NTK from Parking CSL - POPLA Appeal won

Coupon-mad

An email will be fine but NOT saying they gave YOU permission to park, of course. They gave VRN xxxxxxxx permission to park...

Important typo to put right:

6: No contract formed to pay £120 due to unclear sporadic signage where the parking charge is not prominent.

tellytart

Thanks coupon-mad - I'd already spotted that one and corrected it.

I'll get an e-mail statement from the resident.

tellytart

OK, another question, I've got an image of the parking sign now. The "penalty" I think is in print that is far too small. Also, it's interesting that the "penalty" is only £100, and not the £120 that they're chasing me as the RK for! Is this another point to argue in the POPLA appeal?

Is this another argument that the NTK is not valid as they're not presenting the correct figures that the driver was required to pay and therefore no keeper liability?

Image here: [IMG]hxxps://www.dropbox.com/s/lrtqsc17gwtsk1s/Signs.JPG?dl=0[/IMG]

Coupon-mad

https://www.dropbox.com/s/lrtqsc17gwtsk1s/Signs.JPG?dl=0

Yes I would agree and use that as evidence that the signs are very high and the "penalty" is in print that is far too small to be legible from a car before parking - or even when standing under the sign and squinting at it - as it's several feet above a driver's head, on a pole in half-light.

Also, it's interesting that the "penalty" is only £100, and not the £120 that they're chasing me as the RK for! Is this another point to argue in the POPLA appeal?

Is this another argument that the NTK is not valid as they're not presenting the correct figures that the driver was required to pay and therefore no keeper liability?

Yes, any discrepancy is worth pointing out to POPLA. £120 is above the BPA CoP ceiling as well as not being supported by the signage - so POPLA can't 'allow' them to pursue £120 anyway.

tellytart

OK, I think I'm about there with the appeal letter to POPLA. Pasted below.

Any thoughts?

Thanks.

Re: Parking Ticketing Ltd PCN, {PCN 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 £120 ‘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 with the permission of the resident who owns the space. The space in which it was parked is for sole use of that resident or their visitors.

How a £120 ‘fine’ can arise from a vehicle legitimately parked with the residents permission is mind boggling.

I submit the points below to show that I am not liable for the parking charge:

1: The notice to keeper is not compliant with the POFA 2012 – no keeper liability
2: The vehicle was parked with permission of the owner of the parking space and no method of identifying legitimately parked visitor vehicles has been provided to the resident.
3: The charge of £120 is in excess of the maximum charge outlines in the BPA CoP
4: No genuine pre-estimate of loss
5: No standing or authority to pursue charges nor form contracts with drivers
6: No contract formed to pay £120 due to unclear sporadic signage where the parking charge is now prominent.

