AM Parking Services Ltd Appeal Advice

DS90

Hi,

I'm a newbie, and I've been through the Newbie thread and several of the other stickies; I have also perused the relevant sections of POFA 2012. The information has been very enlightening, but I apologise in advance if I have missed something that is explained in these threads.

A PCN was placed on the driver-side window of the car for which I am the registered keeper this morning. The PPC responsible is AM Parking Services Ltd. I intend to appeal following the guide in the Newbie thread, but I'm a little confused about one particular aspect. The thread advises waiting for a few weeks before submitting your appeal, but this will be before I've received an NTK - the windscreen PCN is only an NTD, is that correct? I am the keeper and was not the driver, so would I be compromising my position by appealing before receiving an NTK? Even writing this it feels like a rather simple question, but if somebody could clarify this particular aspect I'd be very grateful!

Furthermore, I intend to use the appeal template as outlined in the Newbie thread, but I also have a specific piece of evidence that I wish to use in the driver's defence. Can I incorporate this specifically into the appeal, or should I wait until the likely prospect of requiring a POPLA code? I have photographed two of the signs at the location nearest to where my vehicle was issued the PCN and both of them are extremely obscured by overgrown foliage. Moreover, the driver arrived at the location at night and I have also photographed the location again after dark, demonstrating that there is absolutely no lighting to illuminate the signs - it is literally pitch black. It seems to me that this would not merely constitute mitigating circumstances, but is a clear breach of signage. Could anybody shed some light (pun intended) on this issue, please? How should I include it into the appeal template if necessary?

Many thanks for any advice; this forum has been incredibly informative thus far, and I truly appreciate the time and effort sacrificed by the many experts offering their help!

D. S.

pogofish

You are grossly overthinking this.

The main reason for waiting is to cost the PPC some money and to see if they issue an out of time or otherwise non-compliant NTK. Which happens surprisingy often.

So why save them money/spare them from two potential opportunities to screw things-up in your favour?

Fruitcake

If you just want this to go away you throw everything at the PPC that you have in your arsenal in the hope that the PCN will be cancelled at the first appeal.
It doesn't always work though, so you then have to have more ammunition for PoPLA. The problem is by putting everything in your first appeal, you may have nothing left for PoPLA.
But, by appealing AS KEEPER at day 21, you may fool the PPC into not sending out a POFA 2012 compliant NTK. Now you have a piece of ammo you wouldn't have had if you had chucked everything into the first appeal.


You could include the poor signage in your first appeal, but the PPC may just say, "our signs are adequate, pay up or else," before nipping out and trimming the bushes and fitting lights to the signs.


Much better to use the template exactly as it is and keep back your best evidence for PoPLA. This will also cost the PPC 27 quid plus VaT.

DS90

Thank you both for the prompt responses, I really appreciate the help.

I will stick to the timeline and template for the first appeal on the Newbie thread then. Thanks again!

DS90

Hi again,

The first appeal was inevitably - and condescendingly - rejected, so we are now at the POPLA stage. However, the 56 day period since receipt of the windscreen ticket has now elapsed, and I have received no NTK. If my understanding of the relevant articles of PoFA 2012 is correct, this means that the PPC cannot hold me, as the keeper of the vehicle, liable for the PCN, and since they cannot identify the driver, surely there is no further action they can take?

Presumably this would feature as my primary defence in my POPLA appeal? I ask for further advice, though, because of the recent changes to the POPLA system. Having followed one of the links to Parking Prankster, the layout of the POPLA appeals process does not seem to allow for a freely constructed appeal. By filling out details such as 'motorist's name', etc., am I compromising my position as keeper of the vehicle? I saw it mentioned on a thread (somewhere!) that it is possible to simply attach a PDF of your own appeal - could anybody clarify this option?

Many thanks again for the tireless advice and assistance that is offered on this forum!

D.S.

Umkomaas

Don't use the website portal - send it good old fashioned snail mail with free certificate of posting from you Post Office (note - not the receipt for the stamp - but an actual certificate of posting!).

DS90

I will do that, then - thanks!

