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  • FIRST POST
    • Time Poor
    • By Time Poor 7th Sep 17, 8:38 AM
    • 24Posts
    • 8Thanks
    Time Poor
    PCN Admin Centre
    • #1
    • 7th Sep 17, 8:38 AM
    PCN Admin Centre 7th Sep 17 at 8:38 AM
    Hi all

    I have spent hours reading your forum, it is very informative, thank you.

    I received an NTK from PCN Admin Centre on behalf of Elite Management (Midlands) Ltd. No NTD was provided. The contravention date and time specifies a date and a time, but no period. The letter is dated more than 15 days later than the contravention date.The issue reason is "the vehicle was parked without the permission of the landowner on private property".

    They discuss "the driver agrees to be contractually bound.. data released...reasonable cause (under regulation 27..."

    They go on "Due to the breach of terms and conditions of parking as set out in the signage...we are members of an Accredited...follow code of practice... this is a Parking Charge and not a "penalty" or "fine"".

    "if you were not driver at the time, you should tell us.."

    "Photographic evidence is held..."

    The back of the PCN outlines how to pay, how to get advice and touches on the appeal process. Then under Hire Companies they mention liability under POFA.

    I am planning to follow your step one, but I feel that I should point out to them that they have lost the right to pass liability on to me as keeper as they have not adhered to POFA in a number of areas, I am hoping (probably naively) that they cancel it there. But if they don't then there are a number of other grounds to take to POFA including small signage, which is blue and discusses displaying pay and display tickets in the windscreen when there is not even a ticket machine, besides the fact that there are a number of terms and conditions on the sign, none of which are parking without permission of the landowner.

    I therefore wondered if you would check over my intended response and let me know your thoughts?

    Dear Sirs

    Re: PCN No.

    I challenge this 'PCN' as keeper of the car.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

    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.

    If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). You have failed to adhere to these strict requirements and you have taken longer than 15 days to post the NTK to me. You have, therefore, lost the right to pass liability on to me as the registered keeper.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.
    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,

    Your opinions will be really appreciated.
Page 2
    • DoaM
    • By DoaM 7th Sep 17, 12:36 PM
    • 3,489 Posts
    • 3,550 Thanks
    DoaM
    If post #1 has a cut/paste of the blue appeal wording from the NEWBIES thread - yes.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Time Poor
    • By Time Poor 7th Sep 17, 1:12 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    Well almost. I just added a bit! I feel that I need to tell them they have lost the right to pass liability to me as the keeper.

    It seems the question to me is two fold:

    Follow the blue appeal wording from NEWBIES (maybe with a slight amendment?), Or go for the jugular and just a short sharp note. I have put examples of both below:

    OPTION 1
    Dear Sirs

    Re: PCN No.

    I challenge this 'PCN' as keeper of the car.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

    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.

    If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). You have failed to adhere to these strict requirements and you have taken longer than 15 days to post the NTK to me. You have, therefore, lost the right to pass liability on to me as the registered keeper.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.
    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,

    Your opinions will be really appreciated.

    OPTION 2

    I am the keeper, not the driver at the time and I reserve my right not to name the driver.

    You have failed to follow the strict timescale laid down in POFA 2012 and taken longer than the 15 days to send the NTK to me. You have, therefore, lost the right to pass liability on to me as registered keeper.

    I invite you to cancel the charge or send me a POPLA code so that I can use this failure and other appeal points in my appeal to POPLA.
    • Time Poor
    • By Time Poor 7th Sep 17, 1:13 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    At the moment it seems that 2 members favour option 1 and one member favours option 2.

    Anyone else?
    • Guys Dad
    • By Guys Dad 7th Sep 17, 1:31 PM
    • 10,200 Posts
    • 9,342 Thanks
    Guys Dad
    The standard appeal is for those who don't have a "Golden Ticket". Even Coupon-Mad who wrote the standard appeal confirms this and only yesterday siad on this forum if you have a sure fire "golden ticket" use that. Just do a forum search for the last week looking for "golden ticket" to see what I mean.

    Look, the PPCs are well aware of our "standard appeal". They get lots of them and have a standard reply because they know that a certain percentage of them have no "golden ticket".

