Parking Charge for Stopping/Waiting less than 20 seconds!

backtobasix

Hi - first time poster on this fabulous forum.

Hope someone can advise on my situation.

I couldn't pinpoint any example appeals that cover off the PCN my vehicle been issued.

Basically PCN received for stopping or waiting where waiting restrictions are in force.

It was on private land, and the driver didn't see the signs showing the restriction although they were clearly displayed when I went back and took a photo (shown below):

hxxps://drive.google.com/file/d/0B6LOmwcnONzDZjdlVUlLRUpjUTQ/view?usp=sharing

The vehicle had stopped in that location for less than 20 seconds!

I received the following PCN from Park Direct UK:

hxxps://drive.google.com/file/d/0B6LOmwcnONzDYnBLOU9Xeng2Qk0/view?usp=sharing

hxxps://drive.google.com/file/d/0B6LOmwcnONzDUnFhWnAxbm5xSW8/view?usp=sharing

I used the template on this forum to appeal and request a POPLA code.

I then received the following letter rejecting my appeal and giving me a new deadline to pay and a POPLA code:

hxxps://drive.google.com/file/d/0B6LOmwcnONzDRW9vRnZZc3RVVjQ/view?usp=sharing

hxxps://drive.google.com/file/d/0B6LOmwcnONzDanU5SmRMUTg3b28/view?usp=sharing

hxxps://drive.google.com/file/d/0B6LOmwcnONzDaVBoMHlDbW5IMFE/view?usp=sharing

I am starting to draft the POPLA Appeal -

Can someone please advise what should be the main points my POPLA appeal should cover.

Many thanks in advance

B2B

Guys_Dad

Don't know what you wrote in your appeal but it seems to me that you have stopped to read the notice in front of your car. Shouldn't have taken more than a minute.

PPCs have to allow drivers to read signs before deciding whether or not to park.

Coupon-mad

Bunch of scammers, 20 seconds...this is almost as bad as when they were clampers. Only now, due to the Beavis case, the Supreme Court has pretty much (inadvertently perhaps) given the green light to such cowboys to issue fake PCNs on any old excuse:

http://www.dailymail.co.uk/news/article-1213482/Gone-30-seconds-How-cowboy-clampers-pounced-half-minute-claim-150-fine.html

Definitely include the BPA Code of Practice about grace periods. You are allowed the time to read a sign and then decide to leave.

And if you appealed as keeper then of course, the whole point of that is to use the POFA flaws about Park Direct NTKs; they don't get them spot-on.

Look in post #3 of the NEWBIES thread for examples of POPLA appeals. They are all recent ones but won't be for Park Direct. Doesn't matter, find one and edit & adapt it once you've read a few, because you will see the formula.

Show us what you cobble together and we'll assist.

backtobasix

Here is my first stab at this:


Dear POPLA Assessor,

I am the registered keeper of vehicle registration XXXX XXX and I wish to appeal a recent parking charge number XXXXXXX using POPLA appeal code XXXXXX. My appeal was refused by ParkDirectUK because they believe the signage adequately stated the restrictions on site.[FONT=&quot]

[/FONT]BACKGROUND
The driver unknowingly entered private land where parking is controlled by Park Direct UK. As the driver stopped to drop off some passengers from the vehicle they noted the signs indicating no stopping or waiting on the land. The driver then immediately performed a 3 point turn and exited the private land. In total the vehicle was in and out of the land within 1 minute. Also note; the timestamps on images sent to the owner of the vehicle span no more than 25 seconds.

There are a number of points I would like to contest this unlawful charge:

1. British Parking Association Code of Practice: Grace Period
2. No contract with the Landowner
3. The Charge is not a genuine pre-estimate of loss.

1. British Parking Association Code of Practice: Grace Period.
As a member of the BPA, ParkDirectUK would be subject to their Code of Practice which states in Section 13: Grace Period: 13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

[FONT=&quot]The time in car park is noted to less than 1 minute and I feel that this constitutes a reasonable grace period to allow an informed decision and, following the decision to leave the car park, to leave without charge.
[/FONT]
[FONT=&quot]As a result, the 3 above conditions have not been met by ParkDirectUK. Based on this this appeal should be upheld. If this is felt not to be the case, I put it to ParkDirectUK to provide strict proof to the contrary and their reasons for going against their industry regulator’s best practice.

