Do I stand a chance?

Fruitcake

s100000 wrote: »

well the operator has sent their side of it (evidence park) and there is now 7 days to refute their claims.


is there anywhere I can see how to beat what they have said in their defence, although I have answered most of it in the appeal sent to POPLA originally.


Should I post what they have said in their evidence pack here?


thanks.

Yes, otherwise we have no idea of the content so can't comment in it. Obviously redact any personal information including PCN number.

s100000

Operator Name

Operator CaseSummary

This PCN wasissued because the motorist’s vehicle was found to be stopping/waiting/parkedin an area where it is strictly prohibited. We must bring to your attentionthat we have reviewed our photographic evidence and confirm that the vehiclewas found to stop at the location, for other purposes than to read the signage,meaning that the motorist breached the terms and conditions as on the warning signs.The photographic evidence thus does in fact prove the contravention occurred.

The site ….. islargely illuminated and a well-lit area. The signs on display there would havebeen noticeable upon entering and as there are numerous signs (29) on thatparticular site they would have been extremely difficult to miss or not takenotice of. We have specific clear, conspicuous and legible warning signage atthe site that the contravention occurred, which inform/warn drivers of ourterms and conditions of parking. Our signs in that location are in compliancewith the British Parking Association Code of Practice paragraph 18.2, thewarning signage is larger than the British Parking Association’s (BPA) Code’sminimum requirement of at least 450mm x 450 mm in size.

In response tothe motorist’s comments about signage in their appeal, we must bring to yourattention there are signs on the entrance clearly warning drivers about thearea being private property, and therefore that restrictions are in force(please find photographic evidence of this attached). The onus is on the driverto read and adhere to the terms of parking when entering a controlled parkingarea on private land.

The motorist hasclaimed that we have no proprietary interest in the land or contractualauthority to form contracts with motorists. However, we have a valid, in datecontract with the landowner and we are contracted to enforce the terms ofparking at this location and issue PCN’s to all vehicles, which breach thedisplayed terms of parking. Please find this attached. As the motorist acted inbreach of the terms displayed around the site, the PCN remains valid andlawfully issued in accordance with our contract with the landowner. Ourcontract is proof of our interest and legal authorisation to offer parkingspaces on a contractual basis. We’d like to address the motorist’s view that nocontract was made between the motorist and Park Direct UK Ltd. There arenumerous ways in which acceptance of a contract can be constituted, one ofwhich is ‘acceptance via conduct’ (or actions). An example of this can be seenin the cases Arthur v Anker [1996], Thornton v Shoe Lane Parking [1971] andVine v Waltham Forest London [2000]. The facts of these cases should help youunderstand the fundamentals of acceptance of a binding contract in a car parkenvironment. The numerous signs on display at the site act as offers tocontract. The acceptance of the contract is legally binding once you enter theprivate property and acknowledge the various signs and notices we have ondisplay. The acceptance thus occurs by conduct, when the driver remains on thesite. The consideration given by us for the contract is in the form ofproviding a space for the motorist to park. The motorist’s consideration is theimplied promise to park legally, or pay the PCN amount upon breach of the termsof parking.

We must remindyou that it is the driver's duty to ensure that they observe and adhere to theparking restrictions in force when entering private property. According to theBPA Code of Practice paragraph 13.2, ‘You should allow the driver a reasonable‘grace period’ in which to decide if they are going to stay or go. If thedriver is on your land without permission you should still allow them a graceperiod to read your signs and leave before you take enforcement action’. Ourticket attendants are instructed to wait and give a reasonable ‘grace period’to allow the driver to enter the site and read our terms and conditions beforeissuing a ticket to ensure we are fair, reasonable and compliant with theBritish Parking Association’s Code of Practice. This was done on the date inquestion, but since the motorist used the site for purposes other than readingthe terms of parking and deciding to leave, they breached the terms and the PCNwas issued correctly. The photographic evidence clearly shows the vehicleparked and left unattended on the site, proving that the contravention didoccur. We would also like to inform you that all of our photographic devicesare calibrated to ensure they are precisely and accurately GMT time stamped so theyare in accordance with the BPA's Code of Practice.

