AM Parking Ltd PCN ticket appeal refused. Help needed please.

Umkomaas wrote: »

You definitely need a 'Signage' point - don't assume that the signs meet BPA requirements. Check them out against the BPA Code of Practice (latest version). You also need to take your own photos, taken at roughly the time of parking - essential if it was dusk/dark at the time (photo without flash if that's the case).

New POPLA are proving to be nowhere near as thorough, perceptive or clued up as former POPLA, who could pick out a winning point easily, so effort in the appeal was concentrated on just key points. Some chanced their arm and won on just one appeal point - but even then, that carried risk.

Out current thoughts on this are moving towards recommending that a 'kitchen sink' approach covering everything should be the default advice. This also has the potential to intimidate the cerebrally challenged PPC in trying to understand it, let alone make the effort to answer a long list of points, causing them to move on to less savvy prey, and they drop the case.

Hi

I have added a signage point but the BPA don't appear to have many guidelines on this. It seems to be focused on the entrance sign only. I have searched for examples too but not found anything suitable.

Should I make a point of only being in the car park for 5 minutes (although my appeal rejection states they cannot confirm the time of entry/departure only the time of the photos taken)? Does a grace period apply if i actually parked there?

Can you explain if not having an NTK nor responding to my appeal within 14 days is grounds enough to win an appeal?

Thanks!

I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by AM Parking Ltd Limited in respect of an alleged breach of Parking Terms and Conditions on 1st July 2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

My appeal to the Operator, AM Parking Ltd, was rejected on 15th August 2016. I am the registered keeper of vehicle reg XXXX XXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds

1) Failure of AM Parking Ltd to adhere to the BPA Code of Practice
2) No Keeper Liability under POFA 2012– Failure to meet the strict requirements of POFA.
3) AM Parking does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
4) The signage on site is inadequate or inappropriate and cannot have formed a contract with the driver.

1. Failure of AM Parking Ltd to adhere to the BPA Code of Practice
In direct contravention of Clause 22.8 of the British Parking Association’s Code of Practice, to which AM Parking Ltd must abide, states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it". The initial appeal was lodged on AM Parking Ltd’s online system on 26th July 2016. AM Parking Ltd did not respond until the 15th August 2016, where they rejected the initial appeal. In fact, the first attempt to lodge the appeal was not successful as the AM Parking Ltd mailbox was full and an undeliverable email notification was received. AM Parking Ltd had to be contacted in order to resolve this issue so that the appeal could in fact be submitted.
In addition, I refer to POPLA case reference 6060845096 where the assessor ruled the Car Park Operator did not respond to their appeal within the 14 day requirement of 22.8 of the BPA Code of Practice which states “you must acknowledge or reply to the challenge within 14 days of receiving it”. AM Parking Ltd did not respond for 21 days. Therefore, AM Parking Ltd failed to adhere to BPA Code of Practice.
2. No NTK issued - No Keeper Liability under POFA 2012

No Notice to Keeper was issued therefore non compliant with the POFA 2012 - no keeper liability.

The keeper liability requirements of REF must be strictly complied with where the appellant is the Keeper, as in this case.

As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in REF. The alleged infringement occurred on 1/07/2016 and it is understood that the NTK was required to reach the registered keeper no earlier than 28/7/2016 and no later than 26/08/2016, this date has passed & the operator has failed to serve a ‘notice to keeper’ in any form whatsoever. Therefore as the conditions set out by paragraph 6 REF have not been complied with, there can be no keeper liability. It follows that POPLA will not be able to find that the charge notice is enforceable against the keeper.

As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided by the operator, it has been held by POPLA multiple times that a parking charge with no NTK cannot be enforced against the registered keeper.
3. AM Parking Ltd has no standing or authority to pursue charges or to form contracts with drivers
I do not believe that AM Parking Ltd has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, AM Parking Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.
I contend that AM Parking Ltd merely holds a basic licence to supply and maintain signs and to post out Parking Charge Notices as a deterrent to car park users. I therefore require AM Parking Ltd to provide POPLA and me with an un-redacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits AM Parking Ltd to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.
4. The signage on site is inadequate or inappropriate and can have made no contract with the driver.
In accordance with the BPA code of practice, the entrance sign must be readable by drivers without having to look away from the road. The entrance sign at Sandalwood is on the right side of the road in front of a car park area (Photo1). It is not positioned at the correct angle for a driver entering the parking area to read whilst driving a vehicle. It is also stuck on top of another sign owned by Oakwood Parking centre obstructing the rules of the car park (Photo 2). The sign is made of cardboard and is falling apart and not all text is eligible (Photo 3). The ‘Free Parking’ text does not state who the free parking applies to.
This car park appears to be managed by three operators and AM Parking Ltd has placed their sign on top of another operators. Tesco also manage the parking area which is why the driver entered this car park. Their parking offers 20 minutes free. These signs are easily visible (Photo 4). The driver visited Tesco’s for less than five minutes as shown by the receipt (Photo 5) The PCN was issued at 12.31 and the Tesco receipt states 12.33. Tesco offers parking via Taragon Road (Photo 6).
The Sandalwood car park is extremely confusing to drivers. In addition, drivers often wait in areas whilst passengers visit the shops. This is exactly what happened on the day the PCN was issued. Photo 7 shows a van parked in front of parking sign. This was taken at a later date and when approaching from the left (Photo 7), the van obstructs the parking sign. On the day that the PCN was issued, a van was parked directly in front of the sign obstructing the sign. Obviously, a photo was not taken at the time as the driver was referring to the Tesco signs placed around the area entitling patrons to 20 minutes free parking. If the sign was obstructed, the sign was not read and a contract cannot be formed with the landowner.
I require AM Parking Ltd to prove beyond any doubt that the sign, meeting the requirements of the law, was visible to the driver upon entering the car park.
A notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle cannot have seen an obstructed sign; there was no consideration / acceptance and no contract agreed between the parties. The onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently visible.
With regards to the actual sign, it is not BPA compliant. The font specifying the sum payable for unauthorised parking is too small and not readable by a driver from their car. The sign contains a vast amount of text and as a result, the font is too small and is not readable by an approaching driver. The sign states that ‘line markings in white are for valid permit holders only’. There are no white line markings at this car park. This sign therefore contains false information.

