parking fee. Then after parking, the 5 minutes it took for the car to leave the car park. This alleged 'Unpaid Tariff Time' should be considered 'grace periods’, as per the BPA Code of Practice clause 13.

The allegation appears to be!based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time’.

Furthermore, contrary to the BPA CoP clause 21, no signage at the entrance of the car park makes it clear to the driver that ANPR cameras are being used to record entry to the car park as evidence of the drivers intention to park on the land and there is no way of the company proving evidence of the exact times the car was actually parked in a parking space, only its entry and exit times.

I am not able to supply evidence of this lack of signage as I live 5 hrs away from the car park location and so have no way of collecting this evidence but it is Initial Parking’s responsibility to provide evidence that this signage is in place on the date of the alleged contravention.

Finally, the £100 fine being demanded by Initial Parking is not a true pre-estimate of loss.

Therefore, I appeal to POPLA to rule that this parking charge is invalid.

Yours faithfully,

XXXX

Half_way

You have not been fined, what is the hire company? what do the hire company terms state ?
has the parking company complies with the protection of freedoms act ?

Coupon-mad

see supplied letter as evidence.

DON'T supply any evidence attached about hiring the car! You would be helping Initial and POPLA might take it to mean liability was properly transferred, based on what YOU show them!

Your words are fine, it's the attachment from the hire firm that you need not to show.

I would also point out how the wording of the NTK fails to meet what a NTH has to say about hirer liability (not just the timeline and lack of attachments).

Remove this and instead use the generic long unclear signs paragraph:

I am not able to supply evidence of this lack of signage as I live 5 hrs away from the car park location and so have no way of collecting this evidence but it is Initial Parking’s responsibility to provide evidence that this signage is in place on the date of the alleged contravention.

And finish with 'no landowner authority' (another template from post #3 of the NEWBIES thread).

Finally, copy this style of splitting the grace periods arguments and really go to town explaining the time taken, and mainly blame traffic and gridlock getting into a space (put that at 10 minutes and explain if it was a sunny day/a weekend, and that this is the car park on the beach itself), then put the time taken to read the signs and download the app and click through all stages and pay, at 10 minutes (split it up more than you did already, like here, but in your case split it 3 ways, 10 mins, 10 mins, 5 mins) :

https://forums.moneysavingexpert.com/discussion/comment/75950870#Comment_75950870

Careful not to imply who was driving when talking about the parking and paying of course. Show us how it looks once done.

The_Deep

The hire company have also charged me a £40 admin fee and won't 'consider' refunding it unless I can provide evidence the fine was cancelled.

These are not fines, they are private invoices for the damage the PPC alleges they suffered when, allegedly, you breached a contract they allege you had agreed with them, we call them scams. They only need to be paid if they take you to a Civil Court, win, and a judge tells you to pay.

The hire company may themselves be in breach of contract if they insist on charging you for dealing with this. What specifically does the hire agreement say about PCNs? here is a MOU between then industry's trade body and the BPA
which may be apposite.

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

LJ48

Thanks so much for all your advice above, sorry for the delayed reply, I'm currently away abroad and have found it hard to find the time to find a place with wifi and sit down to respond. I have amended my appeal below.

Let me know if you think it's good to send?
I didn't add in the point about unclear signage as I don't have any evidence in the form of photos of the signs in the car park and don't know what they look like and a lot of the points seem to specifically reference specifics of the signs, which I am unable to accurately comment on.
Ive taken out any links supplied as I cant post links as a new user.

Thanks so much.

Dear Sir/Madam

Re: PCN No. XXXX
Vehicle Reg: XXXX

I, the hirer of this vehicle, received a letter dated 13/06/2019 acting as a PCN Notice to Hirer. My appeal to the operator – Initial Parking – was submitted and acknowledged by the operator on 16/06/2019 and rejected via an email dated 17/06/2019. I contend that I, as the hirer of the vehicle, am not liable for the alleged parking charge as it has been both unfairly and unlawfully issued and wish to appeal against it on the following grounds:

1) The Notice to Hirer failed to meet the obligations of Schedule 4 of the POFA Act 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph 13 (2).