2. No contract with the Landowner
ParkDirectUK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
ParkDirectUK has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
Parking Eye must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant ParkDirectUK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between ParkDirectUK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

3. The charge is a penalty and not a genuine pre-estimate of loss.
In its parking charge notice, ParkDirectUK has failed to produce sufficient evidence to justify the £100 loss the landowner might have incurred for the period of less than 1 minute on its property. For this charge to be justified, a full breakdown of the costs ParkDirectUK has suffered as a result of the vehicle being on that land, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any vehicle being on that land.[/FONT]

POPLA and ParkDirectUK will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkDirectUK might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant


With all this in mind, I request that my appeal is upheld and for POPLA to inform British Parking Association Code of Practice to cancel the PCN.

Yours faithfully,

Coupon-mad

Isn't that based on an old example? There's nothing about the Beavis case in that one and Dunlop isn't often mentioned now. That doesn't look like a recent one from the NEWBIES thread.

Also you have missed out the appeal point I mentioned above about the NTK and keeper liability. Why appeal as keeper if not saying there is no keeper liability?

And you obviously need a point about signage being unreadable. If it was dark say it was unlit, if it was light say the wording was too small and the charge not legible and in any case the driver left.

Remove the admission about dropping off passengers, it's irrelevant and suggests the driver 'stopped/parked' which you have no need to mention.

backtobasix

Thanks for the feedback Coupon Mad. It was based on one of the links in the Newbies thread; an appeal from Nov 2015.

hxxp://forums.moneysavingexpert.com/showthread.php?t=5361671

I will rework based on your suggestions....

Coupon-mad

I will have to remove that one then because it missed too much out.

backtobasix

OK a quick question on the Keeper Liability -

The threads on the forum that refer to keeper liability all seem to state that it was a Pay and Display car park where parking charges apply.
.
In my case, as this was private land where no parking charges apply (permit holders only) and NOT a pay and display car park, will the POFA 2012 Schedule 4 still apply. It states:

1 (1) This Schedule applies where—
(a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on
relevant land; and
(b) those charges have not been paid in full

Coupon-mad

Yes it applies to all private parking charges except where byelaws apply (such as Airports). But that's a very good question because when the POFA Bill was being heard in the House of Commons in 2012 we also pored over it like you are now and we asked that same question...

...but yes, we know that the POFA applies. It is just badly drafted and conflates 'parking charges' in a really muddy way so fees and tariffs and 'fines' all get clouded into one meaning.

backtobasix

OK Park Directs NTK seems pretty solid, links below for reference:


original NTK:
hxxps://drive.google.com/file/d/0B6LOmwcnONzDYnBLOU9Xeng2Qk0/view?usp=sharing

hxxps://drive.google.com/file/d/0B6LOmwcnONzDUnFhWnAxbm5xSW8/view?usp=sharing

Follow up NTK:

hxxps://drive.google.com/file/d/0B6LOmwcnONzDRW9vRnZZc3RVVjQ/view?usp=sharing

hxxps://drive.google.com/file/d/0B6LOmwcnONzDanU5SmRMUTg3b28/view?usp=sharing

hxxps://drive.google.com/file/d/0B6LOmwcnONzDaVBoMHlDbW5IMFE/view?usp=sharing




i've gone through each condition in POFA 2012 and struggling to find any errors on their part. see notes below. Am i missing anything:

9 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.


(2) The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
NTK specifies vehicle, land, date and time. The period can be implied from the timestamp of the 2 images on NTK


(b) 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;
NTK specifies that I must pay a charge of £100 (reduced to £60) in full for stopping or waiting at the specified location at a specified time.


(c) 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;
Dont fully understand this one


(d) specify the total amount of those parking charges that are unpaid, as at a time which is—
(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-
paragraph (4));
NTK specifies this

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
NTK specifies this


(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
NTK specifies this



(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
NTK specifies this

(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
NTK specifies this

(i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
NTK specifies this
(3) The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
NTK specifies only a single period of stopping

(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.
NTK received by post within a few days

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
Contravention occurred on 13th Dec, Notice served on 16th Dec. Requested to pay 14 days from the notice served date

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
NTK was delivered

(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
Photographic evidence on NTK. Paragraph 10 does not make much sense to me!

(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and (b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.
NTK describes how to make an appeals process to them and also mentions POPLA

Marktheshark

I would make make point 1 : The driver was present in the car park for less than 30 seconds, stopping in those brief seconds to read a sign that appeared to be making a contractual offer, having become aware that this was a binding offer the driver made the decision to reject the offer and left the car park, thus no performance of the contract was carried out, the sign can only be read from the first place the driver can stop, the supreme court l Beavis Vs parking eye states very clearly in its judgement that the contract is performed by performance in parking and leaving the vehicle parked .
The vehicle was never parked, the offer was read and rejected and the driver left the car park within 30 seconds of entering deciding to reject the offer.
The contract is not an adhesion contract, it is one served by performance and thus rejection is always an option, the offer was rejected and declined, no parking took place and therefore no contract exists.