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Paid for a P & D but still got a PCN.

edited 1 September 2016 at 10:34AM in Parking tickets, fines & parking
53 replies 3.3K views
1246

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  • Still no NtK so I'm going to prepare to send my appeal to POPLA.

    I'll post it up once I've finished updating it if members don't mind having a look?

    Cheers
    Danny
  • Coupon-madCoupon-mad
    113.6K Posts
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    Yep...do have a look at the template examples now posted in the last page of 'POPLA Decisions', ready for anyone to copy and use.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • edited 27 September 2016 at 7:09PM
    Danny80sDanny80s Forumite
    52 Posts
    edited 27 September 2016 at 7:09PM
    Hi guys.

    Here's my revised POPLA appeal if you dont mind to take a look...

    Dear Popla

    POPLA Ref. XXXXX – Private Parking Solutions (LONDON) LTD Charge Notice Ref. XXXXXX

    I write to make my formal appeal in respect of the above detailed Parking Charge Notice issued by Private Parking Solutions (London Ltd) in respect of an alleged breach of Parking Terms and Conditions at Ashford Car Park – August 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) No Notice to Keeper received.
    3) Private Parking Solutions (LONDON) LTD has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
    4) Unclear and Inadequate Signage.
    5) Breach of the Consumer Contracts Regulations 2013 and of the industry Code of Practice.
    6) No evidence of Landowner Authority.
    7) Breach of the BPA Code of Practice: using terms which impersonate authority and not supplying evidence to an appellant.

    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 Private Parking Solutions (LONDON) LTD 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 Private Parking Solutions (LONDON) LTD 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 Private Parking Solutions (LONDON) LTD to ignore their industry code.

    2) A Notice to Keeper has not been received.

    A Notice to Keeper has not been received and therefore the requirements of POFA 2012 have not been met.

    Private Parking Solutions (LONDON) Ltd are attempting to hold me liable as keeper of the vehicle for this parking charge and must rely on POFA to do so. They have however provided no evidence that POFA was followed. They have not “followed all rules in accordance with POFA” at all, the process was not “done correctly” as they have still not complied with the requirements laid out in Schedule 4 of POFA to hold me liable as keeper - no Notice to Keeper has ever been issued.

    A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

    ''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. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

    3) 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 unreacted, 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.).


    4) Unclear and Inadequate Signage.

    Although Private Parking Solutions (LONDON) LTD is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without being between two parked cars, 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 favorable to the consumer is to prevail.

    4) The car park signage failed notify the driver that Private Parking Solutions (LONDON) LTD 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 Private Parking Solutions’s signs did not include as a core term any condition advising the driver that Private Parking Solutions Ltd 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 Private Parking Solutions (London) Ltd 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 Private Parking Solutions (London) Ltd intended to exercise its rights under POFA


    5) Breach of the Consumer Contracts Regulations 2013 and of the industry Code of Practice.

    Promoting an 0844 number without call costs stated in close proximity to the number is also a breach of Ofcom regulations.

    6) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 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

    7) Breach of the BPA Code of Practice: using terms which impersonate authority and not supplying evidence to an appellant.

    The Link to Private Parking Solutions (London) Ltd own 'appeals' webpage:

    https://www.privateparkingsolutions.com/index.php/how-to-pay-charge?id=27

    “Offenders should note before making an appeal that all vehicles are photographed by digital camera, which is date-and time-stamped showing the offense committed."

    "Photographs are for internal use ONLY and they will only be passed over to a specialist debt collection agency and used as prosecuting evidence in any court case against you. We do not supply this evidence to members of the public."

    It's not an 'offence' (Police/criminal term only)

    It's not an 'offender' (Police/criminal term only)

    They cannot 'prosecute' (criminal cases only!)

    And to withhold photos until court, and not supply any evidence of the allegation to the registered keeper, breaches the Overriding Objective of the pre-action protocol, let alone failing all POPLA requirements if this operator is saying (as they appear to be) that they will send photos to POPLA that they will not send to the consumer. Photos are categorically not allowed to be withheld.

    Also, when you try to download their appeals form from their badly misspelt mess of an ungrammatical, unprofessional appeals page, you get a 404 error:

    https://www.privateparkingsolutions.com/images/PDFDOWNLOADS/APPEALS_FORM.pdf

    So the 'appeal form' appears not to exist.

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

    Yours faithfully

    Danny

    Cheers
    Danny
  • Sugar!!!!!

    Just checked my POPLA code and got this outcome:

    Deadline information
    Your appeal deadline is Wed Sep 28 2016
    You have 1 day(s) remaining for your appeal to reach POPLA

    I'll need to send my appeal today.

    Would you mind having a look for me to see if my appeal is ok?

    Regards
    Danny
  • edited 27 September 2016 at 5:53PM
    Coupon-madCoupon-mad
    113.6K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
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    edited 27 September 2016 at 5:53PM
    You are FINE. Relax. You have all week.

    POPLA codes last for a few days after the 28, honestly, been there done that for people days late.

    You should add the example template from the POPLA Decisions thread (from this month, at the end) the one that says the individual appellant has not been evidenced to be the driver... should go after your point about no NTK.

    And improve your 'signage' and 'no landowner authority' points (see the POPLA Decisions longer examples, you can use them verbatim if you wish). There is more evidence you can add to what you have there.

    I would also add near the end, a point called:

    Breach of the BPA Code of Practice: using terms which impersonate authority and not supplying evidence to an appellant.

    Link their own 'appeals' webpage:

    https://www.privateparkingsolutions.com/index.php/how-to-pay-charge?id=27
    Offenders should note before making an appeal that all vehicles are photographed by digital camera, which is date-and time-stamped showing the offense committed.

    Photographs are for internal use ONLY and they will only be passed over to a specialist debt collection agency and used as prosecuting evidence in any court case against you. We do not supply this evidence to members of the public.

    It's not an 'offence' (Police/criminal term only)

    It's not an 'offender' (Police/criminal term only)

    They cannot 'prosecute' (criminal cases only!)

    And to withhold photos until court, and not supply any evidence of the allegation to the registered keeper, beggars belief and breaches the Overriding Objective of the pre-action protocol, let alone failing all POPLA requirements if this operator is saying (as they appear to be) that they will send photos to POPLA that they will not send to the consumer. Photos are categorically not allowed to be withheld.

    Also, when you try to download their appeals form from their badly misspelt mess of an ungrammatical, unprofessional appeals page, you get a 404 error:

    https://www.privateparkingsolutions.com/images/PDFDOWNLOADS/APPEALS_FORM.pdf

    So the 'appeal form' appears not to exist.

    they also hide the POPLA number, not on the front page of the rejection letter? Or not explain that option clearly? If so, that's another breach.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Coupon,

    I cant find the template....

    Do you have a link?

    sorry......
  • Coupon-madCoupon-mad
    113.6K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Forumite
    Nope (I believe it's important newbies use the forum the way it works best for you) but I will give you two ways to find it!

    either - read 'POPLA Decisions' (the top thread) from the end, backwards...it's right there...a whole page of template POPLA appeal points I posted only the other week (the dates will give you a clue).

    or

    search this board for the words 'individual liable'. You will find it in people's recent POPLA appeals that way.



    :) I never spoon-feed links, forgive me!!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Thanks Coup.

    I finally found what you suggested and have updated my appeal.

    Could you have another look for me.

    I know you said I still have time but I want to get the appeal off tonight just in case.

    Cheers
    Danny.
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