Fined while parked in my own bay

Beautiful-Moose

Ok so after much back and forth Southern Housing are refusing to pay the fine on the grounds that they called me to tell me the permit was ready (despite no proof of the calls being made) Also in one email on 11th May, 5 days after the fine being issued, I asked the Concierge if I collected the permit from them which they say is me admitting I knew it was there (despite any proof again that I knew and of course they have no proof because I didn't know!)

I am now going to appeal to Popla. Can someone please advise me on what grounds I should appeal the ticket and also where I can find a template letter to send to POPLA?

I will also now be lodging a formal complaint with Southern Housing over their treatment of me during not only this but my whole tenancy to date.

bod1467

No templates for POPLA appeals. Start with the POPLA decisions thread (start at the end and work back) and you'll find some links back to threads where people have posted their appeals.

Use one (e.g. from March 2016 onwards) and adapt to your needs. Post your draft here (redacted of personal, identifiable info, and NOT in a new thread) for comment.

dazster

Guys_Dad wrote: »

I have been on this forum for some time. I have never come across any threads where a lease did not have that catch all clause.

For the common areas yes, but this isn't a common area, it's his. He's renting it, and he has a rental agreement separate from his lease. The only terms relevant to the parking space are those in the rental agreement for the parking space, and the fact that he's renting it very likely makes him its lawful occupier and makes the PPC trespassers.

Beautiful-Moose

There are mitigating circumstances to explain why I parked where I did and I am requesting that the charge be waived for this reason. Please see attached evidence, as proof of my claim. After an internal investigation with XXX Estate Manager and Southern Housing Group it has come to light that the permit which I received from SHG in order to be able to park in the underground car park at XXX was in fact the wrong one as well as it not being fit for use within my car. It also has come to my attention that SHG were informed by XXX Concierge on 19th April 2016 of a new and correct permit being available for me to collect however this message was never passed on to me. SHG also failed to response to me via email on the 3rd May when I asked them about the situation regarding the permit. This was 3 whole days before I was issued with a parking fine. Had I been informed of the new and correct permit being available to use in my car I would not have needed to persist with the paper one I had been given.

Is this ok so far? Any advice or additions I should make to this so far?

Coupon-mad

That's not a POPLA appeal. You can't appeal to POPLA on mitigation (come on, even the POPLA website tells a complete novice that much!).

And that WILL LOSE. Sorry that has zero chance at POPLA.

Search the forum for two obvious keywords: 'POPLA permit' and read ONLY recent examples from 2016. Wise up and create your won version based upon the similar permit ones you read from recent weeks.

Show us a proper POPLA draft, you have about 30 days from the rejection letter.

catfunt

Is that for your POPLA appeal? If so, you will lose. Mitigation will not work with POPLA.

Please carefully follow the advice in Post 33 in this thread.
If you carry on as you did when others repeatedly asked you for info about your lease, then you are going to have problems.

A small clue. This will not be about what happened between you and the HA. It is points of law that you will be appealing on.

When does your POPLA code expire? Check here: http://www.parkingcowboys.co.uk/popla-code-checker/


THis is perfectly winnable at POPLA if you put in a bit of work, listen to the advice of others and act on it in a timely manner.

Coupon_Mad knows her stuff. If she speaks on private parking matters,you sit up and take notice.

Beautiful-Moose

Ok I am back! I have read up a bit more and I have come up with this...................

Dear POPLA Adjudicator,

I am the registered keeper of vehicle XXXX and am appealing a parking charge from P4 Parking.

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. Vehicle issued the PCN is considered to be a genuine resident and displayed the permit
3. Inadequate signage or lighting, forming no contract with drivers
4. The operator adds various surcharges - An illegal premium rate number on the PCN and the signage as well as processing fees leading to a charge of over £100, exceeding the appropriate amount
5. No standing or authority to pursue charges nor form contracts with drivers

The registered keeper is submitting this appeal and P4 Parking do not have the identity of the driver. To date I have not been issued a Notice to Keeper (NTK) by P4 Parking. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

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.

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. This operator failed to serve any NTK at all. 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.

Relevant details of PoFA 2012, Schedule 4 are provided for your reference here:
''Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met Conditions that must be met for purposes of paragraph 4
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8...
(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.
8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph
6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(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.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.''

