Initial Parking - Unpaid Tariff Time

toddis · 22 May 2024 at 1:29PM

I received a PCN from Initial Parking for overstaying on Wendron Street, Helston location, the car park is ANPR operated.

I appealed as the keeper and their rejection stated:

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 30/04/2024, the vehicle was parked without this payment being made. This was a breach of these terms and conditions.

We can see that you paid for 1 hours parking time but stayed an additional 15 minutes and 32 seconds without payment. Therefore, the charge remains valid and payment is due.

The driver paid for 1hrs parking 4 mins after arriving so according to BPA's Grace Period, the driver didn't overstay.

I've read through many cases on the forum and have adapted a recent case. I'd be grateful if I could get some feedback for my POPLA appeal.

As the registered keeper of the above vehicle, I received a letter dated 3rd May 2024 acting as a notice to the registered keeper. My appeal to the parking operator Initial Parking Ltd. was submitted and acknowledged on 17th April but subsequently rejected by an email dated 19th April.

I contend that as the keeper I 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

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:

“The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.”

BPA’s Code of Practice (13.3) states that:

“Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.”

BPA’s Code of Practice (13.4) states that:

“Unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for specific users e.g. Blue Badge holders, pick up/drop off or where parking is prohibited such as hatched areas in front of emergency exits, or on entry and exit ramps etc.”

The BPA Code of Practice (13.3) clearly states that the Grace Period should be a minimum of 10 minutes.

2. No evidence of period parked –

The NTK does not meet PoFA 2012 requirements and contrary to the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. 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”.

Initial Parking Ltd's NTK simply claims that the vehicle “arrived at 10:26:52 and departed at 11:42:24. At no stage does Initial Parking Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012. Initial Parking Ltd uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Initial Parking Ltd, however, does not provide any direct evidence of its alleged violation. It is not permissible for Initial Parking Ltd to substitute “entry/exit” or “length of stay” in place of the PoFA requirement - “period of parking” and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Initial Parking Ltd are not able to definitively state the period of parking. I require Initial Parking Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NTK.

3. Vehicle images contained in PCN are non-compliant with BPA Code of Practice

The BPA Code of Practice, Point 21.5a stipulates:

b) the images bear an accurate time and date stamp applied at the point the picture was taken;

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the letter underneath (but not part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Initial Parking Ltd. to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

4. 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 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).

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