In response tothe motorist’s claim that keeper liability was not established, we must remindyou that under section 4(1) of the Protection of Freedoms Act 2012 (POFA) wereserve the right to recover any unpaid parking charges from the registeredkeeper of the vehicle in question. The wording of the PCN sent to the motoristcomplies fully with POFA. We, as Park Direct UK Ltd, are the creditor, and thisis clearly noted on the PCN at numerous intervals. Please find all of thephotographic evidence taken at the time of contravention attached, whichclearly shows the vehicle’s licence plate. Also, the vehicle is in clear viewof many of our warning signs at the site in question. Please find the picturesof the site and site map, which confirm that the vehicle was at the site …. at the time of contravention.

In relation to the motorist’s claim that weare bound to comply with Consumer Contracts Regulations, we contend that we arenot in this instance. The amount of our charge has been calculated in advanceand is clearly displayed on the notices and signage at the site. As such, thecharge is accepted upon the motorist using our site after being given a chanceto read the signage, and they thus cannot claim that there are any TradingStandards or Consumer Regulation breaches as they have accepted the conditionsat the point of opting to use the site. On accepting the parking conditions weargue that the motorist cannot now seek to effectively renegotiate them or todismiss them in their entirety. The charge of £100 reduced to £60 is asadvertised and within BPA guidelines. For a breach of contract, as here, clause19.5 of the BPA Code of Practice states this charge must be based on a genuinepre-estimate of the loss suffered, resulting from the breach of contract. TheBritish Parking Association (BPA) suggests its members’ parking charges shouldnot exceed £100. The charges are in line with this and are therefore bothreasonable and proportionate to the breach. We are governed by the BPA Code ofPractice and the Protection of Freedoms Act 2012, with which we are fullycompliant. The location in which the contravention occurred is a commercialproperty, which is leased to the leaseholder and included in their lease is theright to park/use the parking bays for their customers. If the leaseholder wereunable to provide parking, they would lose customers and cancel their leasethus, making this charge commercially justified.

In response tothe motorist’s claim that we acted in breach of our KADOE contract with theDVLA, this is not applicable as there has been no breach. Please feel free tocontact the DVLA and confirm this with them, who are aware that our parkingattendants use MNPR in collecting photographic evidence. There has been noevidence provided by the motorist surrounding this point. Automatic NumberPlate Recognition (ANPR) is not a mandatory requirement as per the BPA code ofpractice, in paragraph 21.1. There, it is provided that ‘you may use ANPRcamera technology to manage, control and enforce parking in a private carpark’. We are thus not required to follow ANPR guidelines, as we do not useANPR. Although the PCN was not left on the motorist’s vehicle, it was issuedvia Manual Number Plate Recognition (MNPR) and then sent via the post to theregistered keeper after we obtained their details from the DVLA through thereasonable cause request. It thus remains fully enforceable.



We would alsolike to confirm that all of our parking attendants act professionally and atall times wear full uniform and ID. The images were not secretly taken as itcan be seen from the position of the photographic evidence, the attendant stoodin clear view of the vehicle to take the images. Contrary to the motorist’sclaims, our parking attendant had no duty to warn the driver at the time ofcontravention that they were in breach of the terms of parking. The numerouswarning signs, including those at the entrance to the site, clearly display theterms of parking and consequences of breach of such terms. Please find attachedall supporting evidence to this appeal, which clearly indicate that themotorist was in breach of our parking restrictions

On the evidence pack to POPLA the operator has changed the pictures sent on the PCN and appeal reply, where I believe they have put an effect on the picture to make It seem more lighter and clearer. These pictures now suddenly shows the vehicles number plate. Additionally, the edited pictures also show the areas well lit (but its not).

Lastly, they have also included an additional picture which shows the cars windscreen and 'no driver' inside.