    Quentin is right inasmuch as the standard appeal will get you a POPLA code. I am suggesting that, faced with incontrovertible evidence that you know they haven't a leg to stand on, they may well fold now and save the POPLA stage and their £27 fee.

    Because they have left the BPA, they may not feel inclined to offer you a POPLA code. I would double check with the BPA what is there understanding re an ex-member who left them after the contravention event. You may need their reply in writing should matters progress to court.

    So I would stick to the one point appeal, but if you are in doubt, go with the one point appeal and then add.

    "Should you wish to ignore this clear cut breach of POFA, then be assured that I would also raise the following points at POPL
    A" then add the kitchen sink in the blue standard appeal.
    Last edited by Guys Dad; 07-09-2017 at 1:50 PM.
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 1:47 PM
    • 51,452 Posts
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    Coupon-mad
    Quentin is right inasmuch as the standard appeal will get you a POPLA code. I am suggesting that, faced with incontrovertible evidence that you know they haven't a leg to stand on, they may well fold now and save the POPLA stage and their £27 fee.
    Agreed, make it clear they missed the 14 day deadline.

    Because they have left the BPA, they may not feel inclined to offer you a POPLA code.
    This.

    I reckon these last remaining ones might just be cancelled as they are unlikely to bother (perhaps) with POPLA which the PPCs don't like. Clearly Elite decided to 'Trade Body Shop' and chose to hop to the IPC inthe hope of winning more appeals (which they will...) and then they'll use Gladstones to threaten or try court claims.

    So yes it's a ''phew'' moment, and don't use that car park again.

    Do you know you can legitimately park on a single or double yellow to collect and load a pre-paid item from adjacent premises? Loading and unloading is an exemption in the 'real world' of Council PCNs and the even better thing about yellow lines is, Council CEO's can't even print a PCN until they observed for at least five minutes - and you'd see them lurking in that time! And you are actually allowed the time it reasonably takes to collect/load an item, up to 20 minutes in fact.

    I always look to completely avoid private car parks unless using the retailer on site.

    Use yellow lines on street as they are designed for (as long as there is no loading ban shown by 'kerb blips' in extra dabs of yellow paint). Not for shopping/paying for items, only collecting pre-paid. Takeaways - being bulky and hot/difficult to carry, can be argued to be exempt if pre-ordered/paid.
    Last edited by Coupon-mad; 07-09-2017 at 1:51 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Time Poor
    • By Time Poor 7th Sep 17, 4:16 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    I have never been in any doubt that I wish to use my "Golden Ticket", the question to me was whether to focus on one point or whether to add that one point into the template so that I am covered for other things that I don't fully understand!

    I read the Golden Ticket post from yesterday too and it left me a little confused as it seemed the recommendation was to build the one point into the template rather than focus on one point?

    Guys Dad obviously feels very strong about making a one point argument only and I am happy to go this route, but I would just like to ask one question of Coupon Mad. - in #25 you said "Agreed, make it clear they missed the 14 day deadline." - but you didn't make your opinion known as to whether to go with the one point argument or build it into the blue template? Sorry to put you on the spot as i am sure it was purposeful
    • Time Poor
    • By Time Poor 7th Sep 17, 4:39 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    I have just called BPA. I spoke to a lady there who said she is one of the people who is responsible for deciding on appeals. She said that it is not quite as clear cut as just relying on the 15 day period. She said that it would be better for me to appeal using a number of factors. I explained a couple of things like - size of sign, colour of sign, no parking meter, no mention of permission of land owner on private land in t&cs.

    She said this will be particularly important as the fact that the letter was created after the move to IAS (or whatever the other body is called) means that they might not rely on POFA.

