Need to find a winning POPLA appeal Initial Parking

KeithP

D_P_Dance said:

There are probably hundreds of Fistral Beach PCNs  on here, but you have to look for them.  Start here,

https://www.which.co.uk/consumer-rights/letter/letter-before-small-claims-court-claim

How does the Consumers Association website help anyone find Fistral Beach threads?

flossykazzie

 Hi All

Please let me know if this is the type of thing to submit, it's a very early draft, I know that I have to edit it and add more etc etc etc, but just want confirmation please, many thanks. 

Appeal re POPLA Code: [XXX] v Initial Parking

 Vehicle Registration: [XXX]

POPLA ref: [XXX]

I, the registered keeper of this vehicle, received a letter dated [XXX] acting as a notice to the registered keeper. My appeal to the operator – Initial Parking  – was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated [XXX]. 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)          No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

2)          Grace Period: BPA Code of Practice–non-compliance

There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location nor boundary of the venue

3)          Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach

4)          No Evidence of Period Parked – NtK does not meet PoFA2012 requirements

5)          Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

6)          The ANPR System is Neither Reliable nor Accurate

7)          The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

1. 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, 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 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).

 

 

Section 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.

https://imgur.com/a/c5XMstZ


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

44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

The alleged contract has not been executed in accordance with paragraph 1 because it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

In addition, the signatures are illegible and therefore you require Initial Parking to prove they are actually employees of the two companies concerned as there is no indication on the document that they actually work for the two named companies or in what capacity.

As such the contract is not valid in accordance with the above Act of Parliament, and thus the PCN is also invalid.

 

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 (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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.”

BPA’s Code of Practice (13.2) states that:  

“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’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.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.

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.”  

It is therefore argued that the duration of visit in question (which Initial Parking claim was [xxx]) is not an unreasonable grace period, given:  

. a) The site is not well lit and relies on nearby street lighting as its primary source of lighting.  

. b) Visibility was hindered further as the site was in darkness at time of the visit – [xxx]

. c) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

. d) There is no marked parking bay through out the venue which causes confusion to the applicability of the Initial Parking  contract, that was never entered into in the first place.

. e) The failure to light signage so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.

. f) The lengthiness of Initial Parking signage (in terms of word count) all written in tiny text the across of the sign (see Figure 4).

All factors discussed above serve merely to increase the time taken to:  

l Locate a sign indicating entrance l Locate a sign containing the terms and conditions l Read the full terms and conditions s l Decipher the confusing information being presented l Decide not to park and therefore not entering into a contract l Return to car and safely 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 (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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.”

BPA’s Code of Practice (13.2) states that:  

“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’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.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.

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.”  

It is therefore argued that the duration of visit in question (which Smart Parking Ltd claim was [xxx]) is not an unreasonable grace period, given:  

. a) The site is not well lit and relies on nearby street lighting as its primary source of lighting.  

. b) Visibility was hindered further as the site was in darkness at time of the visit – [xxx]

. c) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

. d) There is no marked parking bay through out the venue which causes confusion to the applicability of the Smart Parking Ltd’s contract, that was never entered into in the first place.

. e) The failure to light signage so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.

. f) The lengthiness of Smart Parking Ltd’s signage (in terms of word count) all written in tiny text the across of the sign (see Figure 4).

All factors discussed above serve merely to increase the time taken to:  

l Locate a sign indicating entrance l Locate a sign containing the terms and conditions l Read the full terms and conditions in the darkness l Decipher the confusing information being presented l Decide not to park and therefore not entering into a contract l Return to car and safely leave the car park

             

 

             

 

D_P_Dance

How does the Consumers Association website help anyone find Fistral Beach threads?

Oops,  wrong link.  Try this one. 

https://www.google.com/search?q=fistral+beach+MSE&oq=Fistral+beach+MSE&aqs=chrome.0.69i59j33.9641j0j15&sourceid=chrome&ie=UTF-8

Fruitcake

nosferatu1001 said:

No, you embed anything and everything, and a link is only a back up. So you would include an excerpt of the requirement from the CoP within your appeal. Then you have a link to the real one as a backup so they can see your source. 
I dont know where youa re getting a copy of their landowner contract from - do you have it already? VERY unusual if so!
Point 2 - no, frustration of contract bears no relation to signage. SIgnage is "i couldnt have accepted a contract as i never saw a contract (sign)" - frustration is you accept there may have been a contract, but it was frustrated because of the queue to leave. You tried to leave, and in fact DID leave the parking *space* within the time, and were waiting at the exit. You would obviously cite examples where this was shown not to be a reason to issue a ticket!

I provided a link to a thread where the contract was supplied by another poster from the same car park.

Fruitcake

You haven't included frustration of contract, queuing is not parking.

Have you used the Grace Periods point from the latest version of the BPA CoP or an earlier one.

What have Smart Parking got to do with this?

Yes it is the sort of thing but you need to show us what you intend to use, not something you are going to edit later, otherwise the regulars will be wasting their time on what you have posted now.

flossykazzie

Hi Fruitcake
Thank you for your comments, i understand what you are saying,  I will continue to work on it, then post it here for critique before submitting. Can I include a copy of the contract that you supplied the link to.
I do appreciate everyones help and advice, thank you.

Coupon-mad

Yes you can include a copy of the contract as it is in the public domain.

flossykazzie

Hi All

I was hoping to post the POPLA appeal for here for critique but it is saying that is 13643 characters too long and will not let me do it, can you please tell me how I can get around that, also how do you embed and attach links, thank you

Umkomaas

Break it up over a number of posts. 

You need to check your word processor Help page about how to embed images in a document. 

Links - copy and paste the URL. 

flossykazzie

Ok, thanks I will do, here are the first couple of pages.

Appeal re POPLA Code: [XXX] v Smart Parking Ltd

Vehicle Registration: [XXX]

POPLA ref: [XXX]

I am the registered keeper of this vehicle, received a letter dated [XXX] acting as a notice to the registered keeper. My appeal to the operator – Initial Parking  – was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated [XXX]. I contend that, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1)     Grace Period: BPA Code of Practice–non-compliance

2)     There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location nor boundary of the venue

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

4)     Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach

5)     No Evidence of Period Parked – NtK does not meet PoFA2012 requirements

6)     Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

7)     The ANPR System is Neither Reliable nor Accurate

8)     The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

 

 

1.     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 (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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.”

BPA’s Code of Practice (13.2) states that:  

“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’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.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.

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.”  

It is therefore argued that the duration of visit in question which Initial Parking claim was 3 hours 50 mins is not an unreasonable grace period, given:  

a) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

b) There is no marked parking bay through out the venue which causes confusion to the applicability of the Initial Parking contract that was never entered into in the first place.

c) The lengthiness of Initial Parking signage (in terms of word count) all written in tiny text the across of the sign.

All factors discussed above serve merely to increase the time taken to:  

l Locate a sign indicating entrance l Locate a sign containing the terms and conditions l Read the full terms and conditions in the darkness l Decipher the confusing information being presented l Decide not to park and therefore not entering into a contract l Return to car and safely leave the car park

 

On the day in question the actual parking period was paid for and due to circumstances beyond the drivers control on leaving the bay an emergency had to be dealt with as in changing a flat tyre and after the event queueing to leave the site on a very busy day.