Park Direct evidence from a mobile device but no PCN served

Coupon-mad

I think I would put this at the end of point #4 instead of #5:

I hereby challenge this “parking charge notice” as I believe the driver did not agree to a contract as the driver did not see the only sign mention above.

Apart from that, I'd say 'game on'! Submit it as a PDF under 'other' on POPLA's website.

elponce28

Thanks Coupon-mad

Submitted!!
I proof read it and fixed a couple of things here and there.
Hoping for the best and will update you as soon as I hear from them.

elponce28

Ok I just heard from POPLA. They let me know that the operator has come back to them (about time!) and I have seven days to make comments. A couple of things I picked up:
-They are lying saying that there are numerous signs (there is only one).
-Also, they say I don't state exactly why they are not complying with POFA.


Please help!! The comments are below, thank you.


This PCN was issued because the motorist’s vehicle was found to be stopping/waiting/parked in an area where it is strictly prohibited. There are numerous signs throughout the site including the sign in close proximity of their vehicle to ensure all motorists are fully aware of the restriction in force. We must bring to your attention that we have reviewed our photographic evidence and confirm that the vehicle was 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. Despite the motorist’s claim that the PCN did not state the exact location of the contravention, it did include photographic evidence of the vehicle at the site in question. Also, the appeal reply (attached) that we sent to the motorist, informed them of the location. Please find the attached photographic evidence, including the time stamped, showing a appellant parked at the site from the vehicle in question. Our ticket attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the site and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. This was done on the date in question, but once the motorist did not use the grace period to read and acknowledge the warning signs, but instead used the site to park their vehicle, the grace period became invalid. This is because at that point, the motorist used the site in breach of the terms of parking. Our photographic evidence shows the vehicle being on the site, and at all times within close proximity to warning signs. There are also multiple signs at the entrance, contrary to what the motorist has alleged in their appeal. We hold that when entering private property, the onus is on the driver to read the warning signage. We would also like to inform you that all of our photographic devices are calibrated to ensure they are precisely and accurately GMT time stamped so they are in accordance with the BPA's Code of Practice. The photographic evidence clearly shows the motorist stopping and waiting and dropping off at the site, in breach of the displayed terms of parking. We hold that this proves the compliance of our photographic evidence with the BPA Code of Practice. We submit that there was a contract made between the motorist and us, once they remained on the site. There are numerous ways in which acceptance of a contract can be constituted, one of which is ‘acceptance via conduct’ (or actions). An example of this can be seen in the cases Arthur v Anker [1996], Thornton v Shoe Lane Parking [1971] and Vine v Waltham Forest London [2000]. The facts of these cases should help you understand the fundamentals of acceptance of a binding contract in a car park environment. The acceptance of the contract is legally binding once you enter the private property and are given a chance to acknowledge the various signs and notices we have on display. In response to the motorist’s comments about the signs, we hold that we have specific clear, conspicuous and legible warning signage including the sign in close proximity of your vehicle, which inform/warn drivers of our terms and conditions of parking. The warning signage is larger than the British Parking Association’s (BPA) Code’s minimum requirement of at least 450mm x 450 mm in size, and we have won several cases with POPLA which proves that our warning signs in that location are clear and sufficient. From the position of the motorist’s vehicle, the warnings signs were clear and visible. The requirements for a Notice to Keeper are set out in section 9(2), Schedule 4 of the Protection of Freedoms Act 2012. They include that it must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”, “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full”, “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable”, “specify the total amount of those parking charges that are unpaid”, and “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available”. Further, our company registration number and a statement confirming that we received the keeper’s details from the DVLA are also present in the PCN. There is no requirement in the statute for the warden’s number to be identified and thus, the PCN is compliant with the POFA 2012. We contend that the PCN amount of £100 is not punitive, unreasonable, and in response to the motorist’s claim that it does not represent a genuine pre estimation of loss, we would like to refer you to the recent court case: Parking Eye VS Barry Beavis 2015] EWCA Civ 402. The judge held that the conditions on which a motorist can use the car park were prominently displayed and contained no concealed pitfalls or traps. The judge summarised that he was satisfied in the case that the amount payable by the appellant is not extravagant or unconscionable and that the court should therefore not decline to enforce the contract. The judge held that a motorist who parks his car in the car park does so on the terms displayed in the notice. As a result, he enters into a contract with ParkingEye to abide by the rules of the car park, which include an obligation to leave within two hours. He also agrees that if he overstays he will pay the parking charge (£85, reduced to £50 for payment within 14 days). The judge accepted that ParkingEye did not suffer any specific financial loss if a motorist overstayed, because, if the space in question had been vacated, it would have either have remained unoccupied or would have been occupied by another car free of charge. He therefore held that the parking charge had the characteristics of a penalty, one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. In reaching that conclusion he was influenced by the terms of section 56 and schedule 4 of the Protection of Freedoms Act 2012, which confer on operators of private car parks the right to recover parking charges from the registered keepers of vehicles. The location in which the motorist parked in is a commercial property, which is leased to the leaseholder and included in their lease is the right to park/use the parking bays for their customers. If the leaseholder was unable to provide parking, they would lose customers and cancel their lease thus, making this charge commercially justified. In accordance with the BPA Code of Practice, our parking attendants used manual number plate recognition. The Code states that automatic number plate recognition (ANPR) “may” be used, showing that it is not mandatory. The following is an excerpt from the code at paragraph 21.1: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner”. The motorist has claimed that the photographs taken by our parking attendant were not close up, but this does not make them invalid. Please see attached the photographic evidence, which clearly show the license plate number of the vehicle, and the warning signs in clear view from the position of the vehicle. We would also like to inform you that all of our photographic devices are calibrated to ensure they are precisely and accurately GMT time stamped so they are in accordance with the BPA's Code of Practice. The photographic evidence clearly shows the motorist stopping and waiting at the site, in breach of the displayed terms of parking. We hold that this proves the compliance of our photographic evidence with the BPA Code of Practice. We would also like to inform you that all of our photographic devices are calibrated to ensure they are precisely and accurately GMT time stamped so they are in accordance with the BPA's Code of Practice. The photographic evidence attached clearly shows the vehicle parked at the site in question, in breach of the displayed terms of parking. All actions undertaken by Park Direct UK Ltd have met the strict criteria of the Protection of Freedoms Act 2012. The motorist has not stated as to why they believe us to have not done so. Please find attached all supporting evidence to this appeal, which clearly indicate that the motorist was in breach of our parking restrictions.

