This PCN was not issued under POFA - CTT Collections

thegentleway

Umkomaas wrote: »

Yes, why not? Why do you feel that you should just roll over on all of this and take it without blinking.

Hassle should be a two-way street!

OK, I have complained to the BPA and DVLA about CTT ignoring my appeal.

thegentleway

Hi,

The saga continues. Esme Berry from AOS has replied to my complaint with a copy of a letter allegedly posted on 18th October with a 10-digit POPLA verification code.

Coupon-mad

Anyone smell a rat?!

The BPA seems to hide things under the carpet so often they must trip over the bumps!

thegentleway

Coupon-mad wrote: »

Anyone smell a rat?!

The BPA seems to hide things under the carpet so often they must trip over the bumps!

Yep, I can definitely smell a rat.

Do I contest that this letter was sent or appeal at POPLA with the code they've given me?

Coupon-mad

Appeal to POPLA using the templates from 'POPLA Decisions' (penultimate page of that top thread has 4 or 5 points you can use). All deliberately looooong to make most PPCs lose the will to live!

thegentleway

Coupon-mad wrote: »

Appeal to POPLA using the templates from 'POPLA Decisions' (penultimate page of that top thread has 4 or 5 points you can use). All deliberately looooong to make most PPCs lose the will to live!

Thank Coupon-mad.

Is this draft OK:

Parking Charge Notice – xxxxxx/xxxxxx
Issued by CTT
POPLA Ref: xxxxxxxxxx

I am writing to you to lodge a formal appeal against a parking charge notice (PCN) sent to myself as registered keeper of a vehicle, in respect of an alleged breach of parking conditions at Warwick Parkway Station (Warwick - 2602) car park on 2nd August 2016.

I appeal to you that I am not liable for this parking charge on the basis of the following points:

1) No proof that the individual they are pursuing is the driver liable/The operator’s PCN is not compliant with the Protection of Freedoms Act 2012
2) CTT’s Notice to Keeper failed to meet the mandatory delivery timescales laid down by POFA
3) CTT has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges
4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
5) The driver did not park in this car park and is a victim of “double dipping”


1 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.

POFA Para 9(2)(f) states that the Notice to Keeper must

‘warn the keeper that if after the period of 28 days […]
(i) the amount of the unpaid parking charges […] has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will have the right to recover from the keeper so much of that amount as remains unpaid’.

As the Parking Charge Notice received in this instance does not include this warning, the operator 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. This is a clear and strict requirement under the relevant legislation that CTT have not complied with and as such cannot rely upon to hold me liable as keeper.

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.''

2 CTT’s Notice to Keeper failed to meet the mandatory delivery timescales laid down by POFA

Contrary to the requirements of Sch.4 Para 9 (4) (b), the Notice to Keeper was not delivered within the relevant period as defined in Sch.4 Para 9 (5).

Date of alleged contravention was 2nd August 2016.

Notice must be delivered within a period of 14 days beginning with the day after that on which the specified period of parking ended, i.e. by 16th August (POFA Para 9 (5))

A notice sent by post is to be presumed to have been delivered on the second working day after the day on which it is posted (POFA Para 9 (6)). As the Date of Issue on the Parking Charge Notice is 26th August, the delivery date can be presumed to be no earlier than 30th August 1916, 28 days after the alleged incident.

The Notice to Keeper was delivered outside the 14 day maximum period allowed. As such, Keeper liability cannot apply.

POPLA please note that this 14 day period is ONLY that stipulated in the POFA 2012 and has nothing to do with any other 14 day period – e.g. there is a mere guideline ‘target’ mentioned in the BPA Code of Practice regarding posting PCNs after receiving DVLA data. This was the subject of an erroneous POPLA decision in July 1016 by an Assessor with initials R.E. and that procedural error is the subject of a formal complaint already in the public domain. POPLA Assessor, please consider ONLY the POFA for this appeal point as that is the applicable law and the Notice to Keeper is, as a matter of irrefutable fact, deemed delivered too late.

3 CTT has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that CTT 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, CTT must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that CTT merely holds a basic licence to supply and maintain signs and to post out 'tickets' as a deterrent to car park users. I therefore require CTT 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 CTT 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.). A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.

4 The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here is the Warwick Parkway Station sign:



There are neither full terms nor the sum of the parking charge displayed at the entrance to the site so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, most signs do not clearly mention the parking charge.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''


As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

So, for this appeal, I put this operator to strict proof of where the car was allegedly parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show any entrance signs and how they would appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5 The driver did not park in this car park and is a victim of “double dipping”

On the occasion of the alleged incident, the driver did not park the car at all, but drove into the carpark in the morning in order to drop off a passenger then immediately exited the car park. The driver returned in the evening and yet again, did not park the car, but drove into the car park in order to collect a passenger then exited the car park.

