Please help 5 PCNs - NTK Fistral Newquay

Umkomaas

Is this something I should note for the second stage appeal (after I get the POPLA code)?

No. It applies should it become an attempted court claim. I'd guess that it won't, given that these are new kids on the block, plus the absence of landowner agreement to pursuit via the court system. Others will correct me, but I can't recall any Fistral case (regardless of which PPC was in situ) progressing to court.

On an old post from parking prankstar on a different website, about 5 years old, I found out that the Car Park is leased from the council to Britanic Industries. Contact Jon Briant Tel 01637 872 489. Not sure if this is true/in date info.

You need to do your own research on this. We don't keep tabs on every car park that comes in front of us on a dynamic basis. Jon Briant is a name I associate with Fistral, but that doesn't mean he's still involved there.

Contact the local authority and ask who pays the non-domestic rate on the car park, that might give you an up to date picture. Also, Google 'Jon Briant Companies House' to see what current positions the guy holds. As an alternative, pay the Land Registry £3.50 and they will give you precisely who the landowner is now.

Coupon-mad

Why not do the complaint in Mum's name as well, as that would be a safe position and you could write 'as her' saying how upset she is and showing a copy of her Blue Badge & saying the signs & machines are just not clear at the disabled bays and people with limited mobility are not expected to traipse all around a car park seeking out signs & a machine if there are none adjacent to the Blue Badge bays and no arrows alerting them to a machine to pay.

Fruitcake

Have you asked the DVLA who accessed the keeper's personal data and when? This service is free.

The PPC has to make an individual request for each and every PCN. They can't reused data from a previous request, not even the two PCNs on the same day.
It would be interesting to see if the two on the same day resulted in one, or two requests to the DVLA.

As for signage, the BPA CoP says that at lease one sign visible from a car parked in a disabled bay must be visible without the need for an occupant to leave the vehicle. You should check the position of signs relative to the space where the car was parked.

The contract fails the signature requirements of The Companies Act 2006,

https://www.legislation.gov.uk/ukpga/2006/46/section/44

Fistral contract provided by poster klm on another thread, and quoted by Redx in post 34.

https://imgur.com/a/c5XMstZ

I believe that: -

There should be two signatures from each company, not one.

Their position within the company should be stated to ensure they are authorised signatories.

The names should be stated since the signatures are illegible.

Umkomaas

It would be interesting to see if the two on the same day resulted in one, or two requests to the DVLA.

I think two different vehicles are involved.

Blue222

Hi Coupon Mad
I have my popla codes for the two PCNs that i will appeal due to timing. I am not sure what the reason is this on the popla website? Options are
My vehicle was stolen
I was not improperly parked
The amount requested is incorrect
I was not the driver or registered keeper of the vehicle at the time of the alleged parking.

Other (less likely to be successful):
Extreme circumstances prevented me from parking correctly
Other

Thank you

Umkomaas

Blue222 wrote: »

Hi Coupon Mad
I have my popla codes for the two PCNs that i will appeal due to timing. I am not sure what the reason is this on the popla website? Options are
My vehicle was stolen
I was not improperly parked
The amount requested is incorrect
I was not the driver or registered keeper of the vehicle at the time of the alleged parking.

Other (less likely to be successful):
Extreme circumstances prevented me from parking correctly
Other

Thank you

Did you miss this in the NEWBIES FAQ sticky, post #3? All your answers are in the sticky.

These then get saved as PDFs and uploaded to POPLA under OTHER (ONLY) - do not think you only have 2000 characters in some box on the POPLA wepage!

http://parking-prankster.blogspot.co.uk/2015/09/new-popla-process.html

Blue222

Dear Umkomaas and Coupon Mad, I would be grateful if you can check my popla appeal in case I should add or delete anything. Thanks in advance. I have checked Newbies as above and took out grace periods as initial have got my entry and exit times that don't therefore show I was within grace period....

POPLA Ref No.xxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Initial Parking Ltd,. The charge is levied despite the driver not being identified. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered. I request that you uphold my appeal based on the following:

1 The NTK is non-compliant with the POFA

As per POFA 2012, schedule 4, paragraph 9, sub-paragraph (4),(5) & (6)
(4)The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

As per above, since the contravention date is 28th July, & the NTK should have arrived within 14 days The keeper cannot be liable due to the timing since the date of notice was Thursday 8 Aug 2019 and the Date of contravention was 28 July 2019. The parking charge was posted on a Thursday 8th August and as such, were not deemed delivered until Monday 12th August at the earliest, and so these were posted too late for keeper liability under the POFA. This is not within PoFA parameters. The Notice to Keeper must be delivered within 14 days of the day immediately following the parking event. The notice is deemed delivered 2 working days later. The calculation for the two above dates is as follows:

Day following contravention - Monday 29/07 (Day 1)
Day notice given - Thursday 08/08 (Day 11)
Day 12 - Friday 09/08
Days 13 and 14 - Saturday and Sunday
Monday 12/08 (day of deemed delivery, 2 working days after issue) is Day 15, therefore, too late for keeper liability. As this requirement set out in schedule 4, paragraph 9, subparagraph 4, 5 & 6 of the Protection of Freedoms Act 2012 has not been complied with, therefore there can be no keeper liability.


2. 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 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 CoP) 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 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
Also Initial Parking have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. Initial Parking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.





3. Insufficient signage. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

Initial Parking Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visable in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visable to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
Following receipt of the charge, I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Also ensuring that the car park has enough room to allow oncoming vehicles to pass by just enough to ensure that the driver while driving can concentrate on other surrounding with minimum safety.
The Entrance road to the car park is very narrow and the oncoming vehicles trying to get out of the carpark have to pass by very close, due to narrow road and can easily hide away the parking signs from the view angle on the driver entering the car park while driving. It was a beach car park, very sunny and busy day, all tourists were walking along the car park with their little kids running around and hence driver must concentrate more on the safety of public.
Also, It has to be validated / provide evidence that the signage are at appropriate height feasible to be read without straining anyone’s eye on a bright sunny day and not causing the driver to strain their eyes and risk their onward journey ?
I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility especially as a disabled person was merely visiting the beach. They knew nothing off the fact that car park was not free to disabled people. There were no signs when entering the car park alerting people to this requirement. See disabled badge photos evidence below.
There may be signs at the boundaries but not all areas are well-signed as a car drives through the middle of the site, so unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity of merely dropping off, picking up and leaving within minutes is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

Redx

4) add a numbered bullet point menu just before 1) , by editing your last post

Umkomaas

Thanks in advance. I have checked Newbies as above and took out grace periods as initial have got my entry and exit times that don't therefore show I was within grace period....

What are the entry and exit times for the 2 POPLA appeals you are submitting using 'No Keeper Liability'? For how long was each ticket purchased?

The rest of your POPLA appeal (a separate one for each ticket, I hope) looks OK. But if you can beef up either (or both) with a Grace Period appeal section, so much the better.

Blue222

Dear Umkomaas, Redx and Coupon Mad,
Thank you.
The entry and exit times were always around one hour / hour and half so grace doesn't apply. So shall I leave it out?