Two tickets in my own space

catfunt

Awooll wrote: »

So I now have my two POPLA codes but only one NTK.
I am working on my two POPLA appeals now but wondering how to approach the missing NTK?
The NTK I have says they don't know who the driver was so they are inviting the keeper to pay.

That's easy.
No NtK = no keeper liability, which should always be one of your appeal points anyway.
The NtK you did get is likely not to be POFA-compliant anyway.

You did appeal both tickets as keeper, didnt you?

Details in the NEWBIES thread.

When is the deadline for your POPLA appeal?

Marktheshark

I would demand the management agent that YOU EMPLOY produce the TRI PARTY contract they claim to hold which conveys the use of land you hold in leasehold to the parking company to operate a profit making business upon as you are unaware of subletting your leasehold to any company to roll up and start using the land you hold by lease to operate their business upon.
Ask do they have any other contract or think they do ? will you be coming home to a burger van parked in your space, or a double glazing trailer selling double glazing ?
Ask them how this differs with them inviting a parking company to operate on your leasehold and start demanding money from you as a customer.

I would say you require an answer within 7 days as to why they as your agent employed by you they believe they can use your leasehold to sublet to a business you have never heard of or dealt with and to make it known what financial arrangements they have and what payments they are receiving from this business for sub-letting your leasehold. payments and I would add you better damned well give your solicitor a call as well because if you can not dish up this contract you are going to be needing them.

Awooll

I did appeal both as keeper and as far as I can tell my deadline is 12/03/16.
If I have time I will send another letter to the management to that effect.
*reading newbie thread*:)

Half_way

pretty much as above, if you havent already you need to protect yourself by informing the management company that you dont approve of this and you may only display your permit at your own discretion..


Another way to look at this would be as follows:
even though it may seem daunting once youve got your head round the whole POPLA system/scheme and youve got a few wins under your belt you could just fire off multiple POPLA challenges - again tell the management company that you are opting out of any permit scheme as in the post above.
Next just collect the PCNs challenge each and every one you may be able to get at least 7 a week, with each one appealed to POLA, you can even let your neighbours in on it and have a competition to see how many POPLA appeals can be submitted out of your housing area/estate.
Doing this would keep whoever it is issuing tickets in the car park very busy, provide work for the PPC, and provide work and employment at POPLA, win win all round, and in a 12 month period i would expect you could get over 300PCNs issued challenged and won at POPLA

Coupon-mad

Awooll wrote: »

So I now have my two POPLA codes but only one NTK.
I am working on my two POPLA appeals now but wondering how to approach the missing NTK?
The NTK I have says they don't know who the driver was so they are inviting the keeper to pay.

The one with no NTK should be delayed if possible to get you to day 56 (if that doesn't take you past 28 days from the rejection letter date). Here's the wording for that point of appeal about no NTK:

https://forums.moneysavingexpert.com/discussion/comment/70164588#Comment_70164588

The one with a NTK needs to be compared to para 8 of Schedule 4. Someone here may have already done that so search the forum for 'Ethical POPLA' to read if someone has already set out a valid demolition of the same sort of Ethical NTK (and check the flaws are still true of course - I expect they are!).

The other points of appeal would need to be as shown in recent POPLA appeals here on pages 1 - 4 so read back, looking for ANY thread title asking for POPLA input and you will see recent advice about how to argue your case differs from the Beavis case and also the usual stuff about illegible signage, no landowner authority, etc. Do not use an old version.

Show us what you cobble together for each one.

Awooll

This is what I have from the newbie thread.
I'm not happy with the part about inadequate signage as I don't feel this apply's in my case.
I believe I can use this appeal for both tickets as the NTK I did receive is not POFA compliant.


Re: Ethical Parking Management CBC, {CBC Reference}
POPLA Code: {POPLA Reference}

Dear POPLA Adjudicator,

As a law abiding citizen who always pays his way, I was extremely upset to hear of a £100 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for. The vehicle in question was parked in a residential car park and does hold a valid permit. The space in which it was parked is for sole use of that vehicle and at the time in question, the permit had slipped out of view.

How a £100 ‘fine’ can arise from a residents vehicle being parked in that same residents’ allocated parking space, without being unlawful, is beyond me.

I submit the points below to show that I am not liable for the parking charge:
The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
Vehicle issued the PCN is considered to be a genuine resident
Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
No genuine pre-estimate of loss
No standing or authority to pursue charges nor form contracts with drivers
No contract between driver and Ethical Parking Management

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
To date I have not been issued a Notice to Keeper (NTK) by Ethical Parking Management. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 11/01/2016 and from my understanding the NTK was required to reach me by 07/03/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that Ethical Parking Management provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

2. Vehicle issued the PCN is considered to be a genuine resident
With regards to the PCN, the vehicle in question is in possession of a valid permit at the time of contravention. If for example all of the ‘resident only’ spaces were occupied by valid residents, regardless of whether permits were displayed, Ethical Parking Management would still have incurred zero loss. When empty, these resident spaces cannot be re-offered in exchange for fees to those who have no association with the buildings, making the charges punitive.

The reason land owners employ parking companies are to stop non-residents abusing the car park in question. Genuine residents should not be deterred from using the parking spaces provided to their properties.

3. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
The only notices are up on walls, away from the single light source in the car park area, which is not a 'sign' nor does it communicate full contractual terms & conditions. At the time of the contravention it was very dark and no signage was clearly visible by the vehicle. Any photos supplied by Ethical Paking Management to POPLA will no doubt show the signage in daylight or with the misleading aid of a close up camera with an extremely bright flash and the angle may well not show how high the sign is nor the fact the Premier Park Ltd signs are one of many pieces of information in the clutter of this residential car park. As such, I require Ethical Parking Management to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding a resident without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

4. No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Ethical Parking Management must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Ethical Parking Management have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Ethical Parking Management cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Ethical Parking Management are likely to be paid by their client - so any such payment income must be balanced within the breakdown Ethical Parking Management supply and must be shown in the contract, which leads me to appeal point 5 below.

