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  • FIRST POST
    • met6173
    • By met6173 27th Nov 17, 10:17 AM
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    met6173
    Brittania Parking PCN
    • #1
    • 27th Nov 17, 10:17 AM
    Brittania Parking PCN 27th Nov 17 at 10:17 AM
    Hi
    My son has received a PCN through the post sent to the registered keeper. It says he failed to pay and display and are charging £100 reduced to £60 for early payment. There are 2 pictures on the letter, neither of which are timed, showing his car entering and exiting the car park. There is no picture of his windscreen which would surely be a better way to identify his failure to display. There is a time for entering/exiting the car park on the letter. My son can only find a void receipt where the machine played up but thinks he remembers it being an issue and trying again. Still waiting for him to check bank transactions to confirm ( he's a teenager!!) Is this worth appealing?
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    • met6173
    • By met6173 8th Jan 18, 3:51 PM
    • 42 Posts
    • 2 Thanks
    met6173
    Hopefully this will make it more readable....i've included part on land ownership but wasnt sure about signage as in the appeal letter Britannia ignored my comments re dates and only concentrated on signage...

    8th January 2018

    PCN xxxxx
    Reg No:-

    Dear Sir/Madam,

    I am writing to appeal a PCN issued to myself as the registered keeper by Britannia Parking. The alleged parking contravention dates back to xth November 2017. The Notice to Keeper wasn’t issued until xxrd November 2017 and received xxth November. There are number of errors with the PCN issued by Britannia Parking.
    1. Britannia Parking has not met the keeper liability requirements and therefore keeper liability does not apply. Britannia Parking can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As Britannia Parking have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

    In an e-mail correspondence I had prior to appeal I was informed that the PCN was not issued under POFA 2012 stating ‘I have looked at this PCN and there has been no delay, we have up to 35 days to notify the keeper, if the PCN is not issued under the Protections of Freedoms Act 2012 (POFA). Time frame if POFA is quoted in the text on the PCN – 14 days, Time frame if POFA is NOT quoted in the text on the PCN – 35 days. Unfortunately the POFA Legislation is quite complex and can be very confusing if you do not work with the private car parking industry, to understand the requirements to be able to issue a PCN within the 14 days.’ As I understand it if Britannia are not pursuing me under POFA 2012 they can only pursue the driver NOT the registered keeper and had no right to contact DVLA to obtain owner details.

    In their response to my original appeal they state ‘The Parking charge notice was issued to your vehicle because you failed to purchase a valid ticket. It is the drivers responsibility to ensure that they have read and understood the terms and conditions for using the car park. ‘ . The wording in their letter infers and implies that I as the registered keeper am also the driver for which Britannia Parking have no supporting evidence.

    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.’

    It is my understanding that for an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified and the Notice to Keeper fails to comply with section 9 of PoFA 2012 (no windscreen ticket was issued), specifically the following passage:

    “2) The notice must – f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

    The Notice to Keeper that was received (Parking Charge Number xxxxxxx, dated xxrd November 2017) omits such information. I have included in my POPLA submission the two pages of the notice which confirms that such text is absent. The only instruction in this regard is as follows:

    “Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them for payment.”

    Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).
    As this operator has evidently failed to serve a compliant NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly elaborated.


    2. POFA 2012 Schedule 4, Paragraph 9.5 states

    (5)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.
    As already mentioned the PCN was issued 15 days from the alleged contravention. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    3. POFA 2012 Schedule 4, Paragraph 9.6 goes on to say
    (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
    After being issued on the Thursday xxrd November the letter was not received until Monday xxth November, some 19 days from the original alleged contravention. Again I must state that If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
    4. I do not believe that Britannia Parking has the authority to issue the PCN as they do not own the carpark and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

    Britannia Parking must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant Britannia Parking the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between Britannia Parking and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

