Paid for a P & D but still got a PCN. 31 August 2016 at 1:51PM edited 1 September 2016 at 10:34AM in Parking tickets, fines & parking 53 replies 3.3K views

Danny80s

To add. This was my appeal email that was rejected:

Dear Sirs

Re: PCN No xxxxxxxx

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

Also, this is a very important point; The driver has a Pay&Display ticket (which that was purchased 4 minutes before the PCN was issued when the driver broke the £10.

The driver did have to leave the car park to break the £10 note, then purchased the Pay&Display ticket straight away.

I think Redx mentioned before that 13# could come into this as you have a 10 minute grace time?

The PPC have said "Motorists should purchase the P&D ticket and then make sure they displayed the ticket correctly on dashboard before leaving the site,"

The problem was. the driver had to leave the site to break into a £10 note to get change for the machine. Does this fall under 13# when considering my appeal with POPLA?

Of course, i still have the ticket.

Cheers
Danny

Redx

a popla appeal is about legal arguments , not what happened on the day

they wont even consider compassion or mitigation or why people had to leave the site to get change

they will only consider if the laws or parking rules or CoP were broken

check the POPLA website and it will probably tell you that proof of a ticket or ticket purchase is not a valid reason for breaking parking rules and wont be considered

they consider the following

NO CONTRACT
POOR SIGNAGE
POFA2012
CRA2015
NTK errors
CoP breaches
not the same as BEAVIS
plus possibly other legal issues

clause #13 is about grace periods , the time to enter a site and purchase a ticket (say 5 to 10 minutes) and over ten minutes to leave a site when a parking event finishes

its also important to state in your thread when you are doing this task on behalf of somebody else (like you are)

we expect the person directly affected to come on here and be advised on the procedures, not a third party, because if it goes to court , they will be in the courtroom and held accountable , not the third party (who may not even be allowed to speak)

Danny80s

So, do I have a case with clause 13# then?

There hasn't been a NTK come through the post yet either?

My partner is expecting our first baby, she's aware of me fighting the PCN but she doesn't want any unnecessary stress. If it was up to her she'd probably just pay the £60 rather go through the battle.

I want to at least try and fight this because I think it was wrong and she purchased a ticket. Just didn't have the change.

I'll put together a POPLA appeal and see what you think...

Redx

only POPLA or a judge can rule on that clause #13 , but it should certainly form part of the popla appeal

as should all the other issues I mentioned (or most of them)

any NTK should arrive between day 29 and day 56 and is why any appeal should have been sent out around day 25

sometimes they dont bother getting the dvla details , sometimes they do , sometimes they dont send an NTK , sometimes they do

all depends if they seek remuneration under POFA2012 , or not

eitehr way , draft your appeal , pojtless asking us what POPLA or a judge will accept , the new POPLA give out some strange decisions , the old one was MUCH better

Coupon-mad

Danny80s wrote: »

So, do I have a case with clause 13# then?

There hasn't been a NTK come through the post yet either?

Yes, a grace period was needed. Do not repeat the 'going for change' excuse in the POPLA appeal though, it's never something that should go into any PCN appeal. You never have time to 'go for change' even in the case of a real PCN from the Council you would NEVER be advised to say that in an appeal! And real PCNs can be won on appeal too, over on pepipoo forum...but that's another story.

But you CAN say (in this case, as it's a private PCN subject to the BPA CoP) that the operator failed to allow the mandatory Grace periods.

And it is good that there has been no NTK. There has to be a NTK for 'keeper liability' to apply.

Danny80s

Ok, thanks.

Looking at the pictures they've attached from the car park attendant, the PCN was issued at 14:48 and the pictures taken at 14:49.

The 'driver' was purchasing a p&d ticket at 14:52 which I have.

I think that's what I'll base my appeal on.

If the driver wasn't getting change, then how do I word this to POPLA though?

Cheers
Danny

Redx

start drafting your popla appeal by reading through any previous drafts in the last 3 monts , including finding those with grace periods and cribbing from them

several other legal arguments will also be in your popla appeal too

the POPLA decisions thread is a good source of info , including some that won on grace periods , work backwards from the last entry

Danny80s

Ok.

Here's a draft for my POPLA appeal.

Could you take a look for me when you get a minute.

Cheers
Danny

Dear Popla

POPLA Ref. XXXXX – PPS Parking Charge Notice Ref. XXXXXX

I write to make my formal appeal in respect of the above detailed Parking Charge Notice issued by PPS (London Ltd) in respect of an alleged breach of Parking Terms and Conditions at Ashford Car Park – July 2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1) Inadequate Grace Period.
2) PRIVATE PARKING SOLUTIONS (LONDON) LTD has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
3) Unclear and Inadequate Signage.
4) No Legitimate Interest - Beavis case not relevant to a tariff car park.

PPS rejected my appeal on the basis that ‘At this private Pay and Display car park all vehicles parked must have valid Pay & Display ticket correctly displayed at all time.’.


1. Inadequate Grace Period.

My appeal to PRIVATE PARKING SOLUTIONS (LONDON) LTD is based on the assumption that the vehicle had remained at the location without the purchase of a Pay and Display ticket. However PRIVATE PARKING SOLUTIONS (LONDON) LTD’ evidence shows no actual time the driver entered the car park and parked the vehicle, merely just photos of a car parked while a Pay and Display ticket was in the process of being purchased by the driver within the ‘Grace time’.