2) The parking fee was paid by the driver for the time the vehicle was actually parked.

3) Non-compliance of BPA Code of Practice on allowance of‘ Grace periods

4) No Evidence of Period Parked - Notice to Hirer does not meet PoFA 2012 requirements

5) The ANPR system is neither reliable nor accurate

6) Vehicle Images contained in PCN are non-compliant of BPA Code of Practice

7) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

8) The £100 charge being demanded by Initial Parking is not a true pre-estimate of loss.


1) Notice to Hirer failed to meet the obligations of Schedule 4 of the POFA Act 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph 13 (2). whereby the creditor/parking operator must meet the conditions of Schedule 4 of POFA in order for them to be able to invoke keeper liability for a Parking Charge. This involves providing a Notice to Hirer, along with a Notice to Keeper as well as:

a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the time the vehicle was hired to a named person under a hire agreement;

b) a copy of the hire agreement; and

c) a copy of a statement of liability signed by the hirer under that hire agreement.

These documents have not been supplied to me at all and within the ‘relevant period’ of 21 days beginning on the day after that on which the documents required by 13 (2) are given to the creditor - as per PoFA.

Europcar, the vehicle-hire firm, has informed me that they transferred liability of this claim on the 6th June 2019. Therefore, under the obligations of Schedule 4 of the POFA Act 2012, the claim for parking fees is no longer valid.


2) The parking fee was paid by the driver for the time the vehicle was actually parked so no contravention stated by Initial Parking occurred - see parking ticket supplied as evidence. The parking fee paid by the driver covers the times 12:10 - 14:10, which is the time the vehicle was actually parked. The times either side should be considered ‘grace periods’.

3) Grace period: BPA Code of Practice non-compliance
The alleged 'Unpaid Tariff Time' should be considered 'grace periods’, as per the BPA Code of Practice clause 13.

Initial Parking appear to use ANPR cameras at the entrance to the car park to calculate ‘parking times’ but have not allowed for a grace period. The APRN camera recorded the vehicle entering the car park at 11:50 and exiting at 14:15.

The period of time either side of the times that the parking ticket covers, which Initial Parking are claiming are ‘Unpaid Tariff Time’, was the time that the driver took to enter the busy beach car park, it was a very sunny day and so the driver had to wait behind many cars to get into the car park and wait for a parking space to become available (10 minutes), then took time to read the parking terms and conditions to consider whether to park or not (5 mins), then download the app required to pay the parking fee, get set up on that app and finally pay the parking fee (5 mins). Then, the 5 minutes after parking fee covers is the 5 minutes it took for the car to leave the car park.

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.

BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

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.”

BPA’s Code of Practice (18.5) states that:
“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. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

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.”

In November 2017 there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period”

Finally, some 3 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: LINK REMOVED - to add in])

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 not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate and read the terms and conditions, plus download the required parking app to pay the parking fee (in this case in a busy beachside car park on a sunny day). It is therefore argued that the alleged ‘unpaid tariff time’ time either side of the paid parking ticket fee in question (which Initial Parking claims was 20 minutes before the time the parking ticket covers and 5 minutes after) are not an unreasonable grace period.

4) No Evidence of Period Parked – Notice to Hirer does not meet PoFA 2012 requirements

The Notice to Hirer states:
“Contravention: Unpaid Tariff Time
Location: Fistral Beach, NewQuay
Entry Details: 09/05/2019 at 11:50:10
Exit Details: 09/05/2019 at 14:15:31”

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus the time it took to enter the busy car park, wait for an available car parking space, attempt to read the terms and conditions before deciding against parking/entering into a contract, plus downloading the parking fee app.

