Elite Management (Midlands) Ltd.

catfunt

Doesn't she need to get it in tomorrow (11th) as per the info from Parking Cowboys checker??

paige94_2

Coupon mad, thank you so so much for your fantastic help! I really feel like I've got to grips with it now, and I'm overwhelmed that despite your own busy lives you have taken your time to help me; in extreme detail!!
I shall continue to draft my appeal, using your post as guidance and will post a, hopefully final, draft in the morning.
Thank you again!!

Coupon-mad

catfunt wrote: »

Doesn't she need to get it in tomorrow (11th) as per the info from Parking Cowboys checker??

I never look at that. And POPLA codes work for up to a week after.

paige94_2

Ok my appeal is really coming together. Will get it posted this morning for you all to have a skim through. Just wanted to clarify some things, should I give background info like I have seen on some popla appeals; or go straight in with "I am appealing this PCN as keeper of the vehicle based on these appeal points"?
Also, on the popla website where I have to choose the category my appeal falls under, would I go with other as no NTK is my main point or should I go for the unclear signage?
Finally, coupon mad would you recommend I send it today (after opening hours as you suggested) or tomorrow, with my evidence being the email which wasn't received but apparently sent on 15th January - meaning without the code checker I would have assumed that to be the last appeal day?

Thanks again everyone!

paige94_2

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

The Protection of Freedom Act, 2012 states that in order for the creditor to recover any unpaid parking charges from the keeper of the vehicle, they must have “given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8” (POFA, 2012).
The Notice to driver, as set out in paragraph of the POFA 2012, must include both the “specified period of parking” as well as “specify the time the Notice is given”. As you can see in attachment 1, the Notice to driver only states the time the Notice was issued, rather than specify the period of parking which the penalty relates to.
As stated previously, a notice to keeper must follow a notice to driver. POFA 2012 states that;
“(4)The 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.
(5)The relevant period for the purposes of sub-paragraph (4) 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.”
As of today, Thursday 11th February 2016, I have not received any notice to keeper, meaning that Elite Management LTD are not complying with POFA 2012. The receipt and validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA representative, Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' No NTK was ever issued by Elite Midlands Management LTD, therefore it was improperly given and there is no grounds for keeper liability.

2) Unclear signage and ambiguous information at the entrance.
In the BPA code of practice, appendix B paragraph 18.1, it is said that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”. The BPA go on to say in paragraph 18.2 that; “Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance.”
With regards to this ‘PCN’ the driver entered the car park with the intention of parking on the bottom floor as the driver was a customer of the onsite business; ASDA. As a regular customer, the driver already knew that ASDA offered free parking for its’ customers, as per the entrance signage in attachment 2, after scrapping their pay and display scheme. There were no spaces available on the first floor, so the driver of the vehicle proceeded up the ramp and parked in the first space in the first bay on floor 3. As you can see by attachment 3, there were no signs on entrance to floor 3 to warn that it was under different restrictions nor were any terms to pay £100 clearly communicated.
The BPA state that “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”. As proven by attachment 4, there was no obvious signage in the area the vehicle was parked therefore no contract was ever accepted to pay this sum.

3) No landowner authority (usual wording).
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Ticketing Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Ticketing Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Parking Ticketing Ltd and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Ticketing Ltd.

4) Breach of the BPA Code of Practice.
Paragraph 4.1 of the BPA Code of Practice states that; “any organisation or person applying for BPA or AOS membership must sign a declaration agreeing to keep to the Code and its principles”, with paragraph 4.2 going on to say that “to stay a member of the BPA you must keep to the conditions of the Code. If you do not keep to the conditions of the Code we may take disciplinary action against you”. As discussed in the 2nd point of this appeal, Elite Management (Midlands) Ltd have not complied with the BPA’s rules on signage.
Furthermore, in section 1 of the BPA Code of Conduct it explains that; “keeper liability for payment of parking charges (under Schedule 4 of the Protection of Freedoms Act 2012) means that if the driver of the vehicle is not known then the registered keeper may be liable to pay any valid parking charges. Notice to Driver means a type of parking charge notice which meets the conditions in the Protection of Freedoms Act 2012, Schedule 4 in terms of contents and how it is delivered. Notice to Keeper means a notice, addressed to the registered keeper of a vehicle, which meets the conditions in the Protection of Freedoms Act 2012, Schedule 4, paragraphs 8 or 9. A Notice to Keeper can be given either as the first step in recovering a parking charge, or as the second step after giving a Notice to Driver. A Notice to Keeper must be given if an operator wants to recover parking charges from the keeper”. As discussed in the 1st point of this appeal, Elite Management (Midlands) Ltd have not complied with POFA 2012; including lack of information in the Notice to driver (attachment 1) and the absence of a NTK. As Elite Management (Midlands) Ltd have not complied with POFA 2012, this also means they are in breach of their contract with the BPA.
Finally, the ‘PCN’ was appealed by the keeper of the vehicle on 12/01/2016, following the appeals procedure provided by Elite Management (Midlands) Ltd; see attachment 5 which is the series of emails between myself, the keeper of the vehicle and Elite. On 27/01/2016, after not receiving an acknowledgement of my original appeal – which is also a breach of the BPA Code of Conduct as paragraph 22.8 explains that they “must acknowledge or reply to the challenge within 14 days of receiving it” – further evidence of expenditure by the driver was sent to the appeals email address. It was then on the 27/01/2016 that a reply was received from an employee of Elite Management (Midlands) Ltd, called Zoe, who claimed that a denial response had been sent on 15/01/2016. I replied to the email to inform Zoe that no email had been received regarding my appeal and request that I was sent the denial response. I also, as you can see from attachment 5, requested that I was provided with proof that the original denial response was sent on 15/01/2016 as claimed. Following this, I received the denial response which was supposedly sent on 15/01/2016 on 28/01/2016, which stated that “photographic evidence will follow in a separate email” – which I never received on the first occasion (meaning two separate emails on 15/01/2016 miraculously did not reach my inbox) nor did it follow the denial response I received on 28/01/2016. As ypu can see in attachment 5, I have since sent two emails to the appeals department for Elite Management (Midlands) Ltd requesting the “photographic evidence” they claim to have sent twice but have never been received, as well as proof that these ‘ghost’ emails were actually sent in the first place. This is also a breach of the BPA Code of Conduct, as in appendix B paragraph 22.3, it states that “if the driver asks for them, you should give them copies of any photographic evidence you have. Ordinarily you should not charge for this unless Data Protection legislation specifically allows you to”.