Would it be possible for anybody to review my POPLA appeal, please? Just to make sure that I haven't made any glaring errors or omitted something vital.

Date
POPLA verification code: XXX
Re: PCN No. XXX, AM Parking Services Ltd.
Vehicle registration

PCN issued XXX

Dear sir/madam,

I continue to challenge this ‘PCN’, as keeper of the abovementioned vehicle, on these grounds:

1. 1) No notice to keeper has been received within the prescribed timeframe, so there can be no keeper liability.
2. 2) The signage is improperly and inadequately displayed.
3. 3) No evidence has been offered that the operator in question has any interest in the land, nor the authority to pursue charges.
4. 4) The sum is extravagant and unconscionable: it does not represent a genuine pre-estimate of loss.

1. 1) No keeper liability:
No admissions have been made as to who the driver was, nor will they be; no assumptions can be drawn. I, as the keeper of the vehicle, shall not be held liable nor pursued any further by this creditor, since the appropriate actions were not taken by the said operator to adhere to the prescriptions of Schedule 4 of the Protection of Freedoms Act 2012. The following stipulations of the said legislation have not been met by the operator:


· Paragraph 6(1)(a) states that the creditor must give notice to the driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8.
· Paragraph 6(2) states that if a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.
· Paragraph 8(2) stipulates the requirements for such notice, none of which have been met by the operator.
· Paragraph 8(4) states that 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.
· Paragraph 8(5) outlines the relevant period for the purposes of sub-paragraph (4), which is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.


No such notice, in accordance with paragraphs 6(1)(a) and 6(2), has been received within the period described by paragraph 8(5). By default, the conditions of paragraphs 8(2) and 8(4) have not been met. Therefore, the operator has violated the terms of this legislation and cannot pursue the keeper of the vehicle any further for recovery of the said charge.

2. 2) Inadequate and improper signage:


Considering that the operator’s restrictions apply 24 hours a day, then the necessary provisions must be undertaken to ensure that the signage is visible and legible 24 hours a day. The operator’s signs are not properly illuminated, making it impossible to understand or agree to the parking conditions when arriving at night, which the driver informs me they did. As a result of this failure to illuminate the signs, no contract was wittingly entered into by the driver because no such contract was appropriately displayed.



As the operator’s own evidence confirms, there is no lighting accompanying the signs; as my evidence shows, there is no external lighting in this area whatsoever – it is pitch black. Therefore, the signs were not clearly displayed, nor was there ‘at least one visible sign’ where the vehicle was parked.


The operator’s evidence conveniently neglects to show the other dire issue with the signage. The nearest sign to the vehicle in question is entirely obscured by overgrown foliage. This sign, which is – absurdly – green, is just about viewable in one of the operator’s photographs, that taken at 7:17am (though the extent of camouflage that this sign enjoys is a testament to the poor quality of the signage); in the operator’s photograph taken at 7:44am, however, we can clearly see that from the angle of the vehicle in question, this sign is invisible.



My own evidence confirms this, clearly demonstrating that the nearest sign, as well as the next one along, is obscured by foliage.



The operator’s evidence makes it abundantly clear that the only sign that is supposedly visible would not be so at night, since it is not illuminated either by a fixed light to the sign, nor by street lighting in the area. Also, the evidence clearly shows that the said sign would not be illuminated by the vehicle’s headlights; even so, the burden does not lie with the visitor to improvise lighting in order to read the parking conditions – the onus is on the operator to appropriately display the signage. In contrast to this, for example, the signs belonging to UKPC, who monitor the nearby residential car parks, are clearly affixed to lamp posts, as shown in my evidence. The cessation of such signs, and the absence of equivalent signs in the area monitored by the operator in question, led the driver to the conclusion that no such enforcement was in place.


Therefore, without proper illumination, a 24 hour contract can hardly be enforced, as the driver cannot be expected to agree to the terms of a contract that they physically cannot see. To compound this flaw, the nearest sign to the vehicle, as well as others in the area, is entirely obscured by overgrown foliage. Paragraph 2(3)(b)(ii), schedule 4 of the Protection of Freedoms Act 2012, clearly states that notices of parking enforcement must be adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. The signage in this area is inadequately maintained and improperly displayed, and no contract was wittingly entered into by the driver.

