Fistral beach - Initial Parking - POPLA Appeal Advice

YellowDandylion

Hello!

I've received a PCN - NtK and immediately went to the NEWBIES post and appealed using that template. Initial Parking have just rejected my appeal so I would like some advice on what to do next. I've tried my best to read through the Fistral beach forums and use these to help write my appeal - I found this one really helpful: https://forums.moneysavingexpert.com/discussion/6174684/fistral-beach-initial-parking-popla-appeal-advise 

I've included a copy of the PCN, I've redacted the information but the date of notice , date of contravention and date I received the notice are all within the 14 day period. Initial Parking state that the reason my appeal was rejected was because
"We can see that the motorist paid for 3 hours parking time but stayed an additional 21 minutes and XX seconds without payment. Therefore, the charge remains valid and payment is due."

I will split my response over a few posts if anyone would be willing to take a look and see if there's anything else I could add in or need to take out.
The main points are:

• The driver queued to get into the carpark and subsequently find a space
• The ticket machine only took cash and the driver struggled to get a signal to pay on the app (cash was used as the payment method)
• The driver had to queue to get out of the carpark as it was single file traffic in and out
• The driver was unaware that ANPR was in operation

I haven't mentioned in my appeal that one of the passengers in the car was 30 weeks pregnant at the time and that there was a toddler in the car which all adds to the amount of time take to get in and out of the car and pack it up etc (!) as I'm not sure if that would be relevant?

Thanks in advance for any help

Zbubuman

You dont need to obscure the contravention date or issue date ( we need this to check if it is PoFA compliant or if they are just trying it on). Same thing with the entry and exit times. 

YellowDandylion

This is a draft of my POPLA appeal :

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 - for a parking charge notice issued for the XXXX – was submitted and acknowledged by the Operator on XXX and rejected via an email 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. Grace Period: BPA Code of Practice – non-compliance 
2. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements 
3. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance 
4. Insufficient signage - There is insufficient notice of the role of ANPR data to issue a parking charge. 

1) Grace Period: BPA Code of Practice – non-compliance 
The BPA’s Code of Practice states (13.1) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA 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. Our 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.” 
 
BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''. 
 
(a) On arrival - the 'observation period': 
Upon entering the carpark, the driver had to queue to get into the carpark, drive around to find a free spot and then park . As it was school holidays, there were a vast number of people attempting to enter the car park to find a space and as a result, the driver was not able to park right away.
 
Time was then required to: 
i) find the parking signs and read them as they are not visible from all car parking spaces
ii) decide to park 
iii) pay for a ticket.

Upon locating the ticket machine and queuing to get to the front, the driver found that the ticket machine was cash only. The driver then went to the coffee shop to try and get change to use in the ticket machine, only to find that that the coffee shop was card only. Time was then taken to find sufficient signal to use the app to pay. The driver walked the length of the carpark, climbed the bank opposite the coffee shop and walked halfway back up the hill trying to obtain signal to pay for parking. Whilst the driver was attempting this, the passengers in the car were looking for change to try to be able to pay using cash. After queuing to use the ticket machine again, a ticket was purchased for 3 hours. The printed time on the ticket differs from the ANPR image which has been used to show that there has been an infringement.

(b) On leaving - the 'grace period' 
BPA's Code of Practice (13.2) states: ''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 (13.4) reiterates this fact: ''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.'' 

On leaving the carpark, the driver left the space within the time limit printed on the ticket which was displayed on the dashboard for the length of stay. The driver then had to queue to leave the car park as the road entering into / from the carpark was down to single file traffic due to the amount of vehicles parked on the side of the road and the volume of traffic entering and exiting the site.

Initial Parking has displayed on their PCN only the ANPR entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated. 
 
In an important case, 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) Fistral Beach, the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore the judge ruled there was no contravention of the terms and conditions. 
 
As such, on the XXXXX, the 21 minute time discrepancy between the ANPR capturing the vehicle entering and exiting the car park vs the length of time paid for counts as reasonable observational and grace period due to the reasons stated above.

I require Initial Parking to obtain my payment information from the ticket machine to show the times printed on the ticket.