Can I argue the above point and show POPLA the original photos they sent to me and the edited ones they have sent in their evidence pack for POPLA? Also withholding a picture from me which they had 2 opportunities to send me as their 'proof'?

patman99

Yes, you can include the original photos as sent by the PPC to you. Now get that appeal in pronto, or you will run out of time.

Coupon-mad

Yes but you do have seven days so take the weekend to get the comments right. They say this:

''We have specific clear, conspicuous and legible warning signage''.

But in the site photos of signs is the amount of the parking charge in £ prominent?

s100000

The operator says ''We have specific clear, conspicuous and legible warning signage''
In refuting this claims by the operator, I would first like to mention that they have not met the BPA code of practice with signage and the sight being well lit as they so claim. The evidence has already been submitted to yourselves to show that this area is in fact not a largely illuminated and a well-lit area like Park Direct say. Furthermore, evidence has also been submitted which shows the signs fail to meet the BPA code of practice in regards to the signage being too low and too high at the entrance of the car park, therefore not being in the line of sight of the driver (please see my original appeal to you, POPLA). Therefore, how can the driver take note of these signs when they are not as clear as Park Direct state. Again, I put park direct to strict proof to show photographic evidence of their signage to this area, not during the day, but at night – to show how hard the signage is to see and how badly lit the area is. Lastly, there has been no site map provided for this location from ParkDirect. I believe evidence is needed to show the ’29 signs’ claimed by ParkDirect for this site, where the location is for each and every sign and clear pictures at night at the time of the contravention – which will show how hard they are to read or even see. Evidence has already been admitted to show the two most important signs, at the entrance of this site which again shows that they are both not placed in the correct position.

In regards to the operator claiming they have submitted a contract with landowner, I ask whether this contract is enacted or a full contract? As they need to provide the full picture. I again ask for them to show this to me the registered keeper, which they should have no problem doing. But to date I have not received anything from them.

The driver formed no contract with Parkdirect, the driver did not agree to pay for parking at the sum of £60 and therefore there was no breach of the terms of parking,

Park direct say in their evidence pack that they are fully compliant with the POFA Act 2012. As far as I am aware, they have sent you their version of the PCN. However I will also send photographic evidence of the PCN which was sent to the registered keeper as well as their reply to the original appeal sent to them. The reason for doing so, is the license plate was clearly not visible on both occasions in all the pictures sent from ParkDirect to me. However in the evidence pack which ParkDirect have you, the pictures seem to be different. Therefore, what I believe has happened is there has been some sort of editing of the photographic evidence of the contravention, perhaps an effect on the picture by ParkDirect. This is deceit, as the vehicles number plate could not be seen from the photographic evidence before, can now suddenly be seen, as well as apparent signage. Again I ask you to look at the photographic sent in my original appeal to yourselves which clearly shows that the area has no lighting and the signs unlit with no camera flash at night after 11pm. Due to this unprofessional behavior by ParkDirect , I will be reporting them to the BPA for bad practice. Again I have attached the pictures which were sent to me originally, to what they have sent to yourselves for your comparison.


This is what I have come up with so far.. I need to do bit more digging. I have tried to find info on MNPR - manual numberplate recognition, but cant find anything ROTFL

ampersand

Some typos and slightly stockier re-phrasing suggestions, op.
Attention to lay-out, grammar, punctuation, spelling and spacing, very little 1st person - all necessary.

As we always say, make the assessor your friend, even though OSL are new and we don't fully know how they skip and jump yet.
[also assume you have read up on this one from PP, while noting Redx's proviso, #56]:
http://parking-prankster.blogspot.co.uk/2014/06/a-warning-to-potential-customers-of.html]
#
The operator claims ''We have specific clear, conspicuous and legible warning signage''

In refuting this claim, I ask OSL to note that the operator has not obeyed the BPA code of practice for signage, Their non-compliant signage is not even correctly positioned!

Evidence has already been submitted by the Keeper to show that this area is not 'largely illuminated' and 'a well-lit area' as falsely stated by Park Direct. Please bear in mind the late hour of this alleged 'parking event'.

The gymnasium interior may be well-lit during business hours, but that is not Park Direct.