    Any thoughts? I am worrying a little now that POFA might not be my "golden ticket"! In any case, she seemed confident that there seemed to be a lot of reasons that I could win an appeal regardless of who it was so I am not disheartened. it just means more work than I planned!
    Last edited by Time Poor; 07-09-2017 at 4:44 PM.
    • pappa golf
    • By pappa golf 7th Sep 17, 4:46 PM
    • 7,635 Posts
    • 7,884 Thanks
    pappa golf
    POPLa must be given , even by a company that have moved , if at the time of the offence they were BPA members

    however , dependent on the "reference" they got from the BPA at the time of leaving , they may not wish to offer a POPLa code ,

    failure to supply a code by the relivent ATA (at the time of the incident ) would make progression "tricky" to say the least
    • pappa golf
    • By pappa golf 7th Sep 17, 4:48 PM
    • 7,635 Posts
    • 7,884 Thanks
    pappa golf
    I have just called BPA. I spoke to a lady there who said she is one of the people who is responsible for deciding on appeals. She said that it is not quite as clear cut as just relying on the 15 day period. She said that it would be better for me to appeal using a number of factors. I explained a couple of things like - size of sign, colour of sign, no parking meter, no mention of permission of land owner on private land in t&cs.

    She said this will be particularly important as the fact that the letter was created after the move to IAS (or whatever the other body is called) means that they might not rely on POFA.

    Any thoughts? I am worrying a little now that POFA might not be my "golden ticket"! In any case, she seemed confident that there seemed to be a lot of reasons that I could win an appeal regardless of who it was so I am not disheartened. it just means more work than I planned!
    Originally posted by Time Poor

    YES , the "lady at the BPA has nothing to do with appeals , appeals are done by an independent company , the way she spoke , dhe was probably the tea lady
    • Time Poor
    • By Time Poor 7th Sep 17, 5:21 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    I might be using incorrect terminology. I am paraphrasing what she said. But she did sound knowledgeable.
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 5:28 PM
    • 51,452 Posts
    • 65,048 Thanks
    Coupon-mad
    Errrrmmm...why did you call the Trade Body which props up the scammers?

    [Removed] or whichever shining example of Haywards Heath's finest answered the phone, do not decide on appeals. They don't hear appeals. That's not what the BPA do.

    She said that it is not quite as clear cut as just relying on the 15 day period
    She lied.

    Think which side the BPA represent. The very first reply you had here, was from Half_way, whose signature bears the legend:

    From the Plain Language Commission: "The BPA has surely become one of the most socially dangerous organisations in the UK"
    No idea why you spoke to them, possibly telling them who was driving too? Hope not, but at least they won't assist Elite by passing on whatever you said, since Elite have jumped ship away from the BPA.

    Honestly it matters not what you say in first appeal (as long as you do not say who was driving/parked). You could say the moon was made of cheese, one point or ten, it doesn't matter. You do not have to 'cover yourself' for the later POPLA appeal, you can say whatever you want if POPLA appeal stage is reached, even if you used a one-point appeal now.

    You are overthinking a simple stage!
    Last edited by MSE ForumTeam2; 08-09-2017 at 11:43 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Time Poor
    • By Time Poor 7th Sep 17, 5:35 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    Ok, point taken.
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 5:45 PM
    • 51,452 Posts
    • 65,048 Thanks
    Coupon-mad
    I am only frustrated that you listened to a woman at the BPA and called her 'knowledgeable'!

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Time Poor
    • By Time Poor 25th Sep 17, 10:06 AM
    • 24 Posts
    • 8 Thanks
    Time Poor
    initial appeal and rejection
    Thank you to everyone for their help with the initial internal appeal. I now do see that all it was about was getting a POPLA code. But you can't blame me for a having a thin hope that they would drop it if i threw everything at them!

    I decided in the end to send the appeal outlined below. Unsurprisingly, they responded with an unsuccessful internal appeal (outlined below) and a POPLA code, but gave me some additional information that could potentially be an additional golden ticket - namely that the car was only on site for (less than 10) minutes.

    I will create another note below this with my POPLA appeal and would really appreciate it if someone would look over it for me.

    Thanking you in advance.



    Dear sirs

    Re PCN No:

    I challenge this 'PCN' as keeper of the car.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

    I would also like to add that you have failed to follow the strict requirements laid down in POFA 2012, most notably that you have taken longer than the 15 days to send the Notice to Keeper to me - it is clearly stated on the NtK that the date of the alleged contravention was XXXX whilst the date of the NtK itself is XXXX and it was delivered XXXXX. You have, therefore, lost the right to pass liability on to me as registered keeper.

    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.