2) No Evidence of Period Parked
 
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked, as opposed to attempting to read the terms and conditions before deciding against parking/entering into a contract and/or queuing to park/exit the carpark. 

Initial Parking’s Appeal Reply XXXX states,
“We can see that the motorist paid for 3 hours parking time but stayed an additional 21 minutes and 19 seconds without payment. Therefore, the charge remains valid and payment is due.”
 
Initial Parking’s Appeal Reply also states “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 XXXXX, the vehicle was parked without this payment being made.” By virtue of the nature of an ANPR system recording only entry and exit times, Initial Parking are not able to definitively state the period of parking. 
 
This was upheld in the decision for case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time IN the car park, and not the time parked. The judge ruled this was not against the terms and conditions of the signage. 
 
I require Initial Parking to provide evidence to show evidence of the time the vehicle in question was parked in a designated space on the date, time and location stated in the NtK.   
3) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance   The BPA Code of Practice point 20.5a stipulates that: 
 
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered." 
 
The PCN in question contain two close-up images of the vehicle number plate and two pictures of the front and rear of the car. Neither of these images contains a legible date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park.
 
The time and date stamp has been inserted into the box above the notice information, but are not legibly 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 Limited 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) Insufficient signage The BPA  states that ‘proper enforcement is dependant on clear signage that is visible from all points of the car park’. (BPA website) There is no clear sign at the entrance of the carpark or indeed throughout the carpark to let drivers know that ANPR is being used as soon as you drive on to the premises and, more importantly, charged from this point onwards.   Thanks again for any help  

YellowDandylion

Zbubuman said:

You dont need to obscure the contravention date or issue date ( we need this to check if it is PoFA compliant or if they are just trying it on). Same thing with the entry and exit times. 

Oh sorry - I read somewhere else that they could identify you from them - I'll repost now, thank you

Zbubuman

The other thing i would recommend is to go back and take some photos of the signs and layout of the signs. these companies are notorious for sending old stock photos of signs and site plans as part of their evidence pack. so by having your own photos you can challenge these if they are not the same or terms have changed, etc. 

Mine appeal is still ongoing atm, but they have tried the same tactic with me.  

Coupon-mad

Don't even try POPLA in this case.

Just IGNORE the £170 threatograms now.

LDast

YellowDandylion said:
Oh sorry - I read somewhere else that they could identify you from them

So what? You are in contact with them anyway. Just show the dates.

You have left out the following for your POPLA appeal:

The NtK does not fully comply with the requirements of PoFA. There is no invitation (or any other synonym of the word) for the keeper to pay the charge, as required in PoFA 9(2)(e)(i). If As they state in their blurb, it only applies subject to them complying to all the conditions of PoFA. They haven't, so lead the POPLA assessor by the nose to this ommission, quoting all the relevant parts of PoFA.

As operator has not fully complied with all the conditions of PoFA, the NtK cannot be PoFA compliant and therefore only the driver can be liable. You are appealing as the keeper.

You then need a section on the identity of the driver is not known and you put the claimant to strict proof that the person they are pursuing was the driver of the vehicle. Go on to state all previous bits from other successful POPLA  appeals mentioning Harry Greenslade et al.

If the NtK is not PoFA compliant, only the unknown driver is liable. The keeper is under no obligation to reveal the identity of the driver and will not be doing so. The only way that the operator can know the identity of the driver is if the keeper tells them, inadvertently or otherwise. Unless the operator can prove the identity of the driver (they can't unless you told them) then the PCN must be cancelled.

YellowDandylion

Front of PCN

YellowDandylion

Back of PCN

Zbubuman

cannot see from the photos on the letter. Are the photos date/time stamped ?  Same applies on the photo evidence on their website.

LDast

There appears to be tiny black strip along the top of the photos which probably contains the timestamp into. If it isn't, then the additional POPLA appeal point of the photos having been digitally altered is a breach of BPA CoP 21.5a and therefore the NtK has been issued incorrectly, quoting POPLA case 2413353469 where Assessor Gayle Stanton noted:

"I have reviewed the copy of the NTK provided by the operator and I am not satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice.

These images are not date stamped and after seeing the full images in the case file they appear to have been digitally altered or cropped to fit on the NTK. This is especially apparent on the colour image on the NTK."