Ok additions so far. Thanks for your help.

2. No NTK issued - No Keeper Liability under POFA 2012

No Notice to Keeper was issued therefore non compliant with the POFA 2012 - no keeper liability.

The keeper liability requirements of REF must be strictly complied with where the appellant is the Keeper, as in this case.

As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in REF. The alleged infringement occurred on 1/07/2016 and it is understood that the NTK was required to reach the registered keeper no earlier than 28/7/2016 and no later than 26/08/2016, this date has passed & the operator has failed to serve a ‘notice to keeper’ in any form whatsoever. Therefore as the conditions set out by paragraph 6 REF have not been complied with, there can be no keeper liability. It follows that POPLA will not be able to find that the charge notice is enforceable against the keeper.

As a result, Am Parking Ltd have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) The conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

Furthermore, no assumptions can be made that driver liability is possible in this situation. Henry Gleenslade, the previous Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.
“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.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, I am the appellant throughout (as I am entitled to be), and 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 registered keeper without a valid NTK. Thus in this situation, AM Parking Ltd have neither complied with, nor met the keeper liability requirements and thus there is no keeper liability.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade, the POPLA Lead Adjudicator in his 2015 POPLA Report:
''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided by the operator, it has been held by POPLA multiple times that a parking charge with no NTK cannot be enforced against the registered keeper.

3. The operator has not shown that the individual who it is pursuing for the parking charge is in fact liable for the charge.
The driver has not been identified. Even if POPLA (wrongly, because the POFA doesn't support this assumption against a keeper) currently seem to believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where no Notice to Keeper was served at all, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.
The fact that I appealed early, after a windscreen PCN (Notice to Driver stage) does not suggest who was driving because either a driver or a keeper is entitled to appeal at that early stage. I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. As Henry Greenslade (the Lead Adjudicator of POPLA for 3 years) stated - quoted above in my second appeal point - no such 'reasonable presumption' exists in law whatsoever.
From the evidence provided, POPLA will be unable to determine that the operator has identified the appellant (me) in this case as the driver of the vehicle. It is a fact that the driver has not been identified and the POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual.
Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable.
As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, and showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion, regarding a keeper appellant like myself being liable, without the POFA having been followed. No Notice to Keeper being served is absolutely fatal to this case for this operator.

6. Failure of AM Parking Ltd to adhere to the BPA Code of Practice Grace Period
In accordance with the BPA Code of Practice grace period, AM Parking Ltd “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”. As the car was only parked for five minutes, AM Parking Ltd have failed to adhere to the BPA grace period rules. AM Parking Ltd need to confirm their specific grace period at the site. I require AM Parking Ltd to prove beyond any doubt that the car was parked for more than 5 minutes and therefore, within the grace period allowed.

Coupon-mad wrote: »

Re #6 I would in fact rely more on the other Grace period stipulated by the BPA, or quote both grace periods.

If you are saying the car was there for just 5 minutes and had no fair chance to read the signs and decide whether to stay or accept a contract (and I would not say 'the car was PARKED for 5 minutes') then you need the first grace period.

I did actually use the car park though to go to Tesco's. Do either of them actually apply?

Thanks!

Coupon-mad wrote: »

Yes, because if they can only show the car as having been there for 5 minutes then you can argue that was not a sufficient time to have allowed the driver to read the signs in the car park and decide whether to stay or leave. Do not put 'the car was PARKED for 5 minutes' (say 'the evidence produced shows the car there for a mere 5 minutes which was not sufficient time under the BPA Grace periods, to have read any signs and decided whether to accept the terms and stay in the car park, or to fetch a permit if the driver had access to one in adjacent premises, or indeed to return to the car (having read the terms) and leave...then quote the BPA CoP section on BOTH grace periods, in full).

Ok, rephrased.

In accordance with the BPA Code of Practice grace period, AM Parking Ltd “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. 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”. The driver entered the car park at 12.30 and exited at 12.35. The evidence produced shows the car there for a mere 5 minutes which was not sufficient time under the BPA Grace periods, to have read any signs and decided whether to accept the terms and stay in the car park, or to fetch a permit if the driver had access to one in adjacent premises, or indeed to return to the car (having read the terms) and leave. AM Parking Ltd have failed to adhere to the BPA grace period rules. I require AM Parking Ltd to prove beyond any doubt that the car was parked for more than 5 minutes and therefore, not within the grace period allowed. AM Parking Ltd need to confirm their specific grace period for the site.

I think I am almost done with the appeal. Will post full letter.