    5. Britannia Parking seem unable to decide if they are pursuing me as the registered keeper using POFA 2012 or as the ‘assumed’ driver without evidence. If they are pursuing me as the assumed driver of the vehicle without POFA 2012 they have no proof as to the identity of the driver. If they are pursuing me as the registered keeper using POFA 2012 they issued the notice in a untimely manner and wrongly requested my details from DVLA without cause. It seems that Britannia are confused by the wording of the POFA legislation. It is of huge concern to me that when Britannia Parking are responsible for issuing numerous PCN’s that they are so unaware of the laws applied to them.
    • KeithP
    • By KeithP 8th Jan 18, 4:23 PM
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    KeithP
    Include signage too.

    Their appeal response to you may have appeared to be addressing the signs in your incident, but you can be assured that it was simply their standard appeal response with loads of guff about signs, Beavis, contracts, etc.
    .
    • met6173
    • By met6173 8th Jan 18, 5:31 PM
    • 42 Posts
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    met6173
    would this be ok to add?

    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. Britannia Parking 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 Britannia Parking 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 Britannia Parking 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 and/or enter the only lift on each floor that had the terms of the parking. None of which ever actually happened.

    I request that Britannia Parking 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.
    • KeithP
    • By KeithP 8th Jan 18, 5:40 PM
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    KeithP
    What is wrong with the signage template linked from post #3 of the NEWBIES FAQ thread?

    Also the last sentence of your response is factually wrong - i.e. out of date by over two years.
    The Unfair Terms in Consumer Contract Regulations 1999 were replaced in October 2015 by (parts of) the Consumer Rights Act 2015.
    .
    • met6173
    • By met6173 8th Jan 18, 7:45 PM
    • 42 Posts
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    met6173
    When you go on the POPLA the first question it asks are your grounds for appeal. I know on the newbies page it says about not giving too much info, does this mean im better to answer 'other grounds for appeal'? The only other answer thats vaguely relevant is 'im an not the driver' but this goes on to say or the registered keeper... am i able to ignore all options and just click next
    • KeithP
    • By KeithP 8th Jan 18, 7:47 PM
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    KeithP
    Choose 'other'.
    .
    • Redx
    • By Redx 8th Jan 18, 7:48 PM
    • 17,168 Posts
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    Redx
    the advice on here is to choose OTHER and upload the popla appeal as a pdf document

    we never tell anyone anything else , its been this method for perhaps one or two years !!
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • met6173
    • By met6173 8th Jan 18, 7:50 PM
    • 42 Posts
    • 2 Thanks
    met6173
    ive just re read the the part of driver/registered keeper and it is as below, would it not be this option as on the bullet points it says you were not the driver at the time of the alleged improper parking?
    I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking.

    Selected

    • You bought the vehicle after the alleged improper parking.
    • You sold the vehicle before the alleged improper parking.
    • You hired a car, but were not the hirer at the time of the alleged improper parking.
    • You were not the driver at the time of the alleged improper parking.
    • You provided the driver's details, but the parking company continued to pursue you.
    • KeithP
    • By KeithP 8th Jan 18, 7:54 PM
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    KeithP
    It is entirely up to you how you reply.

    You have been offered guidance, now it is your turn to decide.

    You do not have to justify your choice to anyone else.
    .
    • met6173
    • By met6173 8th Jan 18, 8:15 PM
    • 42 Posts
    • 2 Thanks
    met6173
    Thank you all for your help, I went for the 'other' option and uploaded documents as suggested. Fingers crossed
    • met6173
    • By met6173 19th Jan 18, 2:42 PM
    • 42 Posts
    • 2 Thanks
    met6173
    Thanks for all your help, much appreciated. Have just tracked the appeal and it appears that Britannia have withdrawn 'as a gesture of goodwill'. Obviously nothing to do with them obtaining keeper details without using POFA/or issuing the ticket too late if they were using POFA. Do i just wait for a letter from POPLA or Britannia to confirm?
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