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 NtH simply claims the vehicle was at “Location: Fistral Beach, Newquay.” The NtH separately states that the vehicle “entered at 11:50:10 and departed at 14:15:31”. At no stage do Initial Parking explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

It is not in the gift of Initial Parking to substitute “entry/exit” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

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 the duration claimed) and at the location stated in the NtH.


5) The ANPR System is Neither Reliable nor Accurate

The Initial Parking Notice to Hirer (NtH) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question and two unclear black and white images of the front of the car and rear of the car. There is no connection demonstrated whatsoever with the car park in question.

These times do not equate to any single evidenced period of parking. By Initial Parking’s own admission on their NtH, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states; “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Initial Parking to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times, it is vital that Initial Parking produces the evidence requested in the previous paragraph.

In addition, contrary to the BPA CoP clause 21, no signage at the entrance of the car park makes it clear to the driver that ANPR cameras are being used to record entry to the car park as evidence of the drivers intention to park on the land and there is no way of the company proving evidence of the exact times the car was actually parked in a parking space, only its entry and exit times.

6) Vehicle Images contained in PCN are non-compliant with the BPA Code of Practice

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 cropped and unclear images of the vehicle with o clear surroundings showing locations and two close-up images of the vehicle number plate. None 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 included within the PCN but not 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 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.


7) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP 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


8) Finally, the £100 charge being demanded by Initial Parking is not a true pre-estimate of loss.


Based on all the points laid out above, I appeal to POPLA to rule that this parking charge is invalid.

Yours faithfully,

XXXX

Le_Kirk

That is a very long defence, you would be wise to check out some of the concise defences written by Bargepole and others in post # 2 of the NEWBIE thread. You can use one of those and adapt it to suit your case. A lot of what you have put should be saved for the witness statement. You should dump your point 8 completely, GPEOL is old hat and was killed off by the Beavis case.

KeithP

Le_Kirk wrote: »

That is a very long defence...

Le_Kirk, it is a PoPLA appeal.

Le_Kirk

KeithP wrote: »

Le_Kirk, it is a PoPLA appeal.

Ah, that would explain why it is so long. I did not read back through the thread! My mistake.

MistyZ

There's no point in including paragraph 8 'No Genuine Pre-Estimate of Loss' for the reasons Le_Kirk mentions (even though it is actually a POPLA appeal!).

LJ48

Ok, Im going to send the appeal to POPLA, minus point 8, if you think this is OK. Thanks for your time reviewing it for me.

LJ48

Just received notification that my POPLA appeal on this PCN was successful.
Assessor supporting rational for decision is below in case it is of any help to others!
Thanks for your support on this appeal everyone

Assessor summary of your case:
The appellant has raised several grounds of appeal such as: • The notice to hirer failed to meet the obligation of the Protection of Freedoms Act (PoFA) 2012. • The parking fee was paid by the driver for the time the vehicle was parked. • Grace periods. • No evidence of period parked. • The ANPR system is neither reliable nor accurate. • Vehicle images contained in the Parking Charge Notice are not compliant. • No evidence of landowner authority. To support the appeal, the appellant has provided POPLA with evidence of payment.

Assessor supporting rational for decision:
As the driver of the vehicle at the time of the alleged parking event has not been named, the operator will need to demonstrate strict compliance with the requirements of the Protection of Freedoms Act (PoFA) 2012 in order to transfer liability for the outstanding amount of the parking charge to the registered keeper. Having examined the Notice to Keeper, I am not satisfied that the conditions of PoFA 2012 have been met on this occasion, specifically in relation to the section outlined below: “(2) The notice must- (b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full”. While this may be loosely implied by a request for the driver’s name and service address, I am not satisfied that it is clearly stated, which is a clear necessity. As PoFA 2012 has not been met, I cannot conclude that liability for the amount of the parking charge can be transferred to the registered keeper, as such I cannot conclude that the Parking Charge Notice has been correctly issued. Accordingly, I must allow the appeal. I would not need to consider other grounds raised as I have allowed this appeal.