Flashpark PCN

anothpark

Here is the original PCN received via post


and thanks for the feedback Fruitcake

I think I read POFA right about the 14 day limit paragraph 9 section 5 that if there wasn't a windscreen ticket then this should have been received in 14 days. But now I'm concerned I've misunderstood

What's also interesting is that in their reply to my appeal, as a 'gesture of goodwill' they reduce the charge to £25 for 14 days provided I settle and don't go to Popla. Maybe they're scared of losing...

Also not sure if it's of any use in constructing my popla appeal, but their reasons for rejecting my appeal were:

1. You did not display a valid permit in accordance with the regulations stated on the warning notices displayed in clear and prominent locations around the parking area.
2. Neither the landowner nor flashpark has issued you a permit to park in this area

System

Clear misinterpretation of Keeper Liability there. The dates show it.

The Keeper should send a complaint to the DVLA and asking them to investigate. The Keeper should tell them they have a reasonable belief that there may be more examples of Flashpark's failure to understand the requirements of the time-scales within the Protection of Freedoms Act 2012.

The Keeper can if they wish raise a parallel complaint with the Information Commissioners Office to as Flashpark had no right to process the Keeper's personal information using that paperwork after the 14th day had passed.

This should have been picked up last June in their DVLA audit so if there is a complaint to the ICO, mention the poor audit standards by the DVLA.

Maybe they're scared of losing...

Maybe they're scared of getting kicked out for misrepresentation.

catfunt

I would make No Standing or Authority... as Point 2.
Then, the first two points are the ones that are most likely win it for you.

If they see "no GPEOL" they may well zoom in on that as a reason to turn down the appeal, so make it the last point.
You will need to be clear as to how your case is different from Beavis and why Beavis does not apply to your case.

Have you checked on the Parking Cowboys website when your POPLA code expires? I would check that.

Castle

The creditor is not specified on the NTK.

anothpark

Hi all,
Sorry for not replying I've not been about. Should I mention in my appeal to POPLA that I will also be writing to the DVLA/BPA and potentially the ICO with regards due to Flashparks failure to understand POFA 2012 or just send in separate complaints? @Catfunt supposedly I have 28days since receiving their rejection of my initial appeal to contact Popla, though there is no date on their letter!

Here's my updated appeal so far.

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. No standing or authority to pursue charges nor form contracts with drivers
3. Unreasonable and unfair terms – no contract agreed to pay £85. Inadequate signage
4. Failure to adhere to the BPA code of practice

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.

Flashpark have also failed to identify the ‘creditor’ who is legally entitled to recover the parking charge, which again make this PCN not compliant with POFA 2012

2. 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.


3. 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. 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

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. Failure to adhere to the BPA code of practice
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.


This concludes my POPLA appeal.

Yours faithfully,

catfunt

anothpark wrote: »

@Catfunt supposedly I have 28days since receiving their rejection of my initial appeal to contact Popla, though there is no date on their letter!

That's why I said you need to check your code.

The link is here:
http://www.parkingcowboys.co.uk/popla-code-checker/

Enter your code and it will tell you whether it is valid or not, and when it expires.
I would do this, as there was a long delay in you getting it. Just to be on the safe side.

anothpark

I have 17 days left apparently

catfunt

ok. If you only just (when??) got their reply, then that is another thing to complain to the BPA about. You're supposed to get 28 days, so allowing for postage, you've been short-changed by at least a week.

anothpark

Ok thanks and is it worth mentioning I will be complaining to the BPA and DVLA in my POPLA appeal or is that really not worth it? Does my amended appeal look ok?

anothpark

The popla website really makes it difficult to construct a decent appeal now doesn't it. It all seems to be geared towards the physical aspect of parking rather than Flashpark haven't followed the correct procedure. Should I include the fact that I am complaing to the BPA and DVLA on my Popla appeal? Do you think it would lend more weight?

Am I best off just posting it rather than using the website?