How's this looking?

paige94_2

Just got one more point to add regarding the £100 being a penalty and maybe no genuine pre-estimate of loss.
I do need to do a good proof read on it so please excuse my grammar and spelling, I will upload my final piece when I've finished it

Coupon-mad

Just wanted to clarify some things, should I give background info like I have seen on some popla appeals

I recommend a short couple of lines giving background information which doesn't imply who was driving but tells POPLA Assessors what it's about such as:


Background for POPLA:
This is a multi-storey car park conected to Asda, where the entrance signs offer free parking for customers. The driver has not been identified but was a genuine customer of Asda and I will show that no contract was established with this operator and I am not liable for this charge as keeper.

When you submit it, save it as a PDF and ALWAYS just choose 'OTHER' on the POPLA page. Tomorrow evening will be fine, honestly.

Get rid of 'usual wording' here, which was just my instruction to you!

3) No landowner authority (usual wording).

Point#4 looks fine but needs breaking up into 3 or 4 paragraphs as it is currently a wall of text that is hard to read. Make it easy for POPLA.

Just got one more point to add regarding the £100 being a penalty and maybe no genuine pre-estimate of loss.

Yes, you can create a suitable appeal point like this one if you like:

https://forums.moneysavingexpert.com/discussion/comment/70106145#Comment_70106145

...by all means just adapt the wording I used there under 'Not a genuine pre-estimate of loss. The charge is a penalty which can be distinguished from ParkingEye v Beavis'. But don't copy every word because that one is specific to that case and might not all fit your circumstances. As long as it makes the point that the charge is not a GPEOL, it is an unconscionable penalty out of all proportion to any alleged unpaid tariff and that the facts differ from the Beavis case and it states why (like there), your job will be done.

Except to add that you, your extended family and your friends etc should all be signing this petition

https://petition.parliament.uk/petitions/111925

...if you haven't all done so already!

paige94_2

Here is my final appeal, sending to popla now.

is is a multi-storey car park connected to Asda, where the entrance signs offer free parking for customers. The driver has not been identified but was a genuine customer of Asda and I will show that no contract was established with Elite Management (Midlands) Ltd and I am not liable for this charge as keeper.
This appeal is based on the following 5 points:
1) Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) Unclear signage and ambiguous information at the entrance.
3) No landowner authority.
4) Breach of the BPA Code of Conduct .
5) The charge is not based upon GPEOL.

1) Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
The Protection of Freedom Act, 2012 states that in order for the creditor to recover any unpaid parking charges from the keeper of the vehicle, they must have “given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8” (POFA, 2012).
The Notice to driver, as set out in paragraph of the POFA 2012, must include both the “specified period of parking” as well as “specify the time the Notice is given”. As you can see in attachment 1, the Notice to driver only states the time the Notice was issued, rather than specify the period of parking which the penalty relates to.
As stated previously, a notice to keeper must follow a notice to driver. POFA 2012 states that;
“(4)The 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.
(5)The relevant period for the purposes of sub-paragraph (4) 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.”
As of today, Friday 12th February 2016, I have not received any notice to keeper, meaning that Elite Management LTD are not complying with POFA 2012. The receipt and validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA representative, Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' No NTK was ever issued by Elite Midlands Management LTD, therefore it was improperly given and there is no grounds for keeper liability.