3. 3) No evidence of authority to pursue charges nor form contracts with drivers on this land:


Paragraph 5(1)(a), schedule 4 of the Protection of Freedoms Act 2012 states that in order for a creditor to have the right to claim unpaid parking charges from the keeper of a vehicle, they must have the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges. The burden of proof is on the operator to show that it had authority to issue the said ‘PCN’; no such evidence has been presented, and I am not satisfied that the operator had the relevant authority. I, therefore, put it to the said operator to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between themselves and the landowner.

4. 4) The sum is extravagant and unconscionable: it does not represent a genuine pre-estimate of loss.


Despite the protestations of the operator in question that the decision in ParkingEye vs Beavis (2015) justifies their extravagant and unconscionable parking charge, no decision has yet been made by the Supreme Court in the Beavis case (according to the POPLA website, accessed on 19/10/2015). Furthermore, as per my second point in this appeal, the so-called terms that the operator refers to in their refutation were not displayed properly in this instance.


Therefore, I maintain that, pending resolution of the Beavis case, the sum is extravagant and unconscionable, and does not represent a genuine pre-estimate of loss. In this regard, it is believed that the Supreme Court’s decision in ParkingEye vs Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I request that my appeal be adjourned pending the outcome of the Beavis case.

To summarise, I refute liability for the ‘PCN’ on the following principles:


1. 1) There is no keeper liability due to the operator’s failure to comply with the terms of POFA 2012.
2. 2) The signage is inadequate and improperly displayed, nullifying any possible contract between the operator and the driver, as this was not wittingly entered into on behalf of the latter.
3. 3) The operator has provided no evidence of their authority to pursue charges nor form contracts with drivers on this land.
4. 4) Pending the resolution of ParkingEye vs Beavis, I maintain that the sum of this ‘PCN’ is extravagant, unconscionable, and does not represent a genuine pre-estimate of loss.

Yours faithfully,
XXX
Contact information, etc.

DS90

I have received confirmation from POPLA that my appeal was successful - the operator did not provide any evidence for the case (I think we had them cornered anyway as they hadn't sent out an NTK).

Huge thanks to everybody on this website that has dedicated their time to offering advice. We were on the verge of paying this thing immediately, having no idea how to fight it, but you saved us £100 three weeks before going on holiday! A friend of ours who was issued a ticket on the same day (they were visiting the same friends) has also had their POPLA appeal accepted, so the advice on here has kept £200 from the PPC and cost them through the appeals process!

I wondered if anybody could offer one final piece of advice: while my appeal was still undergoing consideration by POPLA, I received a ludicrous debt recovery letter from Parking Collection Services, in which the fee had inexplicably risen to £120. Would I be entitled to complain to the BPA (both companies are members) considering that my appeal was still unresolved and they were harassing me with misleading and 'intimidating' debt recovery action?

Thank you again.

Umkomaas

I wondered if anybody could offer one final piece of advice: while my appeal was still undergoing consideration by POPLA, I received a ludicrous debt recovery letter from Parking Collection Services, in which the fee had inexplicably risen to £120. Would I be entitled to complain to the BPA (both companies are members) considering that my appeal was still unresolved and they were harassing me with misleading and 'intimidating' debt recovery action?

Absolutely complain to the BPA - as well as the DVLA. Send them both copies of your dated POPLA confirmation and the dated PCS letter.

Make sure you retain a copy of your POPLA confirmation safe - while they've upheld your appeal, and that should be the end of things, if the PPC's admin is sloppy (as it seems to be) you never know what they might be doing in a few years time. There is a six year period when an alleged debt might be pursued.

Lay it on thick with the BPA and DVLA. Give the PPC some return aggro!

Well done on your POPLA success (and your friend's too).

Coupon-mad

aos@britishparking.co.uk

and

david.dunford@dvla.gsi.gov.uk

Fruitcake

Well done on your wins. Would you be so kind as to post your appeal and the corresponding PoPLA assessor's decision on the POPLA decisions thread for others to gain comfort and help.