FISTRAL BEACH, Newquay, Inital Parking.. please help!!

The_Deep

part of me wants to pay to get it dealt with … part of me wants to fight .

If you pay it heed the words of an MP in the HofC recently who opined that some of these companies may have links to organised crime.

MinnieSox9

Thank you for the push guys! Right, I’ve made a start, would you mind reading over and let me know what you think needs changing or adding please!

FORMAL COMPLAINT – FAO: MR. JOHN GALLAGHER
REF: XXXXXXXXXXXX

Dear Mr Gallagher,

I recently appealed two Parking Charge Notices through the POPLA service, and I strongly believe procedural errors have resulted in both of my appeals being refused.

This complaint is to bring to your attention a procedural error made by two assessors that has led to two incorrect POPLA appeal decisions.

I believe the both assessors named, Adele Brophy and Stuart Lumsden, have incorrectly interpreted PoFA Schedule 4, Paragraph 9.

Stuart Lumsden’s decision contained the following:
“The appellant explains that the NTK sent by post fails POFA 2012. I note the appellants comments and have reviewed the NTK, I must point out that it does comply with POFA, only just, the breach date is 3 July, as stated in POFA the 14 days starts the first working day after the breach, as such the appellant has confirmed this was received on 18 July, day 14.”

Adele Brophy’s decision contained the following:
“The appellant has advised that the Notice to Keeper Sent by Post Fails to meet the requirements of PoFA 2012. I have reviewed the PCN in line with Paragraph 9 Section 2 and 5 of PoFA 2012 and I am satisfied that it has complied with the above. Whilst the appellant may believe that the PCN was incorrect because they did not receive the letter until 18 July 2019, the operator has issued the PCN within 14 days from the day after the parking event.”

This is not a judgment call by either assessor, this is miscounting of days, and in addition, a wrong statement about when the 14 day period starts – which does not only start on a ‘working day’. Both decisions are wrong in law.

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 16th July 2019, however it arrived two working days later on 18th July, which is the 15th day after the 3rd July alleged 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 therefore fails the PoFA 2012.

Timeline:
3rd July – Date of alleged event - Day 0
4th July - Day 1 Start of PoFA Schedule 4, Para 9 timing of 14 days
5th July - Day 2
6th July - Day 3
7th July - Day 4
8th July - Day 5
9th July - Day 6
10th July - Day 7
11th July - Day 8
12th July - Day 9
13th July - Day 10
14th July - Day 11
15th July - Day 12
16th July - 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”.
17th July - Day 14 (1st working day after NtK posted)
18th July - Day 15 (2nd working day after NtK posted) Date deemed delivered by PoFA - the law of this country.

I require you to review the decision of the appeal in question and overturn it, as this is a decision in direct conflict with UK law. '

Adele Brophy also states:
“After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle at the time of the relevant parking event. The operator is therefore pursuing the appellant as the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in PoFA 2012 must be adhered to.”

Which is contradicted by Stuart Lumsdens response of:
“The appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver.”

These shows a lack of consistency in regards to the assessors, as I used the same appeal wording for both of my Popla appeals. Both statements by the assessors cannot be true.

The_Deep

Why not copy this letter to Trading Standards and your MP?

MinnieSox9

The_Deep wrote: »

Why not copy this letter to Trading Standards and your MP?

I want to see people’s opinions on my letter/complaint first see if any changes I need to make or any additions

Le_Kirk

Looks good to me. Others will have their own opinion, so wait a day or so.

Fruitcake

MinnieSox9 wrote: »

Thank you for the push guys! Right, I’ve made a start, would you mind reading over and let me know what you think needs changing or adding please!

FORMAL COMPLAINT – FAO: MR. JOHN GALLAGHER
REF: XXXXXXXXXXXX

Dear Mr Gallagher,

I recently appealed two Parking Charge Notices through the POPLA service, and I strongly believe procedural errors have resulted in both of my appeals being refused.

This complaint is to bring to your attention a procedural error made by two assessors that has led to two incorrect POPLA appeal decisions.

I believe the both assessors named, Adele Brophy and Stuart Lumsden, have incorrectly interpreted PoFA Schedule 4, Paragraph 9.

Stuart Lumsden’s decision contained the following:
“The appellant explains that the NTK sent by post fails POFA 2012. I note the appellants comments and have reviewed the NTK, I must point out that it does comply with POFA, only just, the breach date is 3 July, as stated in POFA the 14 days starts the first working day after the breach, as such the appellant has confirmed this was received on 18 July, day 14.”