5. No standing or authority to pursue charges nor form contracts with drivers
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, Ethical Parking Management 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 Ethical Parking Management to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Ethical Parking Management 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 Ethical Parking Management.

6. No contract between driver and Ethical Parking Management
As per the property lease, there is no mention of Ethical Parking Management, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property. As per appeal point 5 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and Ethical Parking Management.

Below you will find a picture of the permit the vehicle holds.
{Image of Permit}

Neither the permit itself nor the form the resident signed adequately (or at all) warned of the AMOUNT of any parking charge nor drew attention to any further terms which could apply to the contract at the time of the permit being handed over. It is too late to bring other terms into a contract (not even those on a sign) if these terms were not part of the agreement made at the time of the permit being provided. They were not. The residents had no idea that a 'fine' of £100 could possibly apply.

In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright.

This concludes my POPLA appeal.

Yours faithfully,

{Name of Keeper}

Coupon-mad

You do need an unclear signage paragraph because Ethical's signs are shocking and the sum of the parking charge is not in large lettering. Your paragraph about it needs amending though as it has the name of another operator, Premier Park!

You could add another point that in fact, where resident permits are concerned, the contract is formed NOT as a one-off per 'parking event' but in advance, at the point of supply of the permit.

That contract is a continuous one between resident and the agent supplying the permit and would rely upon whatever letter or email was supplied to the residents in advance (whether a signature was required or not, but ESPECIALLY if the resident did sign!). That contract MUST mention the parking 'charge' as a figure (not vaguely say 'you must display a permit' or even 'you will be fined/receive a PCN if you don't') because the POFA 2012 requires adequate notice of the actual sum itself. A consumer cannot agree to pay £100 if the communication about that contract has nothing about it.

Salmosalaris may be able to put together a suggested point for this as I think it was his idea to point out the above (maybe the Prankster's too?), that a resident does not form a new contract every day. Residents with permits cannot be held to other terms on signage; they cannot reasonably expected to check signs on a far fence/wall every single day before parking. In fact, their 'permit/display or else' contract was actually offered/agreed much earlier by paperwork (which also makes it a distance contract, some thing the Parking Prankster has mentioned which can lead to another appeal point).



I would remove this admission near the start, no need to say it was 'out of view' because that's for Ethical to prove, not for you to admit:

and at the time in question, the permit had slipped out of view.

For the one you did get a dodgy NTK for you'd need to tell POPLA why it is not compliant (in detail compared to para 8 of Schedule 4) and remove this:

This operator failed to serve any NTK at all.

And your point about GPEOL/loss will need scrapping in favour of a 'salmosalaris special' about there being no comparable legitimate interest like the Beavis case (nor a clear, prominent contract formed to pay £100), therefore the penalty rule remains engaged/it is an unexpected disproportionate 'fine' with no commercial justification and unlike in the Beavis case which cannot - without intellectual dishonesty - be twisted to suit, this one is unenforceable.

nigelbb

Coupon-mad wrote: »

You do need an unclear signage paragraph because Ethical's signs are shocking and the sum of the parking charge is not in large lettering. Your paragraph about it needs amending though as it has the name of another operator, Premier Park!

You could add another point that in fact, where resident permits are concerned, the contract is formed NOT as a one-off per 'parking event' but in advance, at the point of supply of the permit.

That contract is a continuous one between resident and the agent supplying the permit and would rely upon whatever letter or email was supplied to the residents in advance (whether a signature was required or not, but ESPECIALLY if the resident did sign!). That contract MUST mention the parking 'charge' as a figure (not vaguely say 'you must display a permit' or even 'you will be fined/receive a PCN if you don't') because the POFA 2012 requires adequate notice of the actual sum itself. A consumer cannot agree to pay £100 if the communication about that contract has nothing about it.

In this case therefore the signs do not form part of any contract & whatever rubbish is displayed on them has no bearing on the alleged contract breach except of course bringing the poor quality signage to POPLA's attention does help muddy the waters.

Coupon-mad

But the problem being, if POPLA do not agree that the contract is made at the time of a permit changing hands then the signs are goig to be what an appellant needs to fall back on to show that even if POPLA think the contract is formed anew, every day by the signs, then those signs are not compliant or legible and do not show the sum of the charge in large letters.

Maybe the appeal point should be combined & headed 'no contract agreed and no adequate notice of any parking charge'.

Then the OP could make the point about the permit changing hands (a) - ideally with evidence attached, like a copy of some old scrap of paper which accompanied the permit, which hopefully fails to mention £100 - then say something like: 'In the alternative, if POPLA is of the view that a new contract is formed every day by signage (which this appellant does not believe is the case) then I would draw your attention to the fact that the signs are in a dark corner/low down/unlit/illegible and the sum of £100 can't be read before parking because it is not a term in the 'large lettering' which the PE v Beavis case relied upon.

Then conclude that the elements of a contract are absent around the sum of £100, whether POPLA believes the contract is formed upon permit issuance or whether they believe a resident family forms a new contract every day afresh, every time they park.

nigelbb

Often a nominal charge is made for issuing a permit which consideration reinforces the point that any contract is made at the time of issue of the permit & that as was established in Thornton vs Shoe Lane Parking extra T&Cs cannot be added on to a contract by means of signs after the contract is finalised by payment & issuing of a ticket (or permit).