2) Unclear signage and ambiguous information at the entrance.
In the BPA code of practice, appendix B paragraph 18.1, it is said that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”. The BPA go on to say in paragraph 18.2 that; “Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance.”
With regards to this ‘PCN’ the driver entered the car park with the intention of parking on the bottom floor as the driver was a customer of the onsite business; ASDA. As a regular customer, the driver already knew that ASDA offered free parking for its’ customers, as per the entrance signage in attachment 2, after scrapping their pay and display scheme. There were no spaces available on the first floor, so the driver of the vehicle proceeded up the ramp and parked in the first space in the first bay on floor 3. As you can see by attachment 3, there were no signs on entrance to floor 3 to warn that it was under different restrictions nor were any terms to pay £100 clearly communicated.
The BPA state that “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”. As proven by attachment 4, there was no obvious signage in the area the vehicle was parked therefore no contract was ever accepted to pay this sum.

3) No landowner authority.
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Elite Management (Midlands) Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Elite Management (Midlands) Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Elite Management (Midlands) Ltd and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Elite Management (Midlands) Ltd.

4) Breach of the BPA Code of Practice.
Paragraph 4.1 of the BPA Code of Practice states that; “any organisation or person applying for BPA or AOS membership must sign a declaration agreeing to keep to the Code and its principles”, with paragraph 4.2 going on to say that “to stay a member of the BPA you must keep to the conditions of the Code. If you do not keep to the conditions of the Code we may take disciplinary action against you”. As discussed in the 2nd point of this appeal, Elite Management (Midlands) Ltd have not complied with the BPA’s rules on signage.
Furthermore, in section 1 of the BPA Code of Conduct it explains that; “keeper liability for payment of parking charges (under Schedule 4 of the Protection of Freedoms Act 2012) means that if the driver of the vehicle is not known then the registered keeper may be liable to pay any valid parking charges. Notice to Driver means a type of parking charge notice which meets the conditions in the Protection of Freedoms Act 2012, Schedule 4 in terms of contents and how it is delivered. Notice to Keeper means a notice, addressed to the registered keeper of a vehicle, which meets the conditions in the Protection of Freedoms Act 2012, Schedule 4, paragraphs 8 or 9. A Notice to Keeper can be given either as the first step in recovering a parking charge, or as the second step after giving a Notice to Driver. A Notice to Keeper must be given if an operator wants to recover parking charges from the keeper”. As discussed in the 1st point of this appeal, Elite Management (Midlands) Ltd have not complied with POFA 2012; including lack of information in the Notice to driver (attachment 1) and the absence of a NTK. As Elite Management (Midlands) Ltd have not complied with POFA 2012, this also means they are in breach of their contract with the BPA.
Finally, the ‘PCN’ was appealed by the keeper of the vehicle on 12/01/2016, following the appeals procedure provided by Elite Management (Midlands) Ltd; see attachment 5 which is the series of emails between myself, the keeper of the vehicle and Elite.
On 27/01/2016, after not receiving an acknowledgement of my original appeal – which is also a breach of the BPA Code of Conduct as paragraph 22.8 explains that they “must acknowledge or reply to the challenge within 14 days of receiving it” – further evidence of expenditure by the driver was sent to the appeals email address. It was then on the 27/01/2016 that a reply was received from an employee of Elite Management (Midlands) Ltd, called Zoe, who claimed that a denial response had been sent on 15/01/2016. I replied to the email to inform Zoe that no email had been received regarding my appeal and request that I was sent the denial response. I also, as you can see from attachment 5, requested that I was provided with proof that the original denial response was sent on 15/01/2016 as claimed.
Following this exchange of emails, I received the denial response (on 28/01/2016) which was supposedly sent on 15/01/2016, which stated that “photographic evidence will follow in a separate email” – which I never received on the first occasion (meaning two separate emails on 15/01/2016 miraculously did not reach my inbox) nor did it follow the denial response I received on 28/01/2016.
As you can see in attachment 5, I have since sent two emails to the appeals department for Elite Management (Midlands) Ltd requesting the “photographic evidence” they claim to have sent twice but have never been received, as well as proof that these ‘ghost’ emails were actually sent in the first place. This is also a breach of the BPA Code of Conduct, as in appendix B paragraph 22.3, it states that “if the driver asks for them, you should give them copies of any photographic evidence you have. Ordinarily you should not charge for this unless Data Protection legislation specifically allows you to”.
6) The charge is not based upon a GPEOL.
This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment as this was a pay and display carpark. The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here. Unlike in Beavis, it is confidently argued that this charge (£100) is hugely disproportionate to any alleged unpaid tariff. The charge is not a genuine pre estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis.
If Elite Management (Midlands) Ltd believes that inadequate payment was made (despite the driver not entering any contract with them , as per the evidence and points in this appeal) their demand should be for any unpaid tariff as that would be their only loss. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Elite Management (Midlands) Ltd believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated. In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

This concludes my appeal.
I look forward to hearing your response.
Yours faithfully,
Paige Hathaway

paige94_2

Missed the first 'Th' as I copy and pasted! Not a typo

paige94_2

Also coupon mad, I did take up your advice and break it up but my paragraphs don't seem to be showing on here.
I have signed the appeal and will instruct others to do so.
Thank you for all of your help, I will keep you updated!