1: The notice to keeper is not compliant with the POFA 2012 – No Keeper Liability (Notice to keeper is shown in Appendix A)
There are several inconsistencies in the notice to keeper which are not compliant with POFA2012, and therefore the NTK is not valid and there is no keeper liability. These are listed below:
(i) With reference to the photograph of the signage (see Appendix the notice to keeper is demanding £120, while the signage refers to a “penalty” of £100. The NTK is in contradiction of the signage, misleading and therefore invalid. There is therefore no keeper liability.
(ii) Section 8(2)(c) of the POFA 2012 states that
The notice must state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b),(c), and (f).
As the information in the notice to keeper does not comply with this (there is no mention of the £100 the driver was required to pay, nor the £60 discounted amount which was required to be displayed on the notice to driver) the notice to keeper is invalid. There is therefore no keeper liability.
2: Vehicle parked with permission of the owner of the space (Copy of statement from resident is shown in Appendix C)
The vehicle was parked in a residents bay with the full permission of the resident authorised to use that bay. The resident has received no permits or other means from the parking company with which to identify legitimately parked visitors vehicles using the space. This is therefore preventing the resident from quiet enjoyment of his property when the residents legitimate visitors are being targeted in this fashion. See attached email from said resident stating permission was given.
3: The charge of £120 is in excess of the maximum charge outlines in the BPA CoP
The parking charge being demanded is £120. This BPA code of practice reads:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance
This is therefore a punitive and unfair charge on a legitimately parked vehicle and I put Parking Ticketing Ltd to strict proof that (a) they have justified this level of charge to the BPA in advance and received their approval and (b) justify to POPLA why this excessive charge should be permitted.
4: No Genuine pre-estimate of loss
The charge of £120 is punitive and unreasonable, contravening the BPA code of Practice section 19. Parking Ticketing Ltd must therefore be required to explain the 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 of damage caused, to Parking Ticketing Ltd have no cause of action to pursue this charge. Parking Ticketing Ltd must base their figures on a genuine pre-estimate of loss and comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”
Parking Ticketing Ltd cannot include their operation tax-deductible business running costs – for example, costs of signage, staffing and appeals or write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Parking Ticketing Ltd are likely to be paid by their client, so any such payment income must be balanced within the breakdown Parking Ticketing Ltd supply and must be shown in the contract which leads to point 5 below.
In addition, there can be no loss as this is a car park for the use of residents and their visitors. The resident who owns the space the vehicle was parked in does not own a vehicle, therefore whether the residents space was in use or not, no resident was deprived of their ability to park.
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, 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.
6. No contract formed to pay £120 due to unclear sporadic signage where the parking charge is not prominent.
No contract can have been formed between the driver and Parking Ticketing Ltd because the signage is inadequate, unlit and the “charge” is not clearly displayed in large lettering. In fact, the “charges” are in such small text it is difficult to read even on a photograph of just the sign, let alone being able to read it from a car, or standing under the sign as it is also positioned very high up.
The ruling of Parking Eye v Beavis is irrelevant in this case as the parking spaces are for the enjoyment of the residents, and are not offered as spaces for public parking. A vehicle parking in a space reserved for the resident that the driver is visiting with the permission of the resident is not depriving any other resident of their allotted parking space. Parking Eye v Beavis is only relevant to a public car park with a high turnover of public vehicles.

Appendix A
Image of unredacted copy of the NTK

Appendix B
Photograph of inadequate signage.

Appendix C
Copy of email from resident giving permission for vehicle to be parked.
To whom it may Concern

On the evening of 27 December 3015 I gave permission for vehicle reg number <redacted> to be parked in my allocated parking space as the driver was visiting me and staying over night. The housing company failed to send myself or the other tenant any permits and I was unaware that the new requirement for needing permits was in effect.

Yours Sincerely
<name and address redacted>

tellytart

Minor bump. I've posted above what I think is the final draft of the POPLA appeal, if someone can give it a quick once-over?

Also, should I file it ASAP, or should I wait a little while before filing the appeal - is there any merit at this point in slowing things down?

Many thanks.

Coupon-mad

Yes that's good to go (submit it as a PDF, attached under 'other' on the POPLA website) except in this version above you still have that typo:

now prominent

should be 'not prominent'

You may as well file the POPLA appeal within a day or so if no other comments are added here. Come back if they produce an evidence pack as you'll need to pull that apart, limb from limb, to rebut it all and get the final word.

tellytart

Thanks all. Have submitted the appeal to POPLA, so will update when I hear back.

tellytart

Hi Guys,

I've now had an e-mail from Parking Ticketing Ltd detailing their evidence (oddly dated 16 Feb - The Popla tracking page says that Popla are still waiting for the evidence from Parking Ticketing Ltd).

I'll post the full redacted evidence shortly - what do I need to leave visible? But one thing that stands out is they're saying the £120 is OK as their signs state that non-payment of the notice will result in it being passed to their debt recovery with additional charges. (Though even then the maths doesn't add up - their signs say £100 reduced to £60 if paid in 14 days, and if passed to debt collection they'll add £50 - so how then end up at £120 I've no idea!)

They've also shown signs photographed in daylight, whereas in one of their own evidence photos of the vehicle it can be seen the sign is exceedingly poorly lit.

They've also, as far as I can tell, completely failed to explain why they believe the NTK is valid!

I presume once the Popla portal updates to show the operator evidence has been received I'll then have a chance to offer my rebuttal?

Oh, and they're referring to Parking Eye v Beavis - so I assume this is going to be a slam-dunk as their signage doesn't stand up to the required standard as set in that case?

tellytart

Updated - Just had an e-mail from POPLA stating they've received the evidence pack - so I now have 7 days for my rebuttal.

The redacted evidence pack is here: https://www.dropbox.com/sh/u3hko4wgbkp058x/AAA1k55qtyyXG4Yiv8yP53uVa?dl=0

I think I've redacted everything I need to.