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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
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  • edited 27 September 2016 at 10:11PM
    Danny80sDanny80s Forumite
    52 Posts
    edited 27 September 2016 at 10:11PM
    Revised appeal:

    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) 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 and immediately went to purchase a ticket, then returned to the car. (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.

    Private Parking Solutions (London) Ltd 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 Private Parking Solutions (London) Ltd 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.

    The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

    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 and no evidence of Landowner Authority supplied - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    As Private Parking Solutions (London) Ltd 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


    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) 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
  • FruitcakeFruitcake Forumite
    55.9K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Forumite
    I have only skim read this, but I suggest you remove the time the driver entered the car park. Just put that the driver arrived and immediately went to purchase a ticket, then returned to the car.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • FruitcakeFruitcake Forumite
    55.9K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Forumite
    Here's some more info about premium rate numbers from another poster. For 0845, replace with 0844.

    "The 0845 number breaches Regulation 41 of the Consumer Contracts Regulations 2013. These regulations came from BIS, not Ofcom, and took effect on 13 June 2014. This can be reported to Trading Standards (via the Citizen's Advice national Consumer Helpline on 0345 404 0506).

    The omission of call costs from the sign breaches Ofcom regulations that took effect 1 July 2015. This can be reported to ASA via their webform."
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • FruitcakeFruitcake Forumite
    55.9K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Forumite
    From the appeals page,

    APPEALS SHOULD INCLUDE THE FOLLOWING:
    TIME AND DATE OF ISSUE PCN;
    REGISTRATION OF VEHICLE;
    TICKET NUMBER
    MAKE AND MODEL;
    OPERATOR NUMBER;
    YOUR NAME AND ADDRESS;
    NAME AND ADDRESS OF DRIVER/KEEPER ( IF DIFERENT FROM ABOVE)
    CAR PARK LOCATION:
    ON WHAT BASIS ARE YOU APPEALING?

    No. They can invite the keeper to name the driver, but not imply that they should name them. I suggest that is misrepresentation as well.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • Coupon-madCoupon-mad
    113.6K Posts
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    Can't yet see the template point about the keeper appellant not being shown to be the 'individual liable'? Should come as a separate extra point after 'no keeper liability'.
    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
  • It's there.

    is that right?
  • The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

    Oh yes - sorry, missed it as I was skim-reading numbered points only! I would say it just needs numbering as a stand-alone point #3 (and move the other numbers down).
    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
  • When appealing with POPLA on their site it asks for the drives details....

    Is that right?
  • How do you appeal using the PDF?
  • Danny80s wrote: »
    When appealing with POPLA on their site it asks for the drives details....

    Is that right?
    It asks for the ''motorist's'' details but I've always just put the person's name & address & car/PCN data in, plus eleven zeros for the phone number!

    A keeper can be described as a 'motorist' I suppose, in most cases. It's not asking who the driver was.

    The PDF just gets uploaded under 'OTHER'. ONLY choose 'other'.
    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
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