PCN - Fistral Beach - Newquay - Popla Appeal - Initial Parking

maceson

Hi All,
Received this lovely PCN from Initial Parking recently. <b><i>imgur.com/gallery/TaMcn1p</i></b> As stated the driver entered the car park at 6.07pm, 23 minutes before the parking was free. Do I have anything to argue here or should I focus on the original points? 

I went through the internal appeal system at initial parking using the newbies template and was refused with the following:

Thank you for your appeal received on 15/09/2020 regarding the above detailed Parking Charge Notice. We have carefully reviewed the case and considered the points that you raised in conjunction with the facts and evidence available to me. On this occasion, your appeal has been rejected and we are satisfied that this Parking Charge Notice was issued correctly. Fistral Beach, Newquay is private land and is subject to a parking management scheme put in place by the operator at the landowner’s request. There are specific terms and conditions in place as part of this scheme. These terms and conditions are stated on the signs installed at the site, which are displayed in clear and prominent positions. The terms and conditions of the scheme at this location state that a valid payment must be made for the length of time the vehicle is parked on site. On 05/09/2020, the vehicle was parked without this payment being made. This was a breach of these terms and conditions.

Ultimately, it is the responsibility of the motorist to ensure that they seek out, read and comply with the terms and conditions of parking that are in place. By parking on site in breach of these terms and conditions, it has been agreed that the charge detailed on the signs will be paid. I appreciate that this may not be the desired outcome, however, you have now reached the end of our internal appeal process. The three options available are listed below: Your options 1) Pay the PCN at the reduced amount of £60.00 by 14 days. After this time the opportunity to pay at the reduced amount will no longer be available and the amount outstanding will rise to the full amount of £100.00. This will need to be paid by 14 days. Payment can be made online by phone or by post. Go to www.initialparking.co.uk, call 0333 023 0138. Payments can also be made by cheque or postal order made payable to Initial Parking Limited. Please ensure you write your Parking Charge Notice number clearly on the reverse. Please do not send cash through the post. Payment can be made using a debit or credit card by calling the automated payment line on 03330230138. For our full Complaints Procedure please visit www.initialparking.co.uk.

2) Make an appeal to POPLA (the Independent Appeals Service) online at www.popla.co.uk using the verification code at the top of this response. The only grounds for making an appeal are stated on the website and the appeal must be received by POPLA within 28 days of the date of this response. If you choose not to submit your appeal online please goto www.popla.co.uk for further detail or you can ask us for a form to complete. If you appeal to POPLA, we will suspend recovery activity on the PCN. The charge will not increase further until the appeal outcome has been determined. Please note that if you opt to appeal to POPLA and the appeal is unsuccessful you will be only able to settle the PCN at the full amount of £100.00. The opportunity to pay and the reduced amount will no longer be available. If you choose to pay the PCN you will not be able to appeal to POPLA. 3) If you do not make payment or submit an appeal to POPLA within the relevant timeframe, the outstanding PCN may be passed to an appointed debt collection agency for further action. All costs associated with this process will be added to the full PCN amount. More Information By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such, should you wish to appeal then you must do so to POPLA, as explained above. Yours sincerely, Initial Parking Limited

I am not sure whether to suck up and pay or push this further to POPLA as I am not sure which are the best points to argue? I have seen previously many people have been refused at the POPLA stage with Initial Parking. 

Additionally, there is a case argument here parking-prankster.blogspot.com/2014/03/waiting-for-space-is-not-parking.html that demonstrates that waiting in this car park does not constitute as parking, so combined with the grace period can I argue this? If so, how?

Some points I am considering to argue are here:

- Grace Periods & congestion
Mention that combined with trying to find a space etc in peak of season, 23 minutes is not adequate  to find a space.

- No Landowner Authority

- No evidence of period parked (PoFA 2012)

- Vehicle images in NtK don't meet BPA Code of Practice

- No planning permission for signs & ANPR camera

Looking for some guidance and would really appreciate your guys knowledge.
Cheers!
Maceson

Redx

Yes you can try all those legal arguments in a popla appeal

If Initial parking have complied with them all , you lose

It's really down to how popla view each point , accept it or dismiss it

Read previous Fistral beach popla appeals to see how they argued each point

Coupon-mad

Same as all the other Initial Fistral POPLA appeal cases you care to read, really.    Search the forum.