    Should you have obtained the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours Faithfully




    I then received an email from PCN Admin Centre:

    Good afternoon,
    Thank you for your recent online submission, which we recognise as an internet template.
    Your comments regarding signage at the location have been acknowledged, please find attached your appeal outcome.

    Please be advised, the correspondence sent to you on XXXX is a Parking Charge Notice, not a Notice to Keeper.

    Our client is not relying on the Protection of Freedoms Act 2012 for this Notice, however, they will rely on the balance of probability that as you are the keeper of the vehicle, you would have been the driver on the date in question.

    We refer your comments regarding the processing of your data, which we are treating as a formal section 10 Notice (“the Notice”) under the Data Protection Act (“the Act”). Please accept this email as our formal acknowledgement and response to the Notice.

    You have provided no justification for the Notice. The processing of your data is warranted.
    In any event, section 10(1) of the Act does not apply in circumstances where Schedule 2, paragraphs 1 to 4 of the Act are met, accordingly, we are permitted to continue to process your data at this stage.

    If this is not clear, we suggest you seek legal advice.


    They also attached a letter headed PCN Admin Centre to the email;

    Thank you for your appeal against the above Parking Charge Notice (PCN). We have carefully considered your appeal however on this occasion; the appeal has been rejected for the following reason: This vehicle was parked the location for (less than 10) minutes without the permission of the landowner. All vehicles parked at the location must be authorised by the landowner.

    Photographic evidence of this can be seen on www.ipaymypcn.net.

    You have now reached the end of our internal appeals procedure and therefore you now have the following options:
    - You can pay the total amount due as shown above within the next 14 days from the date of this letter.
    § Call us on 01932 918098
    § Pay securely online at www.ipaymypcn.net
    § Send a payment to the address noted above (please quote the PCN Number on all payments)
    - You can appeal to an Independent Appeals Service: POPLA (Parking on Private Land Appeals)
    § IMPORTANT NOTE: Should you decide to appeal to POPLA and your appeal is subsequently rejected, the option to pay a discounted amount will no longer be available and the full amount of the PCN will become due.

    If you decide to appeal to POPLA, you will need to visit their website, www.popla.co.uk; how to appeal (either online or by downloading the relevant forms) can be located via the website. If you are unable to access their website, please call us for further information on how to obtain the forms.

    Please ensure that your unique number as noted above is quoted on all correspondence to POPLA. You have 28 days from the date of this letter to exercise this option. Before making your appeal, you should read the guidance notes on the website.

    If you appeal to POPLA we will suspend recovery activity on the Parking Charge Notice until the appeal has been determined.

    By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org) 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.

    If you do not make payment or appeal, the outstanding PCN will be passed to our appointed debt collection agency for further action and all costs associated with this process will be added to the amount outstanding.
    • Time Poor
    • By Time Poor 25th Sep 17, 10:16 AM
    • 24 Posts
    • 8 Thanks
    Time Poor
    Quick notes
    Before I post my appeal, i would just like to point out a few small things with their appeal rejection.
    - "Please be advised, the correspondence sent to you on XXXX is a Parking Charge Notice, not a Notice to Keeper." - their original letter was actually headed "Parking Charge Notice To Registered Keeper", it didn't arrive within 14 days and didn't state the time period that the car was parked.
    - Following my initial appeal they have shown their evidence of parking which is based upon photographic evidence of the car arriving and leaving within (less than 10) minutes. They purposefully did not state this in their initial NTK as they probably know it does not offer the 10 minute grace period.
    - They say "Our client is not relying on the Protection of Freedoms Act 2012 for this Notice, however, they will rely on the balance of probability that as you are the keeper of the vehicle, you would have been the driver on the date in question."
    • Time Poor
    • By Time Poor 25th Sep 17, 10:20 AM
    • 24 Posts
    • 8 Thanks
    Time Poor
    POPLA Appeal
    Dear POPLA,
    PCN Number: xxx
    POPLA Verification Code: xxx

    On the XXXXX, PCN Admin Centre (trading name of ZZPS Ltd) working on behalf of Elite Management (Midlands) Ltd, issued a “Parking Charge Notice To Registered Keeper” highlighting that the above mentioned vehicle had been “parked without permission of the landowner on private property.”