Adele Brophy’s decision contained the following:
“The appellant has advised that the Notice to Keeper Sent by Post Fails to meet the requirements of PoFA 2012. I have reviewed the PCN in line with Paragraph 9 Section 2 and 5 of PoFA 2012 and I am satisfied that it has complied with the above. Whilst the appellant may believe that the PCN was incorrect because they did not receive the letter until 18 July 2019, the operator has issued the PCN within 14 days from the day after the parking event.”

This is not a judgment call by either assessor, this is miscounting of days, and in addition, a wrong statement about when the 14 day period starts – which does not only start on a ‘working day’. Both decisions are wrong in law.

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 16th July 2019, however it arrived two working days later on 18th July, which is the 15th day after the 3rd July alleged 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 therefore fails the PoFA 2012.

Timeline:
3rd July – Date of alleged event - Day 0
4th July - Day 1 Start of PoFA Schedule 4, Para 9 timing of 14 days
5th July - Day 2
6th July - Day 3
7th July - Day 4
8th July - Day 5
9th July - Day 6
10th July - Day 7
11th July - Day 8
12th July - Day 9
13th July - Day 10
14th July - Day 11
15th July - Day 12
16th July - 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”.
17th July - Day 14 (1st working day after NtK posted)
18th July - Day 15 (2nd working day after NtK posted) Date deemed delivered by PoFA - the law of this country.

I require you to review the decision of the appeal in question and overturn it, as this is a decision in direct conflict with UK law. '

Adele Brophy also states:
“After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle at the time of the relevant parking event. The operator is therefore pursuing the appellant as the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in PoFA 2012 must be adhered to.”

Which is contradicted by Stuart Lumsdens response of:
“The appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver.”

These shows a lack of consistency in regards to the assessors, as I used the same appeal wording for both of my Popla appeals. Both statements by the assessors cannot be true.

You have quoted both assessor's comments one after the other.
I suggest you put your comments about the assessor's mistake immediately under each statement by the assessor so your comments immediately follow from the assessor's comments.

In other words, Stuart's decision should be followed by your comments about his mistakes, then Adele's decision should be followed by your comments about her mistakes.

Umkomaas

I think you should also explain that two separate tickets are being pursued for the same day/date - two separate alleged infringements, one in the morning, a second later that same day, otherwise there might be confusion as to why only one set of dates are shown in your count of the days.

secret_ID

I have received a NTK from Smart for Fistral Beach too, from half term the other week.

A 3 hour ticket was purchased approx 15 minutes after Initial's entry photo (queuing, finding a space, faffing with kids, finding change for machine, reading signage etc) but there was another 20 minutes or so between the expiry of the ticket and the exit photo (faffing with kids!!)
Based on this https://imgur.com/a/c5XMstZ from kml's recent case
my thoughts are this
1. Grace Period - whilst the discrepancy between parking payment and time spent on the premises essentially boils down to this my guess is that POPLA wont uphold an appeal on this basis due to the longer than usual time frames?

2. Signage - I dont have evidence of these besides that provided by Initial and linked to above linked to above. I live too far from the site to go and take any. There were planty of signs around but they certainly didnt make it clear that pay and display would be linked to camera images on entry and exit. Initial provided kml with a plan of their signage and one photo. I plan to request photographic evidence of each one as the plan proves nothing on its own. The car was parked fairly centrally well away form the sign they have provided a photo for and a different machine was used to that shown in their photo. The driver doesnt recall the exact signage near the ticket machine that was used and presumably Inital can be asked to provide evidence of this exact signage. Hopefully as they are based in Birmingham they dont have this and it is also too far for them to make the trip to take them

3. Landowner authority - based on the 'contract' they provided kml this seems to be the winning point to my mind. Its not signed by 2 parties from each side, there is no printing of the names by illegible signatures and perhaps most crucially shows no end date. From what I have read, neither kml nor MinnieSox9 really laboured these points with POPLA and the contract was accepted as proof of authority.

4. POFA 2012 - Unfortunately they were very timely, well within the 14 days so no joy there

5. No evidence of period parked - this doesnt seem to have held mush sway with POPLA in recent Fistral cases but I'll include it

6. Vehicle images non compliant - Initial seem to supply full images later but again I will include this

I will probably include points 4 and 8 from here https://drive.google.com/file/d/1v_W_UseWdI_d_9WWMUfVecx0uDUYOwKs/view also

If any of you helpful folk can share their thoughts with me on the above I will work them into a draft.

Many thanks

Le_Kirk

You need to start your own thread rather than piggy backing on someone else's; that way you will receive bespoke help for your circumstances.

MinnieSox9

Sent my email to POPLA yesterday evening, today I received a reply...

Dear Courtney,

Please note that your contact has been passed to our complaints team for review. This will be processed in due course.

Regards,

POPLA Team.