Flashpark PCN

anothpark

Hi all,

Recently received a PCN from Flashpark. It was received after 14 days of the alleged incident (not sure if there's a time limit for them to send a PCN?)

There was no window ticket, it was just a camera image they've included in the PCN with a time and date stamp. I was going to send the generic template for first stage appeal. The contravention was "PERMIT HOLDERS ONLY" and it has a date and time but not a duration. The ticket is for £85 reduced to £55 if paid early.

From this thread https://forums.moneysavingexpert.com/discussion/5305673
it looks like it suggests adding they haven't offered the 40% discount as required by the BPA. Should I add this to the initial appeal or wait for the POPLA stage where it might have more effect?

The signs are too small to see as already highlighted in the template letter but the spots are also outside 2 shops. The shop we used appears to have signs up above some spots that they are for their customers but none of these were available at the time so we parked in this other spot - not sure if the PCN relates to the 2nd shop, so I guess by them not identifying who the end client is that's another +1 for the POPLA stage? I'm also not sure how they'd prove we didn't use the other shop though even if we just browsed or indeed if this 2nd shop are actually the clients!

The Flashpark website FAQ states all of these points aren't valid,but I guess this is to scare-monger, so I'm assuming it will go to POPLA regardless, just wondered if any one had any luck adding additional info at the initial appeal stage?

The other issue is that we're due to P/X the car in question next week, I'm guessing this won't have any bearing even if we're carrying the license plate forward?

thanks

catfunt

£85 reduced to £55 is not a 40% reduction, it's around 35%.

anothpark

Hi,

Thanks, I'm aware of that which is why I asked if I should include that on the initial appeal as referenced by the thread I linked to? Or whether that's best saved for the POPLA stage?

Thanks again

Coupon-mad

Save it for POPLA in case they redeem themselves by 'offering' a lower figure & saying it was a mistake. Hit them with that and other things at POPLA.

Redx

anothpark wrote: »

The other issue is that we're due to P/X the car in question next week, I'm guessing this won't have any bearing even if we're carrying the license plate forward?

thanks

not relevant as the pcn was issued on a date when the RK "owned" the car which is now in the past , they hold the driver responsible (if known) but chase the keeper or RK at the time, or if divulged later

all the car did was provide its VRN ID for the anpr or cameras or "wardens" on the day in question, but the car is not "liable" nor does it have any future relevance as far as recovery of costs etc

frankly, I am amazed that after 3.5 YEARS they have finally caught on to the 14 day rule for POFA2012 to hold sway

anothpark

Hi,

The date of the notice was over 14 days of the contravention date. In fact the text from POFA states:

"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."

and it's actually around 17 days by their own admission from the contravention date and the date of notice. Should I have added that to my first appeal or again wait for POPLA? As by their own letter they're basically admitting they're too late aren't they? Or have I misunderstood the POFA?

thanks

Redx

save it for popla, if it didnt arrive by day 15 its an extra appeal point that the NTK is out of time and so POFA 2012 does not apply

use the blue text appeal template, no changes

save any arguments for popla

ps:- you stated 14 days after the incident, now you say its 17 days or more, both cannot be correct, double check your details

It was received after 14 days of the alleged incident

anothpark

Yeah I originally said it was after 14 days as a general "catch all" but specifically it's 17 days. I've left that out of the initial appeal anyway and when it goes to POPLA I'll use it to craft the next stage of the appeal.
Thanks again all

anothpark

Hi all,

So as expected Flashpark rejected my appeal, they certainly take a long time to reply! Is there anything about appeal reply times I can add? Anyway here is my Popla appeal if someone could look over it. It's modified from an existing appeal posted here but tailored to meet my situation:

Dear Sir/Madam,

On the 19th March 2016 I received a PCN in the post for an alleged contravention with a contravention date of 28 February 2016. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.

The date of the PCN was labelled as the 17th March 2016 with an outstanding amount of £85 which would be reduced to £55 if it was paid within 14 days.

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. Unreasonable and unfair terms – no contract agreed to pay £85. Inadequate signage
3. No genuine pre-estimate of loss
4. No standing or authority to pursue charges nor form contracts with drivers

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

The alleged infringement occurred on 28/02/2016 and from my understanding the NTK was required to reach me by 14 days after this 13/03/2016. Flashpark themselves date the NTK as the 17/03/2016 and it did not arrive to me until 19/03/2016. 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 Flashpark 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. 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. Unreasonable and unfair terms – no contract agreed to pay £85. Inadequate signage
The notices are up on walls, set back from the car park area, and clearly aren’t visible until you park. These spots are also outside a retail outlet and again it is not clear which spots require a permit and which are for customers of the retail stores in question. In Flashparks own photo evidence it is clear that you cannot read these signs unless you have parked a vehicle and gone to inspect them.

{{photo}}

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.

3. No genuine pre-estimate of loss
The charge of £85 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Not only this but as a member of the BPA, Flashpark are required to offer a discount of 40% if the PCN is paid within 14 days. Flashpark offered a reduced amount of £55 on an £85 charge. By my calculations the reduced amount should be £51 and as such are in breach of their terms as a member of the BPA. Flashpark 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. Paragraph 7 of schedule 4 also states that the NTK should specify the ‘period of parking to which the notice relates’. Whilst the PCN details the start time of the alleged contravention, there is no mention of the duration and as such there can be no genuine pre-estimate of loss. 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 Flashpark 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”.

Flashpark 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 Flashpark are likely to be paid by their client Flashpark supply and must be shown in the contract, which leads me to appeal point 5 below.

4. 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, Flashpark 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 Flashpark to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Flashpark 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 Flashpark.


This concludes my POPLA appeal.

Yours faithfully,

System

Could you wash the NTK of personal details and post it up. If the NTK clearly uses Keeper Liability with those dates, then the issue should be taken up with the BPA and the DVLA.

Some may don't bother as the BPA will ignore, but there is a reason to request this and a reason to take it up with the BPA.

Fruitcake

2. Unreasonable and unfair terms – no contract agreed to pay £85. Inadequate signage
The notices are up on walls, set back from the car park area, and clearly aren’t visible [STRIKE]until you park[/STRIKE]. These parking spots are also outside a retail outlet and again it is not clear which spots require a permit and which are for customers of the retail stores in question. In Flashparks own photo evidence it is clear that you cannot read these signs [STRIKE]unless you have parked a vehicle and gone to inspect them.
[/STRIKE]

I would suggest you remove wording where an assessor could say, now you have mentioned it you should have gone and looked at the signs.

Make Not the Landowner a separate point.

Not a GPEOL won't work but your point about the discount is valid, and should be cause for a complaint to the BPA in addition to your PoPLA appeal.