D_P_Dance

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the

scammer extra costs, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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 later this year,

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

twhitehousescat

D_P_Dance said:

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the

scammer extra costs, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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 later this year,

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

spam

maceson

Hi guys, I've drafted my POPLA appeal! Please give me some feedback and let me know if it's sufficient.

I am not sure how to include the 'Waiting for a space is not Parking. ParkingEye lose in court. Beware of snakes at Fistral Beach' article so any ideas would be useful.

Additionally, I am not sure if I should elaborate point 7. Surely only having 20 minutes to drive into the car park (which was busy), park up, read the terms and conditions of the car park, accept them, download an application, read the terms and conditions of the application, install it, sign up and then pay to park cannot simply be achieved in 20 minutes.
Let me know what you think!

Cheers,

Mason

Appeal re POPLA Code: x v Initial Parking Ltd 

Vehicle Registration: x 

POPLA ref: x

I, the registered keeper of this vehicle, received a letter dated 11/09/20 acting as a notice to the registered keeper. My appeal to the operator – Initial Parking Ltd – was submitted and acknowledged on 15/09/20 but subsequently rejected by a letter dated 16/09/20. 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 as listed below:

 

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

2.       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

3.       The ANPR System is Neither Reliable nor Accurate 

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

5.      Unclear signage. Additionally, no marked parking bay at the location nor boundary of the venue

6.      No legitimate interest in enforcing a charge

7.      Frustration of contract

 

1. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA’s 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: 

o   The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.

o   Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.

o   Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.

o   Who has the responsibility for putting up and maintaining signs.

o   The definition of the services provided by each party to the agreement.

2. 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 Code of Practice breach.

BPA’s Code of Practice (21.4) states that:

“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

● be registered with the Information Commissioner.

● keep to the Data Protection Act.

● follow the DVLA requirements concerning the data.

● follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

<link>

The ICO’s CCTV Code of Practice makes the following assertions:

“This code also covers the use of camera related surveillance equipment including:

• Automatic Number Plate Recognition (ANPR);”

“The private sector is required to follow this code to meet its legal obligations under the DPA. Any organization using cameras to process personal data should follow the recommendations of this code.” 

 

“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”

“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”

“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.” 

“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimize these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”

“Note:

... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”

“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”

 

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if Initial Parking Ltd wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that Initial Parking Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require Initial Parking Ltd to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”. 

The ICO’s CCTV Code of Practice goes on to state:

“5.3 Staying in Control

Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:

• tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

“7.6 Privacy Notices

It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.

One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.” 

 

Initial Parking Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Initial Parking Ltd has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, NtK, reminder letter or rejection letter despite there being a Data Protection heading on the back of the NtK. This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful.

As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

maceson

3. The ANPR System is Neither Reliable nor Accurate 

Initial Parking Ltd’s NtK simply claims that the vehicle entered “05/09/2020 at 18:07:09” and departed 05/09/2020 at 19:07:29”. Initial Parking Ltd states the images and time stamps are collected by its ANPR camera system installed on site. 

In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because: The British Parking Association DOES NOT AUDIT the ANPR systems in use by parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks. 

As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits: 

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says: 

"You were concerned about a comment from the POPLA assessor who determined your case which said: 

 

"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate" You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us. 

 

This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.

 

POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says: 

''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.'' 

Our auditors check operators compliance with this Code clause and not the cameras themselves.'' 

Secondly, ANPR data processing and/or system failure is well known and is certainly inappropriate in a busy, rural area such as the location in question. The BPA even warned about ANPR flaws: 

<link>

''As with all new technology, there are issues associated with its use'' and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking events. They state that: ''Reputable operators tend not to uphold charge certificates issued in this manner''. 

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO: 

<link>

 

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints. 

POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin. 

Please show the above email from Steve Clark, to your Lead Adjudicator. 

Kindly stop assuming ANPR systems work and expecting consumers to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its inherent failings is very readily available.

 

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

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Inital Parking Ltd’s signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

There is no information indicates that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. 

 

5.       Unclear signage. Additionally, no marked parking bay at the location nor boundary of the venue

 

BPA’s Code of Practice (18.2) states:

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

 

BPA’s Code of Practice (18.3) states:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

 

BPA’s Code of Practice (Appendix states:

“If you think there are other circumstances where it is impractical or undesirable to have an entrance sign, you must tell us in advance and get our approval to amend the sign or not have one.”

 

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material”

 

Figure 1 below shows the only entrance to the Fistral Beach Car Park. Initial Parking issue fines against spaces beyond this point. 

 

Included is the location of the ANPR. As a result, all vehicles passing through this point can be potentially captured by the ANPR and recorded an entry and exit time that are interpreted by Initial Parking Ltd the “parking time”.

 

We can conclude from Figure 1 that:

 

·       There is no clear sign indicating the entrance/exit of the venue

·       Signage such that there is at the entrance / exit does not tell drivers that the car park is managed and that there are terms and conditions they must be aware of.

·       There is no ground boundary marking indicating the start and end of the venue

·       There is no lighting on the signage, the closest public light is further down the road

·       All items above indicate the contravention of BPA’s Code of Practice (18.2) which states: “you must also have a standard form of entrance sign at the entrance to the parking area.” and (18.3): “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

 

In addition to the lack of entry signs, Initial Parking Ltd’s signage within the car park is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read. It clearly violates BPA’s Code of Practice (18.3) and appendix B.

 

The image in Figure 2 shows a close up of a car parking sign in the same lighting conditions as the date/time for which the PCN has been issued. It is unremarkable far away and impossible for any driver to read from that distance. Besides the absurd amount of distance this sign is away from the parking spaces, it is small, not lit and not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car. 

 

From the evidence shown above, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put Inital Parking Ltd to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

 

The letters seem to be no larger than .40 font size going by this guide:

 <link>

 

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

 <link>

 

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

 

...and the same chart is reproduced here:

 <link>

 

'When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

 

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

 

When the driver arrived at the car park it was impossible to read the sign in figure 2, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (sporadically spaced, recessed back from the road amongst bushes) or non existent.  As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

 

Bearing all the evidence above in mind, there was categorically no contract established between the driver and Initial Parking Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

 

6. No legitimate interest in enforcing a charge

Contrary to the Beavis case, Fistral Beach is a pay car park; in the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifiable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty. A key point from the Beavis case was that the charge was necessary to deter overstaying; if penalties were not issued then the car park would be unfairly used. So in this case the opposite would apply; as Fistral Berach is a paid car park as per ParkingEye Vs Cargius there is no legitimate interest, and any charge is deemed an unenforceable penalty, particularly as payment was attempted using the pay by phone option.

7. Frustration of Contract
In this case an attempt to make payment was made using the pay by mobile option as indicated on the Initial Parking sign. However, due to a number of bugs from the application, once I had downloaded, installed and used the application, in addition to driving, finding a space, parking and reading the terms and conditions of both the application and the car park, it was already free to park at Fistral Beach. This represents a frustration of contract as the circumstances were beyond the Driver’s control (and created by the Operator’s negligence).

Coupon-mad

Remove this horrible intro and #2, #3 and #4 that are all really old and won't win at POPLA:

I, the registered keeper of this vehicle, received a letter dated 11/09/20 acting as a notice to the registered keeper. My appeal to the operator – Initial Parking Ltd – was submitted and acknowledged on 15/09/20 but subsequently rejected by a letter dated 16/09/20. 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 as listed below:

1505grandad

A heads up  -  check that you are quoting from BPA CoP that covers the parking event (V8)

maceson

Cheers guys, will update tomorrow. Thanks!

maceson

What do you mean 1505grandad? Have I quoted the wrong version of the BPA CoP?