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  • FIRST POST
    • tango2
    • By tango2 24th Aug 16, 1:36 PM
    • 17Posts
    • 11Thanks
    tango2
    AM Parking Ltd PCN ticket appeal refused. Help needed please.
    • #1
    • 24th Aug 16, 1:36 PM
    AM Parking Ltd PCN ticket appeal refused. Help needed please. 24th Aug 16 at 1:36 PM
    Hi

    I read the newbies thread and left it until day 26 to appeal the AM Parking Ltd PCN. The appeal has been refused as per attached. I am now unsure what to do next. I have not received an NTK.

    The photo evidence show photos of other signage far away from where the driver was parked as well as signage that was obscured by a van waiting. If the driver did not see the signs, then he did not enter into a contract - correct?

    I am not sure why he will not provide that land owner details. Nor why I have to appeal to the ombudsman. There is no answer to the disproportionate charge and ignored that the driver was only parked there for 5 minutes. Of course he knows that as he was sitting and waiting to pounce rather than be a decent human being and point out that this is a private parking space. And he assumes I was the driver.

    Please could someone provide me with advice on what to do next.

    Thanks

    Appeal to AM Parking Ltd.

    I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

    Your signs were obscured and were not seen by the driver. The signs were not visible due to a van parking in front of the sign. The car park is complete chaos. The only visible signage stated Tesco’s 20 minutes parking and the driver wrongly assumed this applied to all of the car park. Therefore, with a vehicle blocking the sign, the terms are not readable to drivers before they park. With no clear signage to explain the relevant parking restrictions, no contract can be formed with the landowner and all tickets are issued illegally.

    The charge is disproportionate and not commercially justifiable. The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner. In this case, the £100 charge you are asking for far exceeds the cost to the landowner for 4 minutes of parking. The car was parked from 12.30 to 12.34. The ticket was issued at 12.31 and the Tesco receipt states 12.33 (proof attached). The charge you have asked for is therefore excessive and not justified.

    Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses to cancel such a charge. Please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    I have kept proof of submission of this appeal and look forward to your reply.


    Response

    I have read through your letter of appeal and the reason why you have stated that this vehicle was parked in this area. I have looked at the date and time stamped photographic evidence of your vehicle and I have taken all aspects into consideration, there is no valid AM Parking permit visible and that is the reason you received a PCN for failure to display a valid permit. I have enclosed a few pictures of the entrance sign, where your vehicle was parked in a boldly marked private bay with a sign directly in view of your vehicle along with the terms and conditions of the parking enforcement in that area for your perusal. We will not supply yourself our clients details under the data protection act as you entered a contract with ourselves when you decided to park there as per the terms and conditions of the signage.

    As you are not a resident you are NOT entitled to park in a resident’s private parking bay to which they pay for.

    The onus is on the driver to read the signage and by parking your vehicle there you agree to the terms and conditions.

    Whilst I have taken into consideration the contents of your appeal, all private bays are clearly marked as such and shown on the signage in this area, the signage states that parking bays H23-H42 requires a valid residents permit to be displayed at all times along with the bays marked ‘PRIVATE BAY’ along with bay number.

    Please can I take this opportunity to inform you that the signage that is displayed in the area where vehicle was parked informs all motorists of the terms and conditions for parking, vehicle registration number parked whilst failing to display a valid permit in the bay H38 to which we have date and time stamped photographic evidence.

    We cannot confirm the arrival or departure time of vehicle the date and time it was first noted parked whilst parked failing to display a valid permit for that area and the date and time of which PCN was applied to the vehicle.

    PCN was issued on 1st July 2016 and allows for twenty eight days including the date of issue to pay PCN of £100 or a reduced amount of £60 would be accepted if paid within 14 days.

    However, due to your appeal my line manager has authorised to accept a payment of £60 for PCN, we have kept the reduced payment amount for PCN in place until Friday 16th September 2016.