2. Vehicle issued the PCN is considered to be a genuine resident and displayed the permit

I am the registered keeper, a Southern Housing Group tenant and lease holder for Bay 3 in Campbell Court car park where my PCN was issued. My car was parked in Bay 3 which I rent from Southern Housing Group for £10 a week. All my payments for the bay are up to date. The permit I had been asked to use by Southern Housing Group was not fit for use at the time of the PCN as it was unable to be fixed to my windscreen at all and had lost its stickiness to be fixed permanently to the dashboard. In this case it had slipped off the dashboard on to the floor on the passenger side of my car. As I do not use my car every day I cannot be exact as to when this fell to the floor but when I lasted used my car the permit was on display.
Southern Housing Group had been made aware of this issue with the permit numerous times before the PCN was issued and as to the best of my knowledge

Below you will find a picture of the permit in the vehicle on the passenger side floor as I found it when the PCN was received. Please compare this to an evidence supplied to me in P4 Parking’s denial email to me. The pictures are purposely taken from such an angle as to create the impression that no permit was present in the car at the time of the PCN.

{pictures}

Further it is noted that a small sliver sign on the pillar closest to my bay which states “SHG ALLOCATED BAYS, NO UNAUTHORISED PARKING”. There are no terms and conditions attached to this notice and no mention of a permit needing to be on display at all times. As I rent the bay from SHG and all my payments are up to date and the car parked in the bay is the same one I registered with SHG on the day I signed the parking lease for the bay I am authorised to use this bay for my car by SHG. If for example all of the “SHG ALLOCATED BAYS” were occupied by valid SHG residents and tenants, regardless of whether permits were displayed, P4 Parking would still have incurred zero loss. When empty, these resident spaces cannot be re-offered in exchange for fees to those who have no association with the buildings, making the charges punitive.

The reason land owners employ parking companies are to stop non-residents abusing the car park in question. Genuine residents should not be deterred from using the parking spaces provided to their properties for which they hold a lease.

3. Inadequate signage or lighting, forming no contract with drivers

The only parking notices up on walls are away from my bay and all SHG Allocated Bays in the car park. The parking notices are not displayed on the gates upon entering Campbell Court car park nor on the walls in the entrance of the car park. These parking notices do not communicate full contractual terms & conditions.

The Parking Notice on display in the Campbell Court car park and in fact throughout XXX are all out of date. One of the reasons listed on the Parking Notice for being issued with a “ticketed excess charge” is being “Parked without displaying a valid tax disc” Displaying a valid tax disc has not been necessary since 1st October 2014. If this is still one of the valid reasons P4 Parking has for ticketing cars then a vast majority of cars that are registered to the Campbell Court car park or any other car park in XXX would need to be issued with PCN’s as they do not meet the terms of this Parking Notice.
Please see the picture attached of the sign in Campbell Court car park in which the last line states “Parked without displaying a valid tax disc”
{picture}

The Parking Notice on display in the Campbell Court car park displays a different “reduced sum” charge to the Parking Notice on display outside the car park. In the car park the Parking Notice reads that the reduced sum is £65 if paid within 14 days. However on the signs outside the car park state the reduced sum is £60 if paid within 14 days. The price has been altered outside with a small sticker stuck on to the sign. The PCN itself stated the reduced sum was £60. This is all very misleading in terms of what rate is to be paid within the 14 day period.

{picture}

All of these charges are very small and unreadable unless up close and out of the car.
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.

No contract can have been formed between the driver and P4 Parking because the signage is inadequate, out of date and the “charge” is not clearly displayed in large lettering. The ruling of Parking Eye v Beavis is irrelevant in this case as the parking spaces are for the use of the SHG residents, and are not offered as spaces for public parking. A vehicle parking in his own dedicated bay 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.

Please see the agreement by which I rent this parking bay. It is clear from this that I am the lawful occupier of the land and I need no third party's permission to park a vehicle there or to permit a vehicle to be so parked. P4 Parking's signs therefore offer nothing of value to me or to anyone to whom I give permission to park in the bay: such a driver already has the right to park there. Accordingly P4 Parking has offered no consideration, no contract can exist between P4 Parking and such a driver, and this charge is baseless.