    I then appealed to them using their internal appeals process unsuccessfully for the following reason: “This vehicle was parked the location for (less than 10 minutes) without the permission of the landowner. All vehicles parked at the location must be authorised by the landowner”.
    I write to you as the registered keeper of the vehicle xxxx, and I submit the reasons below to show that I am not liable for the parking charge of £100 issued by PCN Admin Centre (The Operator) on the following grounds:

    1) The Operator “is not relying on the Protection of Freedoms Act 2012 for this notice.”
    2) The Operator’s Parking Charge Notice to Registered Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA) due to their inability to meet key dates and their deliberate omission of key wording.
    3) The Operator has not shown that the individual who it is pursuing is in fact liable for the charge.
    4) No evidence of Landowner Authority
    5) No Contract was entered into between The Operator and the Driver or Registered Keeper
    6) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
    7) Insufficient Grace Period has been provided since the vehicle exited (less than 10) minutes after it entered the car park.

    1) The Operator “is not relying on the Protection of Freedoms Act 2012 for this notice.”

    The operator has chosen not to use the Protection Of Freedoms Act 2012 (POFA 2012) in order to hold me, the Keeper, liable for this charge. This is confirmed not only through the deliberate omission of any POFA 2012 required wording given in the Parking Charge Notice to Registered Keeper, but also the internal appeal rejection letter which explicitly states "Our client is not relying on the Protection of Freedoms Act for this notice, however, they will rely on the balance of probability that as you are the keeper of the vehicle, you would have been the driver on the date in question.”

    If they choose to rely on the balance of probability then they will fail as I am insured on 3 vehicles in my household, one of which is a van that I can prove that I mostly use in the week. So, the balance of probability is that I could not have been the driver.

    As such the operator has no ability to recover the PCN charge from myself, a keeper appellant, and POPLA must uphold the appeal as it does in cases where the operator has attempted to use POFA and failed.


    2) The Operator’s Parking Charge Notice to Registered Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA) due to their inability to meet key dates and their deliberate omission of key wording
    Even if POPLA decide to assume the operator is attempting to hold the keeper liable, despite the clear evidence otherwise, the PCN Admin Centre have not complied with POFA 2012.
    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions have been met as stated in paragraphs 5, 6, 11, and 12. PCN Admin Centre have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set timeline and wording:-
    The notice must be given by:
    a. handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
    b. sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

    The applicable section here is (b) because the Parking Charge Notice / Notice To Keeper that I have received was delivered by post. Furthermore, paragraph 9(5) states:
    ’’The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’.

    The Parking Charge Notice To Keeper sent to myself as Registered Keeper was produced in their offices (never actually posted on that day, as is well known) showing a date issued of XX/XX2017. This is XX days after the alleged event, shown as XX/XX/2017.

    This means that PCN Admin Centre have failed to act within the 14 day relevant period. Furthermore, it is clear that PCN Admin Centre know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one that has no reference to ‘keeper liability’ or the POFA on either the front or the back of the Parking Charge Notice/NTK .

    So, this is a charge that could only be potentially enforced against a known driver. The driver has never been admitted and there is no evidence as to the identity of that individual.


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

    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.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

    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 charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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.

    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.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''


    4) No evidence of Landowner Authority

    As PCN Admin Centre 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 PCN Admin Centre 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 CoP) 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 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

    5) No Contract was entered into between the PCN Admin Centre and the Driver or Registered keeper

    Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. PCN Admin Centre clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of PCN Admin Centre to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require PCN Admin Centre to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    I request that PCN Admin Centre provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.


    6) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    http://imgur.com/a/AkMCN

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges
    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''
    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.”

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency'
    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
    • Time Poor
    • By Time Poor 25th Sep 17, 10:20 AM
    • 24 Posts
    • 8 Thanks
    Time Poor
    POPLA Appeal Continued
    7) Insufficient Grace Period has been provided since the vehicle exited (less than 10) minutes after it entered the car park.

    Finally, and potentially most importantly, even if the signs were prominent and large enough to communicate clearly (which they are not), no “grace period” was given for the driver in which to decide if they are going to stay or go.

