to pay or not to pay

The_Deep

Well, that does not name the driver, you could have been the passenger.

Coupon-mad

The_Deep wrote: »

Well, that does not name the driver, you could have been the passenger.

That's true.

He could still say at POPLA, very truthfully as an introduction setting the scene:

' I was an occupant of the car and I was the person who was fetching the permit from my adjacent residence (which involved a flight of stairs and a matter of minutes - if it did...) but the driver's name has never been established and will not be provided. It is up to the operator to establish who they believe they have contracted with or they must rely upon compliance with the POFA 2012 which they will be unable to prove.

I continue to appeal as the registered keeper...blah blah...{usual mutli-point POPLA appeal, see link below for recent similar one}...'



@sach1636, you already have a decent GPEOL v Beavis argument above from salmosalaris specially for your case - so please show us how your POPLA draft is looking now and include that.

Now you know it's PTL you can adapt an example and re-word whatever needs tweaking to suit your dates/details/PPC's name.

We think you can and should use 'no keeper liability under the POFA' and we assume they have never sent you a Notice to Keeper in the post yet, only a rejection letter after a windscreen PCN? So you need the sort of wording on this POPLA appeal:

https://forums.moneysavingexpert.com/discussion/comment/70180619#Comment_70180619

Try adapting that, you have time to do this well and could even go past 23rd by a day or two and it would still be OK (although not recommended).

dazster

sach1636 wrote: »

About my lease, the car parking is allocated to my apartment so I did not go in to details of leasehold.

This is like pulling teeth. Please look at your leasehold to see what it says about your allocated space and parking in general. Can't help you otherwise.

The_Deep

As Mr D says, the wording of the lease is what matters, nothing else.

sach1636

Coupon-mad wrote: »

That's true.

He could still say at POPLA, very truthfully as an introduction setting the scene:

' I was an occupant of the car and I was the person who was fetching the permit from my adjacent residence (which involved a flight of stairs and a matter of minutes - if it did...) but the driver's name has never been established and will not be provided. It is up to the operator to establish who they believe they have contracted with or they must rely upon compliance with the POFA 2012 which they will be unable to prove.

I continue to appeal as the registered keeper...blah blah...{usual mutli-point POPLA appeal, see link below for recent similar one}...'



@sach1636, you already have a decent GPEOL v Beavis argument above from salmosalaris specially for your case - so please show us how your POPLA draft is looking now and include that.

Now you know it's PTL you can adapt an example and re-word whatever needs tweaking to suit your dates/details/PPC's name.

We think you can and should use 'no keeper liability under the POFA' and we assume they have never sent you a Notice to Keeper in the post yet, only a rejection letter after a windscreen PCN? So you need the sort of wording on this POPLA appeal:

https://forums.moneysavingexpert.com/discussion/comment/70180619#Comment_70180619

Try adapting that, you have time to do this well and could even go past 23rd by a day or two and it would still be OK (although not recommended).

dazster wrote: »

This is like pulling teeth. Please look at your leasehold to see what it says about your allocated space and parking in general. Can't help you otherwise.

thanks both. I have updated appeal and shared here.
I went through lease which unfortunately contains wording that if permit is not displayed I will be fined. One lesson learnt is NOT TO KEEP permit at home even if one is not using immediately.

Fruitcake

sach1636 wrote: »

thanks both. I have updated appeal and shared here.
I went through lease which unfortunately contains wording that if permit is not displayed I will be fined. One lesson learnt is NOT TO KEEP permit at home even if one is not using immediately.

I think this bit needs a bit of work.

Situation:-


- XXX address is a quiet residential area, away from any traffic


- I am registered keeper of the said vehicle & was parked at the allocated parking bay. I was an occupant of the car and I was the person who was fetching the permit from my adjacent residence 　　


- I am registered carer and in this situation I was caring for someone which resulted in delay of few minutes reaching back to my own car parking space.　


That reads to me as if you were parked. To me you are saying "I am the keeper and I was parked," and, "I am a carer and was returning to my car."


It was the vehicle that was parked, so don't imply that you did the parking or were returning to it. Don't mention the last paragraph at all, or the bit about fetching the permit.


Your vehicle had a permit, that's all you need to say.

sach1636

Fruitcake wrote: »

I think this bit needs a bit of work.

Situation:-


- XXX address is a quiet residential area, away from any traffic


- I am registered keeper of the said vehicle & was parked at the allocated parking bay. I was an occupant of the car and I was the person who was fetching the permit from my adjacent residence 　　


- I am registered carer and in this situation I was caring for someone which resulted in delay of few minutes reaching back to my own car parking space.　


That reads to me as if you were parked. To me you are saying "I am the keeper and I was parked," and, "I am a carer and was returning to my car."


It was the vehicle that was parked, so don't imply that you did the parking or were returning to it. Don't mention the last paragraph at all, or the bit about fetching the permit.


Your vehicle had a permit, that's all you need to say.

Thanks, I wanted to highlight why I was delayed returning to car. I will update wording.

Coupon-mad

And ''Parking charge of £100 is unfair for 10 minute delay in reaching back to my car.'' should be changed to:

A Parking charge of £100 is unfair and disproportionate. It is set to punish a driver for just a few minutes whilst they fetched the permit from adjacent premises. This is normal activity which should be covered by a fair grace period (as required in the BPA Code of Practice) because a single permit cannot be kept within more than one vehicle and there must therefore be a fair time allowed to fetch it after parking.