4. The operator adds various surcharges - An illegal premium rate number on the PCN and the signage as well as processing fees leading to a charge of over £100, exceeding the appropriate amount
All debit and credit card payment to P4 Parking attract an admin fee of £1.95 (see evidence below).

{picture}

Adding a blanket ‘admin fee’ for all card payments is an illegal surcharge and so this ‘charge’ exceeds the arguably ‘appropriate’ amount:

(a) The maximum ceiling in the BPA Code of Practice is £100. There are neither grounds nor justification under the CoP or the applicable law, to add any extra processing costs. As far as the BPA Code is concerned, this rule exists for the obvious reason that any operator could circumvent the BPA '£100 maximum' every time, otherwise - and where would the line be drawn?

(b) it is also noted that the signage suggests they can add costs for getting keeper details from the DVLA but they cannot charge extra for this, which is a normal part of processing any private PCN. £100 is the maximum PCN for a BPA AOS member. Therefore the phrase "non-payment of the parking charge will result in further costs by way of the keeper's details being requested from DVLA and of enforcement" which is displayed on the signage is misleading and against regulations.

(c) Charging £1.50 fee for ‘all’ card payments including debit cards is banned under statute, in the Consumer Rights (Payment Surcharges) Regulations 2012 explained here:
gov.uk/government/uploads/system/uploads/attachment_data/file/452405/BIS-15-343-BIS-payment-surcharges-guidance.pdf
I do not believe it costs £1.75 for a debit card payment; explained here in an MSE article from 2013:
moneysavingexpert.com/news/cards/2013/04/credit-and-debit-card-fee-clampdown-begins
‘’While transaction processing costs vary by provider, consumer group ‘Which?’ has previously said it believes retailers pay no more than 20p for debit card transactions.’’

(d) An illegal premium rate number on the PCN and the signage (allegedly where the contract is 'formed') renders this demand unenforceable:
callcentrehelper.com/a-quick-guide-to-the-0845-and-0870-number-changes-43473.htm
This is also a specific breach of the BPA CoP 18.7:
''If you provide a telephone line to respond to complaints, challenges and appeals from motorists relating to the terms and conditions of parking they have entered into, these calls must not be charged above the basic rate.''
For the avoidance of doubt, any number starting 070, 084, 087 or 09 is clearly 'premium rate'.
A 'basic rate' number is one starting 01, 02, 03 or 080.

(e) Under the POFA 2012 Schedule 4 the only amount which can be (potentially) sought from a registered keeper is the amount of any outstanding parking charges as stated on a compliant and properly given ‘Notice to Keeper’ (NTK). There is no provision to recover any additional costs if not stated on a NTK and there is no provision to recover anything at all from a keeper, in cases where the operator fails to serve any NTK (see NTK appeal point below).


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, P4 Parking 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 it to P4 Parking to provide strict proof to POPLA and myself with an un-redacted, contemporaneous copy of the contract between P4 Parking 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 P4 Parking. Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. 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”.
Section 7.3 states:
“The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement.''
I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay P4 Parking.

I put P4 Parking to strict proof of compliance with all of the above requirements.

Below you will find a picture of the permit supplied to me by SHG/XXX when I first signed the lease for Bay 3 and the permit the vehicle now holds, as provided to me again by SHG/XXX.

{picture}

Neither of these two permits nor the parking lease supplied to me by SHG adequately (or at all) warned of the AMOUNT of any parking charge nor drew attention to any further terms which could apply to the contract at the time of the permit being handed over. It is too late to bring other terms into a contract (not even those on a sign) if these terms were not part of the agreement made at the time of the permit being provided. They were not. The residents had no idea that a 'fine' of £100 could possibly apply.

In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright.

This concludes my POPLA appeal.

Beautiful-Moose

Seriously any help on this would be great! :-) I am hoping to send it off with pictures this weekend if all is ok and makes sense.

Coupon-mad

Bumping this thread for others to see.

Beautiful-Moose

Thank you Coupon-mad! :-)

I have gone over it a few times and can't think of anymore points that I could add in to my appeal. I did something about Trespassing but I am not sure that would be needed what with all the points I have made so far.