The driver entered the Ashford Antique car park at 14:45, parked the vehicle and proceeded to purchase a Pay & Display ticket (Evidence attached). As you can see from PPS’ evidence, the PCN was issued at 14:48 and pictures taken by the car park attendant at 14:49. The driver purchased the P&D ticket at 14:52. Therefore I don’t believe the driver was given enough ‘Grace period’ to read the signage, accept the terms and conditions, locate the pay machine and purchase a ticket for the car park.

I contend that there was no contravention of the parking regulations because an inadequate grace period was given as required by the BPA Code of Practice, to which PPS must adhere.

The BPA CoP states:

“13 Grace periods

13.2 You should allow the driver a reasonable ‘grace period’
in which to decide if they are going to stay or go. If the
driver is on your land without permission you should still
allow them a grace period to read your signs and leave
before you take enforcement action.

A grace period of a minimum 10 minutes must be offered; 10 minutes to exit the car park and an unspecified period to study the signs, accept the terms and make payment. It is wholly unreasonable and a breach of the BPA Code of Practice for PPS to ignore their industry code.


2) PRIVATE PARKING SOLUTIONS (LONDON) LTD has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.

I do not believe that PRIVATE PARKING SOLUTIONS (LONDON) LTD has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, PRIVATE PARKING SOLUTIONS (LONDON) LTD must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that PRIVATE PARKING SOLUTIONS (LONDON) LTD merely holds a basic licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent to car park users. I therefore require PRIVATE PARKING SOLUTIONS (LONDON) LTD to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits PRIVATE PARKING SOLUTIONS (LONDON) LTD to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


3) Unclear and Inadequate Signage.

Although PPS is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, the signs in this particular car park were not sufficiently clear to give proper notice to the driver. The signs are positioned at a location which is difficult to see as the driver approaches the car park (Affixed to the back of a wall, blocked either side by parked cars) it is unclear that you are entering a zone where immediate cost is being incurred.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68: Requirement for Transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Paragraph 69: Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

4) The car park signage failed notify the driver that PPS intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge.

I have good reason to believe that PPS’s signs did not include as a core term any condition advising the driver that PPS would reserve the right under POFA to hold the vehicle’s keeper liable for the parking charge should this not be paid by the driver.

In accordance with the rule of contra proferentem it is reasonable for the driver to conclude that PPS was one of the many private parking companies that choose not to use the provisions of POFA. The car park signage simply failed notify the driver that PPS intended to exercise its rights under POFA


4) No Legitimate Interest - Beavis case not relevant to a tariff car park.

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment because it is a contractual charge from a pay and display car park; an offer of parking for a set sum was made and in return payment was made in full. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors and is consequently unenforceable.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge (£100) is hugely disproportionate to any alleged unpaid tariff. The charge is not a genuine pre-estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis. If PPS believe that no payment was made (Which is denied by the driver) their demand should be for any unpaid tariff as that would be their only loss. If PPS believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Operator.

However there can be no Beavis case comparison at all because there is no legitimate interest in pursuing a driver for £100 when PPS know full well that driver did pay and they are withholding that information.


Based upon the above-detailed representations, I respectfully request that my appeal is allowed.

Yours faithfully......

Danny80s

Is the above ok guys?

Umkomaas

PPS rejected my appeal on the basis that ‘At this private Pay and Display car park all vehicles parked must have valid Pay & Display ticket correctly displayed at all time.’.

Leave this out - let PPS show POPLA what the charge is for. Sometimes PPCs can even screw this up.

I notice that 'Private Parking Solutions (London) Ltd' is in block capitals everywhere in your appeal, suggesting perhaps that you've done a 'Find and Replace' on a POPLA appeal for another operator. If that is the case, have you thoroughly proofread your draft to ensure their are no obviously incorrect entrails from the previous appeal - like location of incident?

Even if this isn't a 'F&R', I'd take out the block capitals, make it look less like an Internet copy and paste.

Signage - again, if this was lifted from a previous appeal, are you certain that your contentions here are wholly accurate and reflect the actual signage in 'your' car park?

Do you have photographs of the signs and their positioning, especially as you are citing the positioning of the entrance signs? You need to attach them.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Operator.

The GPEOL ship has long sailed, and it's suicide to include in a dismantling of the Beavis case - the very case that blew GPEOL out of the water.

There are stronger Beavis paragraphs to put in than yours. Have a look at this one:

http://forums.moneysavingexpert.com/showpost.php?p=71071381&postcount=15

But please carefully proofread it before blindly copying and pasting any of it into your appeal. It's one of the most annoying things for regulars to have to do all the tidying up of a blatant 'copy and dump' wall of text that OPs can't be bothered to do for themselves. I don't proofread, so please don't rely on me doing it here with anything further you add or amend. I'll skim read, but the rest is up to you.

You haven't challenged their capacity to pursue the keeper under PoFA by highlighting any deficiencies in their NtK, check yours against the details linked below. You need to check everything pedantically, don't overlook even what you might think are 'near enough' elements. If they don't have a perfect fit, they won't meet the requirements of PoFA and the PPC can't then pursue keeper liability.

http://www.parkingcowboys.co.uk/keeper-liability/

Not a bad first effort, but a bit more work needed to tidy it up before submission.