Furthermore, the signs fail to meet the BPA code of practice by not being in the line of sight of a driver.

Please refer again tomy original POPLA appeal.

The Keeper has been put to the trouble of a subsequent visit to search out the 29 points of signage claimed to be in situ by the operator. They were not found. No site map has been provided by Park Direct for this location.

I put them to strict proof of contemporaneous evidence to show the ’29 signs’ claimed by them for this site, fully compliant, accurately mapped.and dated, without photoshopping, editing or alteration.

The Entrance signs are both too low and too high for compliance and, in further contravention, mutli-colured, non-reflective, unlit and on the floor of the car park as already submitted in that POPLA appeal..

No car driver, maintaining safe control of a vehicle entering the car park can spot these signs, note and fully absorb any terms and Conditions stated thereon, let alone 'agree' to pay £100 or £60 for some alleged 'contravention'. Those figures are nowhere to be seen.

Again, I put Park Direct to strict proof to show contemporaneous photographic evidence of their signage to this area, matching the hour and season. That the wider area is badly lit all year round poses other personal safety hazards.

Park Direct's signage is unfit for purpose.

Please note again that neither of the two most important signs at the site entrance is compliant.

With regard to the operator claiming to have submitted a contract with the site landowner, the pertinent question is whether this contract is redacted or a full contract?
Only a full contract can reveal the exact terms of any arrangement, agreement or ability to claim or exact fees for.alleged 'parking events'.

To date, nothing has been received.

The driver formed no contract with Park Direct.

The driver did not agree to pay for parking at the sum of £60 and therefore there was no breach of any claimed term for parking,

Park direct say in their evidence pack that they are fully compliant with the POFA Act 2012.

As far as I am aware, they have sent you their version of the PCN.

However I am including photographic evidence of the actual PCN, obtained by the keeper, as well as the keeper's reply to the original appeal sent to Park Direct.

The reason for doing so is to show the licence plate was clearly not visible on either occasion, or in either picture sent from Park Direct to the keeper.

However, in their evidence pack, ParkDirect have somehow 'doctored' the pictures.

Certainly, they differ significantly from the originals, as can be seen. The originals do NOT show [reg.no]'s number plate. No signage can be seen.

Again, I must ask you to look at the photographic evidence sent in my original appeal . This clearly shows that the area has no lighting and the signs are unlit, with no camera flash, after 2300h in an empty car park in October.

The difference between these and Park Direct's later submissions is obvious. Such unprofessional behaviour by this operator means they will be reported to the BPA.
#
Make sure you do report them, op.Await others' input.
No more time atm.

Umkomaas

In regards to the operator claiming they have submitted a contract with landowner, I ask whether this contract is enacted or a full contract?

That should be 'redacted'.

State that nothing other than an unredacted contract with the landowner can provide the necessary assurance that the operator has full authority to issue tickets and pursue these to court level, and in the process meeting every requirement of the BPA Code of Practice paragraphs 7.1 to 7.3 which state:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent).The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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:
the boundaries of the land can be clearly defined
any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
any conditions or restrictions on the types of vehicles
that may, or may not, be subject to parking control and enforcement
who has the responsibility for putting up and maintaining signs
a the definition of the land on which you may operate, so that
e the definition of the services provided by each party to the agreement

Put the PPC under real pressure in this appeal point.

ampersand

Already corrected, Umkomaas -
'With regard to the operator claiming to have submitted a contract with the site landowner, the pertinent question is whether this contract is redacted or a full contract?'

Coupon-mad

Coupon-mad wrote: »

in the site photos of signs is the amount of the parking charge in £ prominent?

Please answer my question specifically, not from any stock mock up of the sign but from the evidence pictures on site. Can you easily and very prominently see the amount in large lettering?

ampersand

Came back specifically to see if op had been back.

Hope U's excellent expansion in #78 was included if this has gone to popla stage. Ditto, c-m's point. Otherwise, hope course laid out in pm was followed IN TIME.

Please update us when you can, op.