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  • FIRST POST
    • G0ldenballz
    • By G0ldenballz 13th Jun 19, 12:35 PM
    • 5Posts
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    G0ldenballz
    PCN Template rejection
    • #1
    • 13th Jun 19, 12:35 PM
    PCN Template rejection 13th Jun 19 at 12:35 PM
    Hi,
    I got a notice from Initial parking this week, after failing to notice the parking restrictions. The vehicle was registered as being in there for 27 minutes, The driver took a very slow drive to the bottom car park, jumped out to grab a few photos and then drove off. They didn’t get a ticket as they thought it was a Pay & Display.

    There were passengers who could move the car if necessary.

    In the post 2 days ago, I, as the registered owner, have had a parking charge notice from Initial Parking. £60 if paid within 14 days.

    I found the template to use and submitted my appeal.

    They have given me a POPLA verification code and rejected my appeal.

    Can anyone help me please?
    Thanks
    Last edited by G0ldenballz; 13-06-2019 at 5:32 PM.
Page 1
    • Quentin
    • By Quentin 13th Jun 19, 12:40 PM
    • 40,482 Posts
    • 24,534 Thanks
    Quentin
    • #2
    • 13th Jun 19, 12:40 PM
    • #2
    • 13th Jun 19, 12:40 PM
    Everyone is asked to read up on this in the newbies FAQ thread near the top of the forum before starting a new thread

    Go there now to learn about the game you are now caught up in and how to deal with this

    You need to break up your post into paragraphs. It's too much of s wall of text to read

    If you have any questions on how to deal with this after studying the FAQ then post here
    • Fruitcake
    • By Fruitcake 13th Jun 19, 12:59 PM
    • 40,678 Posts
    • 90,304 Thanks
    Fruitcake
    • #3
    • 13th Jun 19, 12:59 PM
    • #3
    • 13th Jun 19, 12:59 PM
    Edit your post to remove information about who did what. Only ever refer to The Driver and The Keeper who are two different people.

    Please do break your post up into readable paragraphs.

    Then re-read the sticky thread for NEWBIES and construct your PoPLA appeal using all the relevant points from post 3 of the NEWBIES.
    Check the wording of the NTK to see if is or isn't PoFA compliant.
    Get signs of the site and signage as well.

    Post your draft here for checking before you submit it.

    In future don't assume you can use someone else's land without paying. This is the reason why these scammers exist.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 14th Jun 19, 1:16 AM
    • 76,841 Posts
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    Coupon-mad
    • #4
    • 14th Jun 19, 1:16 AM
    • #4
    • 14th Jun 19, 1:16 AM
    You will win at POPLA as long as you clearly set out why Initial's NTK is non POFA.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • G0ldenballz
    • By G0ldenballz 20th Jun 19, 1:02 PM
    • 5 Posts
    • 1 Thanks
    G0ldenballz
    • #5
    • 20th Jun 19, 1:02 PM
    • #5
    • 20th Jun 19, 1:02 PM
    Ok here is my attempt from the Sticky section Fruitcake suggested, a really helpful response to me first message. Can I say the Newbie Sticky post is very informative, so thank you Coupon-Mad for all your efforts in producing and sorry for starting a new thread regarding my rejection.




    Its a little daunting to try to understand all the wording and laws and being told on the first reply to "learn the game I am caught up in" almost made me just pay the fine. But in googling Fistral Beach Car Park and seeing all the terrible reviews from people being hit by charges carried on reading the useful sticky!








    On the DATE, Initial Parking Ltd. issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for an “Unpaid Tariff Time”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.









    As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

    1. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

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

    3. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

    4. Vehicle Images contained in PCN: BPA Co de of Practice – non – compliance

    5. ANPR Accuracy and Compliance







    Please see below for details

    1. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.


    At no point have Initial Parking provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

    I have contested this with Initial Parking with regards to their PCN reference REFERENCE, but they have written to me (dated DATE) to say I have been unsuccessful and provided POPLA reference REFERENCE.



    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.



    Contained within Initial Parkings appeal rejection they themselves admit that “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”. Without knowing who the driver was, they are passing this responsibility on to myself as the keeper. (I do however raise further questions relating to their reference to “parking” under section 3. No Evidence of Period Parked below)


    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.









    Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability


    'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:


    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''











    2. 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

    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 authorised on the material date, 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 CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

    Paragraph 7 of the BPA CoP 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











    3. No Evidence of Period Parked – NtK does not meet the PoFA 2012 requirements



    Contrary to the mandatory provisions of 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. Furthermore, 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 Initial Parking Notice to Keeper (NtK) shows no parking time, merely two images corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. The Notice to Keeper states: “Entry Details [DATE] [TIME] and exit details [DATE] [TIME].” These times do not equate to any single evidenced period of parking. By Initial Parkings own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states; “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”



    At no stage do Initial Parking explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. My appears that Initial Parking are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay. It is not in the gift of Initial Parking to substitute “entry/exit” 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 are not able to definitively state the period of parking. I require Initial Parking 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










    4) 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 contains two close up images of the vehicle and two images of the vehicle number plate. None 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 NtK on the front page, not on the images. The vehicle number images have also been cropped to display the number plate, the rear number plate has been substituted with the front number plate in error, a mistake on Initial Parkings part, so what other mistakes may be included on their NtK. 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.









    5) ANPR Accuracy and Compliance
    I require Initial Parking Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that Initial Parking Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    So, in addition to showing their maintenance records, I require Initial Parking Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

    In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
    ''21 Automatic number plate recognition (ANPR)
    21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
    21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
    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.
    21.4 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.''




    In the appeal rejection they shared a version of the Terms and Conditions which is a really poor quality and almost ineligible, and it doesn't give the PCN amount, so I plan on sharing that with them also.




    Also I find it very strange that they quote I can complain to the Ombudsman Service, but they do not agree to participate in the alternate dispute resolution service.
    • Coupon-mad
    • By Coupon-mad 20th Jun 19, 11:49 PM
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    Coupon-mad
    • #6
    • 20th Jun 19, 11:49 PM
    • #6
    • 20th Jun 19, 11:49 PM
    Remove #5, as it means nothing to POPLA.

    Move #3 up to be point #1 but make it much more simple. Surely the non-POFA-ness of their NTK is not just little things like no period of parking, which POPLA would ignore? Surely it's non-POFA in ALL wording when compared to para 9 of the POFA (clue - read Schedule 4 para 9(2)f, obviously the main mandatory keeper liability warning).
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • G0ldenballz
    • By G0ldenballz 21st Jun 19, 9:26 PM
    • 5 Posts
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    G0ldenballz
    • #7
    • 21st Jun 19, 9:26 PM
    • #7
    • 21st Jun 19, 9:26 PM
    Thanks Coupon Mad, in looking more at the NtK, the location is detailed as - Location: Fistral Beach, Newquay.

    There is no mention of the car park, or the road on which the car park is located.

    Is that worth mentioning?

    As para 9(2)(a) states: specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

    So we have no period of parking quoted and an incorrect location? Or is that too pedantic?
    • The Deep
    • By The Deep 22nd Jun 19, 9:03 AM
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    The Deep
    • #8
    • 22nd Jun 19, 9:03 AM
    • #8
    • 22nd Jun 19, 9:03 AM
    Are you tying this on a 'phone?

    Nine times out of ten these tickets are scams so complain to your MP.

    Parliament is well aware of the MO of these private parking companies, 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, and access to the DVLA's date base more rigorously policed, 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/enacted

    Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.
    You never know how far you can go until you go too far.
    • Fruitcake
    • By Fruitcake 22nd Jun 19, 9:59 AM
    • 40,678 Posts
    • 90,304 Thanks
    Fruitcake
    • #9
    • 22nd Jun 19, 9:59 AM
    • #9
    • 22nd Jun 19, 9:59 AM
    Thanks Coupon Mad, in looking more at the NtK, the location is detailed as - Location: Fistral Beach, Newquay.

    There is no mention of the car park, or the road on which the car park is located.

    Is that worth mentioning?

    As para 9(2)(a) states: specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

    So we have no period of parking quoted and an incorrect location? Or is that too pedantic?
    Originally posted by G0ldenballz

    Forget the location. The car park is known throughout the and as the Fistral Beach, Newquay car park, so I doubt you will get any traction there.
    That would be like saying, Big Ben, London, but not giving a post code.

    The period of parking is minor, but any omissions from the PoFA should be included.

    Did the NTK arrive in time to transfer liability to the keeper? Does the wording include the warnings in para 9 (2) (f) as already mentioned by C-m? These are much stronger appeal points.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 23rd Jun 19, 1:24 AM
    • 76,841 Posts
    • 90,197 Thanks
    Coupon-mad
    Was it dated in time within 14 days?

    We assume you have read the other exact same Initial PCN at Fistral thread this weekend, where the PCN arrived late?

    So much repetition on here!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
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