PCN help please!

janesr1

Full version that I am going to send off............fingers crossed please.

POPLA Verification Code: (to be inserted)
Vehicle Registration: (to be inserted)
PCN Ref: (to be inserted)
Alleged Contravention date and time: (to be inserted)
Date of initial notice: (to be inserted)
Date of my response: (to be inserted)
Date of rejection to my response: (to be inserted)
Parking Charge Amounts: (to be inserted)


Dear POPLA assessor

As the registered keeper of the above vehicle, I am appealing against the Parking Charge Notice issued against this vehicle on the grounds stated below..

1) Keeper liability cannot be established.
2) Failure to identify creditor.
3) Amount demanded is a penalty not a genuine pre estimate of loss
4) No landowner contract nor legal standing to form contracts or charge drivers or Keepers.
5) Signage at the car park not compliant with the British Parking Association standards.


1) Keeper Liability cannot be established as Notice to keeper was not served in time.
The original notice was issued to me as the keeper of the vehicle on (date to be inserted) for an alleged offense on (date to be inserted) .This is outside the 28-56 days allowed for notification to the keeper under POFA.
I pointed out in my letter of (date to be inserted) that I expected car park management co to cancel any charges. car park management co state in their follow up letter of ( date to be inserted) that this time frame does not apply as they are not relying on POFA 2012 . If POFA does not apply then they are unable to pursue the Keeper. 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. Either way therefore the Payment Charge Notice has been invalidly issued, and this appeal should be upheld.

2) Creditor not identified on Notice to keeper -Failure to comply with POFA 2012
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to car park management co, there is no specific identification of the Creditor who may, in law, be car park management co or some other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that ‘The Creditor is…’ and the Notice does not. The wording of Paragraph 9(2)(h) of Schedule 4 of the act does not indicate that “the Creditor” must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.
So, in addition to car park management co's failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions. The Notice to keeper is therefore invalid.

3) The amount demanded is a penalty and not a Genuine Pre-estimate of loss and is therefore a punitive charge.
The parking charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. As car park management co are alleging a contravention yet cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders this charge unenforceable. A valid parking ticket was purchased and a copy was sent to car park management co, they refute that the ticket was not bought by the driver and could have belonged to someone else, the burden of proof in their assumptions is with car parking co in this case.. No loss was made, nor was there any trespass in this case as a parking ticket was purchased and the appropriate fee was paid.

4) No landowner contract nor legal standing to form contracts or charge drivers or Keepers
As car park management co are not the owners of this land and as such they cannot form a contract with the driver or Keeper, I wish car park management co to provide me with a full un-redacted legally certified by an independent solicitor as a true copy of the original copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives car park management co the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, have car park management co breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

4) Inaccurate signage not compliant with BPA Code of Practice
Whilst it can be agreed that there are signs detailing charges and terms and conditions, these signs contain inaccurate information. Point 1 of the terms and conditions state that vehicles should be parked in the allocated parking bays. There are no defined allocated parking bays at this site; the surface is of large gravel type stones. BPA Code of Practice in relation to signage states “……… easy to see, read and understand”. The inaccuracy of Point 1 of the terms and conditions displayed calls into question the accuracy of the other points in the terms and conditions. The Oxford English Dictionary defines the word “understand” – infer something from information received. If the information received is inaccurate this would affect understanding.
In addition The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount due in the machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility and is not accurate in this case as a valid ticket was purchased and the appropriate fee paid.

Redx

the last 4) should be 5)

janesr1

thanks Redx just noticed that and have corrected. Thanks for all the previous advice too.

bazster

Kernow Parking Solutions does not exist. There is no such company. If (as is almost certainly the case) it is a sole trader (one Robert Ley) he is required by law to show his real name on all his business correspondence. He never does, so nothing he issues is worth the paper it's printed on, including anything he sends to PoPLA.

Furthermore, if he didn't show his real name on any signage in the car park, then there cannot possibly be any contract. You can't contract with a trading name, it has to be a person, a company or a partnership.

Similarly, he enters into landowner contracts in the name of "Kernow Parking Solutions", so he's operating without a valid landowner contract.

You could point out all these matters in your appeal.

Stroma

Makes you wonder how a sole trader without a legal identity can be in the BPA AOS? And how does a sole trader get kadoe with the dvla? Something a bit fishy here, maybe he trades as this parking company? Or that it's being ignored by certain organisations ?

janesr1

Thanks bazter & stroma...............interesting. I have sent in my appeal, but I will bear your information in mind just in case my appeal isn't upheld.
I am now on a mission to bring this to the attention of as many people as possible as in the past members of my family have had 4 of these fake parking notices. Thanks again everyone for your support and advice.

bazster

Stroma wrote: »

Makes you wonder how a sole trader without a legal identity can be in the BPA AOS? And how does a sole trader get kadoe with the dvla? Something a bit fishy here, maybe he trades as this parking company? Or that it's being ignored by certain organisations ?

He doesn't get KADOE, he's submitting paper requests. A guy over on PePiPoo who got a ticket from Ley has been trying to wheedle a copy of the request for his details out of the DVLA, but it's like getting blood out of a stone.

janesr1

Yesterday I had some good news my appeal was upheld and PCN cancelled by POPLA

The Appellant appealed against liability for the parking charge.


The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.


The Assessor’s reasons are as set out.


The Operator should now cancel the parking charge notice forthwith.

It is the Appellant’s case that the parking charge notice was issued
incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any
evidence to show a breach of the conditions of parking occurred, nor any
evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.
Christopher Adamson

Thank you to everyone on this forum for all your help and advice.
:T:T:T:T:T:T:T:T:T:T

Dee140157

Well done. If you haven't already done so, can you add this information to the POPLA thread. Good for other Newbies to see forum successes.

Coupon-mad

One for the 'POPLA decisions' thread! Well done!