    Please contact 0845 519 2773 Monday - Friday between the hours of 10:00hrs and 16:00hrs and make arrangements for the payment of PCN or Secure online payment can be made through PayPal via and following the link ‘Payments’ or payment can be sent via crossed cheque or postal order made payable to AM Parking Services Ltd and sent to AM Parking Services Ltd, Payments, PO Box 1260, Kent, ME14 9LZ, please write the reference stated above on the reverse of the cheque.

    If the reduced payment of £60 or no further appeal via POPLA has been received by Friday 16th September 2016 then PCN will increase to its original amount of £100 and will be passed to a third party Debt Recovery Company where additional charges may be applied.

    We have now reached the end of our internal appeals procedure.

    You have a right to appeal via POPLA within 28 days from the date of this letter, using our verification code which is

    By law we are also required to inform you that Ombudsman Services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.’

    Once you have appealed to POPLA you should be aware that you are no longer entitled to the reduced amount and that the full amount of £100 is then payable if you are unsuccessful.

    If making payment via telephone, please have to hand your payment details and Our ref: as stated above, please note that payment by telephone using a debit card will incur a £1 admin fee and payment by telephone using a credit card will incur a £2.50 admin fee as per the terms and conditions stated on the signage and PCN.

    Yours faithfully Appeals Department
Page 2
    • tango2
    • By tango2 31st Aug 16, 9:35 AM
    • 17 Posts
    • 11 Thanks
    tango2
    Hi

    This is the final version of the POPLA appeal letter.

    Any further tips?

    Thanks for all of your help thus far.

    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 at Sandalwood. 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 xx 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) The operator has not shown that the individual who it is pursuing for the parking charge is in fact liable for the charge.
    4) AM Parking does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
    5) The signage on site is inadequate or inappropriate and cannot have formed a contract with the driver.
    6) Failure of AM Parking Ltd to adhere to the BPA Code of Practice Grace Period

    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[B] 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[B]. 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[B] 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 of POPLA for 3 years, 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.
    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.
    4. 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.
    5. 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), not on the driver’s side of the road. 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 parking. These signs are easily visible (Photo 4). The driver visited Tesco’s for less than five minutes as shown by the receipt (Photo 5) and entered the car park at 12.30 and exited at 12. 34. 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 non- parking 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 an hour after the PCN was issued to demonstrate this is a common occurence. When approaching from the left (Photo 7), the van obstructs the parking sign. At the time 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 by another vehicle, the sign was not read and a contract could not 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 (Photo 8). 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 (Photo 9). 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.
    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 ‘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 12.34. The evidence produced shows the car there for a mere 4 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 4 minutes and therefore, not within the grace period allowed. AM Parking Ltd need to confirm their specific grace period for the site.

    This concludes my POPLA appeal. In the light of all of the above, I therefore respectfully request that my appeal is upheld and the charge is dismissed.

    Yours faithfully,
    • tango2
    • By tango2 20th Sep 16, 4:50 PM
    • 17 Posts
    • 11 Thanks
    tango2
    Appeal won. It's been withdrawn.

    Reason: Our Person that does POPLA appeals is backwards and forwards to Hospital at present and not in a fit state to answer to the appeal presently.

    Thanks for your help!
    • Coupon-mad
    • By Coupon-mad 20th Sep 16, 6:28 PM
    • 38,383 Posts
    • 49,822 Thanks
    Coupon-mad
    Nice one.

    Do we assume they are so tin-pot that they have no-one else with a brain who can 'do' POPLA evidence even though most such replies are templates?!
    PCN in a private car park in England/Wales? DON'T PAY IT BUT DO NOT IGNORE IT

    USE THE 'FORUM JUMP' ON RIGHT, GO TO THE PARKING TICKETS FORUM. READ THE 'NEWBIES' THREAD.
    Do NOT read old advice to ignore, unless in Scotland/NI.

    • tango2
    • By tango2 22nd Sep 16, 1:50 PM
    • 17 Posts
    • 11 Thanks
    tango2
    Nice one.

    Do we assume they are so tin-pot that they have no-one else with a brain who can 'do' POPLA evidence even though most such replies are templates?!
    Originally posted by Coupon-mad
    I would believe so. The email from the AM parking referred to "their manager" but i believe this is a one man band.
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