Redx

read the rebuttals in the links in the NEWBIES sticky thread, seeing as you are at the rebuttal stage

Coupon-mad

They are lying saying that there are numerous signs (there is only one).

Did they include pictures of the PCN/NTK (both sides) and the 'numerous signs' or a site map with flags or large coloured dots suggesting where all those signs are? Or have they in their evidence only shown the single sign? Was it shown to be near the vehicle, in their evidence pictures?

Did they include a current contract signed by the actual landowner (not a managing agent) which confirms the restrictions and allows this PPC to 'pursue PCNs in the courts if necessary'?

I have broken up this wall of text because no-one would read it the way you've shown it! NOW we can look at their words:

''This PCN was issued because the motorist’s vehicle was found to be stopping/waiting/parked in an area where it is strictly prohibited.

There are numerous signs throughout the site including the sign in close proximity of their vehicle to ensure all motorists are fully aware of the restriction in force. We must bring to your attention that we have reviewed our photographic evidence and confirm that the vehicle was 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.

Despite the motorist’s claim that the PCN did not state the exact location of the contravention, it did include photographic evidence of the vehicle at the site in question. Also, the appeal reply (attached) that we sent to the motorist, informed them of the location.

Please find the attached photographic evidence, including the time stamped, showing a appellant parked at the site from the vehicle in question.

Our ticket attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the site and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. This was done on the date in question, but once the motorist did not use the grace period to read and acknowledge the warning signs, but instead used the site to park their vehicle, the grace period became invalid. This is because at that point, the motorist used the site in breach of the terms of parking.

Our photographic evidence shows the vehicle being on the site, and at all times within close proximity to warning signs. There are also multiple signs at the entrance, contrary to what the motorist has alleged in their appeal. We hold that when entering private property, the onus is on the driver to read the warning signage.

We would also like to inform you that all of our photographic devices are calibrated to ensure they are precisely and accurately GMT time stamped so they are in accordance with the BPA's Code of Practice. The photographic evidence clearly shows the motorist stopping and waiting and dropping off at the site, in breach of the displayed terms of parking. We hold that this proves the compliance of our photographic evidence with the BPA Code of Practice.

We submit that there was a contract made between the motorist and us, once they remained on the site. There are numerous ways in which acceptance of a contract can be constituted, one of which is ‘acceptance via conduct’ (or actions). An example of this can be seen in the cases Arthur v Anker [1996], Thornton v Shoe Lane Parking [1971] and Vine v Waltham Forest London [2000]. The facts of these cases should help you understand the fundamentals of acceptance of a binding contract in a car park environment. The acceptance of the contract is legally binding once you enter the private property and are given a chance to acknowledge the various signs and notices we have on display.

In response to the motorist’s comments about the signs, we hold that we have specific clear, conspicuous and legible warning signage including the sign in close proximity of your vehicle, which inform/warn drivers of our terms and conditions of parking. The warning signage is larger than the British Parking Association’s (BPA) Code’s minimum requirement of at least 450mm x 450 mm in size, and we have won several cases with POPLA which proves that our warning signs in that location are clear and sufficient. From the position of the motorist’s vehicle, the warnings signs were clear and visible.

The requirements for a Notice to Keeper are set out in section 9(2), Schedule 4 of the Protection of Freedoms Act 2012. They include that it must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”, “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full”, “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable”, “specify the total amount of those parking charges that are unpaid”, and “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available”.

Further, our company registration number and a statement confirming that we received the keeper’s details from the DVLA are also present in the PCN. There is no requirement in the statute for the warden’s number to be identified and thus, the PCN is compliant with the POFA 2012.

