Popla appeal for overstay

helpjack

Hi,
I received a PCN from Future Parking Ltd for an overstay at a fair car park. The ticket machine is pay and display but there are ANPR cameras at the entry/exit which records the parking time from when you enter and exit. The NtK was issued within 14 days and I sent the blue template in response. FPL replied by email  on 15th September rejecting the appeal and providing a POPLA code. In their appeal rejection they state 'We give all car park users a 10 minute grace period to: arrive, park, purchase a ticket and depart the car park. Any time over this 10 minutes is seen as overstay and therefore the parking charge notice has been issued correctly.'  This seems a bit unreasonable because someone using the car park does not know what time the camera has recorded them entering the car park. In our case, it was a very busy Saturday and it took 13 minutes to wait for other cars, find a space, park, and then walk to the ticket machine and queue for a ticket. A member of the party was heavily pregnant at the time and struggling a bit. I don't know whether this can be taken into account but this is what led to the overstay the other end. 

I have drafted a POPLA response but not sure how to upload it as there seems to be a character restriction on the new forum.

Many thanks

1. No keeper liability

2. The entrance signs are inadequately positioned, and signs in the car park are not prominent or clear from all parking spaces, and signs are confusing & ambiguous in nature

3. The entrance signs in the car park do not detail grace periods and Future Parking Ltd measures parking time from vehicle entry, not when payment is made. This is not made clear in the signs.

4. No Evidence of Landowner Authority

5. No evidence of a “period of parking”, NtK fails to meet POFA requirements

Le_Kirk

Go to the NEWBIE sticky and read the third post and you will find loads of information and ammunition for a loooooong POPLA appeal.  Use all the points you can.

KeithP

Then post your proposed appeal here, over several posts if necessary.

Coupon-mad

Future Parking's Director is a 20 year old!

Hello Joe:

https://beta.companieshouse.gov.uk/company/10884354/officers

In our case, it was a very busy Saturday and it took 13 minutes to wait for other cars, find a space, park, and then walk to the ticket machine and queue for a ticket. A member of the party was heavily pregnant at the time and struggling a bit. I don't know whether this can be taken into account but this is what led to the overstay the other end. 

This is what you say in your first point to POPLA, in your own words but REALLY DETAILED as to why in your case it took 13 minutes before the payment completed.  Append as evidence, the NCP v HMRC case where it says the contract in a PDT machine car park only commences when the money hits the machine and the 'green button' is pressed.  Google it or search the forum for it.

Don't show us the template POPLA stuff from the NEWBIES thread, only the bits you write yourself.

It is best if you embed your own signage photos into the signage section, and not rely on template words only.

Have you already blabbed about who was driving/parked?  Shame if so, likely to have been a winning point if you hadn't.

helpjack

Thanks for the advice all. I'll work on those specific points and post when updated.
Wow, 20 years old. Maybe I'm missing a trick and should set up a parking company!
Unfortunately, its a bit of a trek back to the location with regard to pictures of signs. That might be something we have to forego.
The only communications that have been sent are the blue template. I have contacted the land owner who has apologized but said its out of their hands. I have kept all communications as registered keeper so hopefully that is ok?

Le_Kirk

You could try Google Street View to see if it features any signs.

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.

Coupon-mad

Can you show us the front and back of the NTK please? I want to know if Joe understands and uses the POFA or not.

helpjack

Hello,
This isn't my NtK but I found it on the forum when I was searching for similar cases and my NtK is completely identical.Sorry for being a bit lazy, I will upload mine when I get a chance later today. According to the previous assessment it is POFA compliant. The only issue I thought is that it doesn't actually mention that a ticket was purchased and therefore doesn't describe the overstay and the actual amount of time the car was parked.
https://imgur.com/WchXB5u
https://imgur.com/Iua9s8z
https://forums.moneysavingexpert.com/discussion/6006896/pcn-future-parking-limited
Thanks

Coupon-mad

That is a POFA PCN.

helpjack

Hello,
This is the edited highlights of the POPLA appeal. I've listed the sections I've included but only actually included bespoke paragraphs:

1. The entrance signs in the car park do not detail grace periods and Future Parking Ltd measures parking time from vehicle entry, not when payment is made.

2. No keeper liability

3. The entrance signs are inadequately positioned, and signs in the car park are not prominent or clear from all parking spaces, and signs are confusing & ambiguous in nature

4. No Evidence of Landowner Authority

5. No evidence of a “period of parking”, NtK fails to meet POFA requirements 

1.  The entrance signs in the car park do not detail grace periods and Future Parking Ltd measures parking time from vehicle entry, not when payment is made

No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of 28 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking commenced or ended.

