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PCN from PPS at Hull Port - Received NTK - What next?
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willberine
Posts: 69 Forumite
Hello all,
A windscreen ticket was received from PPS at Hull Port for having 'no valid ticket or permit displayed'
Ticket had been paid & displayed for the duration required and had been placed them on the dashboard only for them blow off - as has been found in several other cases I have read.
There was no response to the windscreen ticket and followed the sticky threads advice to wait for the NTK to arrive - which it did yesterday, 53 days after the ticket! So PPS do not know who the driver was.
Having looked at the NTK it does not specifically mention POFA2012 and from looking at the bullet points in POFA section 8 the NTK does not include the following:
e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
It only says on the back above the payment info:
'failure to supply the informtaion may result in a claim being issues against you personally as the registered keeper of the vehicle'
So my question is, what is the next course of action? There is no e-mail address to send a 'soft appeal' to on the NTK but there is on the PCN - but this would allude to the fact that I received the PCN as the RK?
Am I best to post a soft appeal and request a POPLA code or go full pelt straight away with the full blown POPLA appeal I have drafted, which I copy in below.....
On **/**/** Premier Parking Solutions issued a parking charge notice of £130
I am the registered keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1. The amount demanded is not a Genuine Pre-estimate of loss.
2. The parking company has failed to establish keeper liability.
3. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.
4. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.
5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required.
Here are the detailed appeal points.
1.
The amount demanded is not a Genuine Pre-estimate of loss
The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.
For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.
2. Failure to establish keeper liability
This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper). The Operator has issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Byelaws 2003 (the byelaws) taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'.
For this Operator to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this Quay.
The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal courts and as such Parking Eye has no standing whatsoever to enforce Civil parking charges or parking systems, as is it not designated as an authorised person within the meaning of the byelaws. Additionally, the byelaws also make clear that the Port of Southampton to which they apply includes the Town Quay.
As such, therefore, if this appeal is rejected, I will consider whether a Judicial Review might lie against POPLA and London Councils for a wholly unreasonable and unlawful decision, contrary to the criminal law.
As such I request that POPLA take "Judicial notice" of the attached byelaws, and order that Parking Eye has no standing to enforce parking contracts on this site whatsoever, thereby cancelling this AND ALL OTHER notice to keepers relating to this site.
3. No valid contract with landowner
I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease).
It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.
It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
4. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
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 presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required.
A payment for parking was made for the time the vehicle was located in the parking bay, and both tickets were displayed on the dashboard after payment. Adverse weather conditions at the time may have caused the tickets to have fallen from the dashboard, explaining the photographic evidence from Premier Parking Solutions. I suggest that a sticker be provided on tickets (that many pay and display machines provide) to prevent this type of incident, or at least all information being on 1 ticket instead of 2. I have one of the tickets in my possession and a copy of the debit paid to PPS and they have been attached to this appeal letter as proof of payment along with the booking made with P&O showing the dates to which this parking charge relates.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
This concludes my appeal.
A windscreen ticket was received from PPS at Hull Port for having 'no valid ticket or permit displayed'
Ticket had been paid & displayed for the duration required and had been placed them on the dashboard only for them blow off - as has been found in several other cases I have read.
There was no response to the windscreen ticket and followed the sticky threads advice to wait for the NTK to arrive - which it did yesterday, 53 days after the ticket! So PPS do not know who the driver was.
Having looked at the NTK it does not specifically mention POFA2012 and from looking at the bullet points in POFA section 8 the NTK does not include the following:
e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
It only says on the back above the payment info:
'failure to supply the informtaion may result in a claim being issues against you personally as the registered keeper of the vehicle'
So my question is, what is the next course of action? There is no e-mail address to send a 'soft appeal' to on the NTK but there is on the PCN - but this would allude to the fact that I received the PCN as the RK?
Am I best to post a soft appeal and request a POPLA code or go full pelt straight away with the full blown POPLA appeal I have drafted, which I copy in below.....
On **/**/** Premier Parking Solutions issued a parking charge notice of £130
I am the registered keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1. The amount demanded is not a Genuine Pre-estimate of loss.
2. The parking company has failed to establish keeper liability.
3. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.
4. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.
5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required.
Here are the detailed appeal points.
1.
The amount demanded is not a Genuine Pre-estimate of loss
The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.
For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.
2. Failure to establish keeper liability
This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper). The Operator has issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Byelaws 2003 (the byelaws) taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'.
For this Operator to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this Quay.
The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal courts and as such Parking Eye has no standing whatsoever to enforce Civil parking charges or parking systems, as is it not designated as an authorised person within the meaning of the byelaws. Additionally, the byelaws also make clear that the Port of Southampton to which they apply includes the Town Quay.
As such, therefore, if this appeal is rejected, I will consider whether a Judicial Review might lie against POPLA and London Councils for a wholly unreasonable and unlawful decision, contrary to the criminal law.
As such I request that POPLA take "Judicial notice" of the attached byelaws, and order that Parking Eye has no standing to enforce parking contracts on this site whatsoever, thereby cancelling this AND ALL OTHER notice to keepers relating to this site.
3. No valid contract with landowner
I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease).
It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.
It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
4. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
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 presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required.
A payment for parking was made for the time the vehicle was located in the parking bay, and both tickets were displayed on the dashboard after payment. Adverse weather conditions at the time may have caused the tickets to have fallen from the dashboard, explaining the photographic evidence from Premier Parking Solutions. I suggest that a sticker be provided on tickets (that many pay and display machines provide) to prevent this type of incident, or at least all information being on 1 ticket instead of 2. I have one of the tickets in my possession and a copy of the debit paid to PPS and they have been attached to this appeal letter as proof of payment along with the booking made with P&O showing the dates to which this parking charge relates.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
This concludes my appeal.
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Comments
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This looks like a good appeal. They'll probably reject it but all you are really after is a POPLA code so you can appeal to them (and win if you follow the sticky thread).
Under the POFA the PPC has 56 days to serve a NtK where a notice to driver has been issued.
PPS have their appeals email address on their website do they'll never know where you got it from.0 -
Are you saying they have charged £130 on their fake ticket? And what discount is there for early payment? The appeal looks like a popla appeal, I would go for the one by coupon mad in post one of the sticky thread by her myselfWhen posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
We don't need the following to help you.
Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
:beer: Anti Enforcement Hobbyist Member :beer:0 -
The original PCN was £100 or £50 if paid wthin 14 days - standard.
The NTK now wants £130.
Yes, it is a POPLA appeal. I will send a first soft appeal using coupon-mads template so that I can get a POPLA code.0 -
That's confusing, can you tell me when they wrote to you originally? Because that would be the NtK and this would be the reminder, I doubt they will give you a popla code if you are lateWhen posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
We don't need the following to help you.
Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
:beer: Anti Enforcement Hobbyist Member :beer:0 -
They didnt - I received a PCN on the windscreen and waited for the NTK before responding. As per the sticky/newbie thread....?
The NTK is dated **/03/140 -
There was a parking company mentioned on another thread somewhere who put one amount on their notice to drivers and then a higher amount on their NtK's, apparently to cover the extra cost of the DVLA search and sending the notice.0
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Thanks guys, I have read most of those links already and actually based the POPLA appeal above on 'parkingfinemagnet' appeal which was successful.....
So, I will email an inital appeal as per the sticky to PPS and see what they say, there is no mention of a request for POPLA code in the template but I assume that is no problem!0 -
No it's not a problem. For the PPC to be compliant with POFA they should issue one as a matter of course.0
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the more rope they get, the more they are likely to hang themselves with it !
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