And this 'Had the Driver not overlooked displaying the permit then no such charge would have been issued.' is a no-no! Change it to:

Had the parking company observed the vehicle for a reasonable period of grace (defined as ten minutes in the BPA CoP) then no such charge would have been issued.

And this 'No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.' change to:

No reasonable person would agree to this charge, the only objective being to unlawfully punish a resident for the time taken to fetch a permit. Day to day activities take a little longer for a carer accompanying a person who meets the definition of disability under the Equality Act 2010, which is the case with this driver and resident. A reasonable adjustment of minutes should be made and a grace period allowed and in any case, the Beavis Judges confirmed that a charge can never be set for the purpose of punishment. Punitive charges remain unenforceable and the penalty rule is certainly engaged here.

And this should be numbered in the body of your appeal and the heading should be:

3. There was no Notice to Keeper issued - No keeper liability under the POFA 2012

And you need to remove this under that title, it makes no sense for a windscreen ticket case:

This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

Finally, you really MUST have:

5. The signage on site is sporadically placed and is neither prominent nor clear

Then show the usual wording we put under that sort of heading as you will see in EVERY POPLA appeal on the forum, every one has this point...don't think just because there are signs up you can't question them. For example, how prominent is the £100 (or whatever the fine is) on the signs and did the lease, where it talks about permits/fines, mention the actual £SUM of the parking charge in figures?

sach1636

hi,
Just thought I will post back the outcome of the POPLA appeal. Unfortunately in my case it was refused. It appears I may have to shell out rip off charges of £120 odd even though I had permit and could not display it in 10 minutes that I was away from my vehicle.
Any advise would help me to decide next steps.
Regards,x

We have now reached the end of the Appeal process and have come to a decision. The decision is final and there is no further option for Appeal.

The Operator issued parking charge notice number xxxxxx, arising out of the presence of a vehicle with registration mark XXXXX.

The Appellant Appealed against liability for the parking charge.

The Assessor has considered the evidence provided by both parties and has determined that the Appeal be Refused.

In order to avoid any further action by the Operator, payment of the £100 parking charge should be made within 14 days.

Assessor summary of operator’s case: The operator’s case is that the appellant did not display a valid permit on the date of the alleged contravention.

Assessor summary of appellant’s case: The appellant’s case is that the Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act (PoFA) 2012. The appellant believes that the Parking Charge Notice (PCN) is not a Genuine Pre-estimate of Loss. The appellant has questioned the operator’s authority to operate on the land. The appellant says that the vehicle was parked correctly within the markings of a bay.

Reasons for the Assessor’s determination: The operator has provided me with photographic evidence of the appellant’s vehicle parked at the private residencial Car Park.

The operator has provided photographs of the signage that is located at the site. The signage states that “Failure to comply with the parking conditions below will result in a £100 parking charge notice…vehicles parked in this area must park in the correct marked bay and clearly display a valid P.T.L permit in the windscreen”

The British Parking Association (BPA) Code of Practice, Section 18.1 of the BPA Code of Practice sets out to parking operators that “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”. Section 18.3 states that, “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Having reviewed the evidence provided by the parking operator, I am satisfied that the site in question has a sufficient amount of signage to stipulate the terms and conditions that must be adhered to.

Parking Charge Notices issued are done so out of a driver’s obligation to pay parking charges in respect of entering a contract by parking the vehicle on relevant land.

Parking Operators are able to transfer this liability from the driver to the registered keeper of the vehicle if it has not been able to identify the driver.

If a Parking Operator seeks to transfer liability to the registered keeper, it must ensure it does so in accordance with the requirements of the Protection of Freedoms Act (PoFA) 2012.

In this case, although the driver has not been identified, I cannot see that the operator has made any attempt to transfer the liability to the keeper as the appellant has appealed in response to the notice to driver issued to the vehicle.

As a result, I am satisfied in this instance the appellant is appealing the driver’s liability for payment of the Parking Charge Notice, and my decision will reflect this.

The appellant says the parking charge does not represent a Genuine Pre-estimate of Loss.

The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount.

Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable.

Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded:
“…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”

Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

The appellant has questioned the operator’s authority to operate on the land.

Section 7 of the BPA Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

The operator has provided POPLA with a copy of the contract between itself and the landowner, and I am satisfied meets the minimum requirements of the BPA Code of Practice.

Furthermore, the appellant states that the vehicle in question was parked correctly within the markings of a bay.

I appreciate the appellant’s comments. However, on this occasion, the PCN was issued for the contravention of not displaying a valid permit within the vehicle.

Based on the evidence provided by the parking operator of the appellant’s vehicle, it appears as though there is a permit displayed within the vehicle. However, both the operator and the appellant have provided a photograph of a permit for bay number 000, which is where the appellant had parked, and I am not satisfied that the permit in the appellant’s vehicle is the same as the permit for bay number 000.

Therefore, the appellant has failed to comply with the terms and conditions of the site.

As such, I can confirm that the parking charge has been issued correctly..

Accordingly, the Appeal is Refused.

Yours sincerely

bod1467

No you do NOT have to pay! POPLA is only binding on the PPC, not the appellant.