The driver of the car at the time was captured by ANPR cameras driving into the car park at 12:35:20 and driving out at 15:03:21 on the same date. Future Parking Ltd measures parking from time from vehicle entry, not when payment is made. It is very clear from the evidence that Future Parking Ltd have failed to uphold the minimum grace periods set out in the BPA Code of Practice. The driver will not know what time the camera has recorded entry and the first point at which a time is provided for the driver’s reference is when a ticket is purchased. This does not allow for the time taken to wait for other cars; if they are queuing for a space, then locate a free parking space, park in the space and then locate and walk to the ticket machine and queue for a ticket. These circumstances are exacerbated by the day and time. In this case, a busy Saturday lunchtime. It is also worth noting that road works were taking place on the A451 directly outside the entrance/exit to the car park and this was delaying ingress and egress to the car park. Additionally, a member of the party was heavily pregnant. The total time exceeded was 15 minutes after the parking period had ended on the ticket. This was a result of the pregnant person requiring an emergency personal needs break and was struggling to keep up with the rest of the party. These few minutes are well within what an ordinary independent person assessing the facts would consider reasonable.

The BPA Code of Practice (13.2) states that parking operators "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." The signage is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. 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,” he explains.

“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.”

Furthermore, in the NCP v HMRC case it states that:

“The customer finds that she only has change of a pound coin and a fifty pence piece and puts these into the pay and display ticket machine. The machine meter records the coins as they are fed into the machine, starting with the pound coin. When the fifty pence piece has been inserted and accepted by the machine, the machine flashes up ‘press green button for ticket’ which the customer does. The amount paid is printed on her ticket, as is the expiry time of one hour later. The customer displays the ticket in her car and leaves the car park.”….

“The ticket issued to a customer states the full amount paid, including any overpayment. There are no barriers at a car park of this type and a customer could press a red button to cancel the transaction at any time until the green button is pressed for the issue of a ticket and drive away without paying anything.”…

“The payment, or promise to pay is not a precondition for the acquisition of the service. In the present case, the money must be paid to NCP before the right to park your car can be acquired.” Therefore, the contract for parking only commences when money has been inserted into the machine and green button has been pressed. Not when the car enters the car park.

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“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.”

Future Parking Ltd advise ‘We give all car park users a 10 minute grace period to: arrive, park, purchase a ticket and depart the car park. Any time over this 10 minutes is seen as overstay’. Therefore, Future Parking Limited are not complying with DFT guidelines by combing the grace period at the beginning of the parking period with that at the end of the parking period. Additionally, extra allowance should be made for individual circumstances which is not limited to disability. In this case late stage pregnancy which explains the overstay at the end of the parking period from the minimum 11 minute grace to 15 minutes.

5. No Evidence of “period or parking” – NtK fails to meet PoFA 2012 requirements

Contrary to the provisions of the BPA Code of Practice, there is no record to show that the vehicle was ever even parked. The only evidence provided by Future Parking Ltd was that of images of a moving vehicle allegedly entering and leaving the property, and at times claimed by Future Parking Ltd.

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;”

The Notice to Keeper from ParkingEye, only states:

“The Funfair, Stourport-on-Severn”,

Time in car park 2hours 28minutes,

Arrival time 22/08/2020 12:35,

Departure time 25/08/2020 15:03

The Future Parking Ltd NtK simply states Duration with two small photographs and two lines of text, showing a moving vehicle entered the property at 12:35 and exited the property at 15:03.

No evidence of any actual parking is provided, and the PERIOD OF PARKING is not specifically stated (as required by PoFA 2012), as it is simply not known by Future Parking Ltd

By virtue of the nature of an ANPR system recording only entry and exit times, Future Parking Ltd are not able to definitively state the period of parking.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which again states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

I require Future Parking Ltd to provide evidence to show the vehicle in question was physically parked on the date/time (for the duration claimed) and at the location stated in the NtK.

Also, as ‘grace periods are of significant importance in this case, and the parking charge is founded entirely on two images of the moving vehicle allegedly entering and leaving the car park at specific times cited by Future Parking Ltd, it is vital that Future Parking Ltd produces the evidence of an actual period of parking to comply with POFA.

Due to the NtK failing POFA 2012, no keeper liability can be invoked.