We contend that the PCN amount of £100 is not punitive, unreasonable, and in response to the motorist’s claim that it does not represent a genuine pre estimation of loss, we would like to refer you to the recent court case: Parking Eye VS Barry Beavis 2015] EWCA Civ 402. The judge held that the conditions on which a motorist can use the car park were prominently displayed and contained no concealed pitfalls or traps. The judge summarised that he was satisfied in the case that the amount payable by the appellant is not extravagant or unconscionable and that the court should therefore not decline to enforce the contract. The judge held that a motorist who parks his car in the car park does so on the terms displayed in the notice. As a result, he enters into a contract with ParkingEye to abide by the rules of the car park, which include an obligation to leave within two hours. He also agrees that if he overstays he will pay the parking charge (£85, reduced to £50 for payment within 14 days).

The judge accepted that ParkingEye did not suffer any specific financial loss if a motorist overstayed, because, if the space in question had been vacated, it would have either have remained unoccupied or would have been occupied by another car free of charge. He therefore held that the parking charge had the characteristics of a penalty, one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. In reaching that conclusion he was influenced by the terms of section 56 and schedule 4 of the Protection of Freedoms Act 2012, which confer on operators of private car parks the right to recover parking charges from the registered keepers of vehicles.

The location in which the motorist parked in is a commercial property, which is leased to the leaseholder and included in their lease is the right to park/use the parking bays for their customers. If the leaseholder was unable to provide parking, they would lose customers and cancel their lease thus, making this charge commercially justified.

In accordance with the BPA Code of Practice, our parking attendants used manual number plate recognition. The Code states that automatic number plate recognition (ANPR) “may” be used, showing that it is not mandatory. The following is an excerpt from the code at paragraph 21.1: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner”. The motorist has claimed that the photographs taken by our parking attendant were not close up, but this does not make them invalid. Please see attached the photographic evidence, which clearly show the license plate number of the vehicle, and the warning signs in clear view from the position of the vehicle. We would also like to inform you that all of our photographic devices are calibrated to ensure they are precisely and accurately GMT time stamped so they are in accordance with the BPA's Code of Practice.

The photographic evidence clearly shows the motorist stopping and waiting at the site, in breach of the displayed terms of parking. We hold that this proves the compliance of our photographic evidence with the BPA Code of Practice. We would also like to inform you that all of our photographic devices are calibrated to ensure they are precisely and accurately GMT time stamped so they are in accordance with the BPA's Code of Practice. The photographic evidence attached clearly shows the vehicle parked at the site in question, in breach of the displayed terms of parking.

All actions undertaken by Park Direct UK Ltd have met the strict criteria of the Protection of Freedoms Act 2012. The motorist has not stated as to why they believe us to have not done so.

Please find attached all supporting evidence to this appeal, which clearly indicate that the motorist was in breach of our parking restrictions.''

elponce28

I have broken up this wall of text because no-one would read it the way you've shown it! NOW we can look at their words:

Apologies, I was in the library doing some coursework and copied it the way it was on POPLA's website. Thank you for separating the paragraphs so nicely, that's very kind.

I have not seen it yet as POPLA's website does not show attachments, apparently the PPC should have sent it to me as well but nothing yet. Which brings me to a question; I only have seven days (five now) but have not heard from the PPC yet, should I ask POPLA to extent the deadline? The advice on POPLA is that I have to contact the PPC...

By the way, I am already working on a draft but still waiting to see what they have got as evidence, specially the "contract".

elponce28

Just an update, I called parkdirectuk this morning twice and asked for the evidence they should have provided alredy. All they say is that they will send it...

Redx

elponce28 wrote: »

Just an update, I called parkdirectuk this morning twice and asked for the evidence they should have provided alredy. All they say is that they will send it...

in that case email popla and ask them to stay the case due to the parking company not having sent the evidence pack yet and you have not been told when it will arrive, if at all

ie:- you cannot rebut a non-existent evidence pack, so the PPC may have been trying it on by delaying sending it for 7 days hoping popla would rule on the assumption you had received it

elponce28

Just got it! I am going through the images provided.

It may sound silly but can I post here pictures of the "contract" between PPC and the landowner?

elponce28

WOW!! They have not supplied ANY copy of a supposedly contract!! The only evidence provided by the PPC was:
-The PCN
-A copy of the (misspelled) sigh, not the original one. The one provided by them is a digital image but includes the word parking. The sign on site does not have the word parking, only "no stopping or waiting". The PCN does not have the word "parking" either.
-The POPLA appeal response
-My appeal to the PPC
-Images of the vehicle on site with the only sign at the BACK of the car park, impossible to see as the car reversed in. Bare in mind that THERE IS ONLY ONE SIGN, opposes to numerous signs stated by the PPC on POPLA appeal.

One more question, period of parking (POFA) is not the time the photographic evidence was taken, is it? They are not the same thing I guess, therefore, not compliant with POFA

Thank you!!!!!