    Whilst the operator’s initial PCN/NTK failed to specify the period of time that the vehicle was parked (another example of their inability to adhere to the strict guidelines relating to POFA 2012), they quite clearly state in their appeal rejection letter dated XX/XX/17 that “This vehicle was parked (at) the location for (less than 10) minutes without the permission of the land owner”.

    In addition to this their photographic evidence shows that the vehicle entered the car park at XX:XX and exited at XXXX which is a period of (less than 10) minutes.

    The BPA Code of Practice (13.2) states that parking operators "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." Therefore, if a driver stops for a short period of time to read a sign, they must be given the opportunity to leave and not accept the terms of an alleged contract.

    Kevin Reynolds, Head of Public Affairs and Policy at BPA states 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. The BPA’s 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.”

    Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

    During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

    “Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

    For the avoidance of doubt, the 'grace' period of 10 minutes (not a maximum, but a minimum) is to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine or sign to read & observe the terms, before deciding whether to park or leave.

    It is very clear from the evidence that PCN Admin Centre have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the car park was X minutes.

    By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable time “in which to decide if they are going to stay or go.” And more specifically “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”.

    In fact this case demonstrates significant unreasonableness on the part of this parking operator who appear to be ignoring their Trade Body rules from the BPA.

    Conclusion

    To sum up there are a number of reasons why this appeal must be upheld:
    If PCN Admin Centre on behalf of Elite Management (Midlands) Ltd (The Operator) choose to rely on the balance of probability that I was the driver, then the balance of probability is that I was not the driver because I am insured on 3 vehicles in my household and I drive a van all week.

    If The Operator attempts to hold me, the keeper appellant, liable under schedule 4, paragraph 4 of POFA 2012, then they have failed to achieve this due to their inability to meet key dates and timeframes, as well as their deliberate omission of key wording.

    Regardless of whoever the driver was, The Operator has failed to follow the BPA Code of Practice in a number of areas, most notably with regard to signage because the signs are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering and staying on that car park. So it would be unacceptable to assume that any alleged contract was willingly entered into.

    Finally, even if the signage was clear and followed best practice, the fact that the vehicle that is subject to this PCN exited the car park (less than 10) minutes after it entered means that the minimum grace period of at least 10 minutes has not been provided.

    As such, I respectfully request that this Parking Charge Notice appeal be allowed on the points raised above and await your decision.

    Yours faithfully
    • Umkomaas
    • By Umkomaas 25th Sep 17, 11:18 AM
    • 15,428 Posts
    • 24,124 Thanks
    Umkomaas
    Some piecemeal comments from me after a cursory skim of the 4,500+ word tome! Degrees have been awarded on fewer.

    If they choose to rely on the balance of probability then they will fail as I am insured on 3 vehicles in my household, one of which is a van that I can prove that I mostly use in the week. So, the balance of probability is that I could not have been the driver.
    It's not really on how many other vehicles you are insured, but more on how many others are directly insured on the vehicle involved in the parking event. Without doubt also use your above argument, but the most potent one would be my assertion.

    I would drive home the fact that as they are by their own admission not utilising PoFA and they have no evidence as to who the driver was, they have absolutely no case against you, the registered keeper.

    5) No Contract was entered into between the PCN Admin Centre and the Driver or Registered keeper
    You keep quoting PCN Admin Centre, but they are only a back office function. Your dispute is with Elite Management (Midlands) Ltd so you need to alter your entire appeal and remove PCN Admin Centre and replace with Elite.

    Kevin Reynolds, Head of Public Affairs and Policy at BPA states that: ‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.
    Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’
    One or the other .......!

    As I said cursory look-over. Any absence of comment on anything else in the appeal shouldn't be taken as me having read it and okaying it.

    Good luck with the appeal - I'm sure there's enough in it (even just on volume) to put Elite in a tailspin.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Time Poor
    • By Time Poor 25th Sep 17, 11:40 AM
    • 24 Posts
    • 8 Thanks
    Time Poor
    Thanks for your comments.
    • Time Poor
    • By Time Poor 25th Sep 17, 1:09 PM
    • 24 Posts
    • 8 Thanks
    Time Poor
    Sorry to be cheeky, but has anyone else got any comments?
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