I would draw the Assessor’s attention to case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) in which the judge ruled that the time the defendant spent driving round the car park did not classify as 'parking', stating that “As I have already indicated there can be no dispute this is a paying car park. It cannot be said that the signs are unclear in that regard, but would somebody circling the car park know that they were liable to pay by being in the car park for […] longer than [X] minutes? Well I have no evidence to suggest they would know that.” And “The difficulty for the Claimant here is they cannot prove whether this car was parked or not and I have got to consider the matter on the balance of probabilities. On that balance of probabilities […] I am satisfied the Defendant was not parked and I am not satisfied that it was clear to the Defendants that by […] entering or remaining within the area covered by Parking Eye Ltd they were liable for a charge, that the signage does not make that clear in my view unless one gets out of the car, walks up to it, by which point it seems to me one would be parked.”

CTT has deliberately omitted ANPR evidence that shows the driver leaving the car park in the morning and returning in the evening. I can confirm my car was parked 9 miles away at my place of work in Coventry from 8:00 until 18:00 on the 2 August 2016. Since my car was never parked at Warwick Parkway Station, I put this operator to strict proof of where the car was parked.

Coupon-mad

That's a work of art, and will do the job.

As it is double-dipping, in point #5 I would remove this, which is not about a double visit:

I would draw the Assessor’s attention to case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) in which the judge ruled that the time the defendant spent driving round the car park did not classify as 'parking', stating that “As I have already indicated there can be no dispute this is a paying car park. It cannot be said that the signs are unclear in that regard, but would somebody circling the car park know that they were liable to pay by being in the car park for […] longer than [X] minutes? Well I have no evidence to suggest they would know that.” And “The difficulty for the Claimant here is they cannot prove whether this car was parked or not and I have got to consider the matter on the balance of probabilities. On that balance of probabilities […]

I am satisfied the Defendant was not parked and I am not satisfied that it was clear to the Defendants that by […] entering or remaining within the area covered by Parking Eye Ltd they were liable for a charge, that the signage does not make that clear in my view unless one gets out of the car, walks up to it, by which point it seems to me one would be parked.”

...and replace it with the BPA's own article about ANPR which admits that double dipping is a flaw with this technology. I haven't got a link I can show you to that article - I'm on the wrong PC, can't provide links or look at them right now - but I think IamEmanresu does, or others here may be able to find it.

thegentleway

PS: I also complained to BPA and DVLA about the reminder they sent being in breach of 22.6 of the BPA code of practise:

“When you receive a appeal about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the appeal.”

CTT not only continued to process the charge but they also increased it.

Coupon-mad

You can add that as a final nail in the coffin!

thegentleway

Thanks Coupon-mad, I have changed point 5 accordingly and added point 6:

5 The driver did not park in this car park and is a victim of “double dipping”

On the occasion of the alleged incident, the driver did not park the car at all, but drove into the carpark in the morning in order to drop off a passenger then immediately exited the car park. The driver returned in the evening and yet again, did not park the car, but drove into the car park in order to collect a passenger then exited the car park.

I would like to draw the Assessor’s attention to the advice on the BPA's own website http://www.britishparking.co.uk/Other-Advice, in particular the following statement with regards to ANPR:

“As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner (unless advised differently by the Landowner/Landlord), but operators should also now be factoring in a small ‘grace period’ to allow a driver time either to find a parking space (and to leave if there is not one) or make a decision whether the tariff is appropriate for their use or not. This ‘grace period is however at the discretion of the Landlord/Landowner and will also vary in duration, dependant on the size/layout/circumstances of the car park.”

CTT has not checked all ANPR transactions as instructed by the BPA or has deliberately omitted ANPR evidence that shows the driver leaving the car park in the morning and returning in the evening. I can confirm my car was parked 9 miles away at my place of work in Coventry from 8:00 until 18:00 on the 2 August 2016. Since my car was never parked at Warwick Parkway Station, I put this operator to strict proof of where the car was parked.

6) CTT has breached the BPA Code of Practice 2012 - Version 6, October 2015

I received the ‘PCN’ from CTT which was dated 26 August 2016. Despite being appalled that CTT threatened the registered keeper with court proceedings without asking the registered keeper who the driver was, I wrote to CTT to challenge this ‘PCN’ as keeper of the car on 30 August 2016.

CTT replied with a letter dated 31 August 2016 asking me enter into additional correspondence so they could obtain more information which is a breach of the BPA code of practise as per the DVLA’s instructions to the BPA. I.e.:

“the following practices may be considered as Code breaches and must not be continued:
• Asking the motorist to enter into additional correspondence to obtain a POPLA code
• Failing to include a correct and/or valid POPLA Code within the Rejection correspondence
• Issuing a POPLA Code with a date identifier which is significantly different from the date of rejection
• Appearing to indicate that the issue of a POPLA Code is conditional on driver details being supplied”

I complained to the BPA and Joanna Barnes replied with:

“The correspondence provided shows that the operator has not yet completed the appeals process, and has asked for additional information from the motorist to consider the appeal further. This should be submitted to the operator so that the appeal can be assessed and completed, and they have an opportunity to address any concerns you may have.”

I was appalled that the BPA were not only condoning this malpractice but instructing me to respond despite it being a blatant breach of their own code of practice. I highlighted this to the BPA but Joanna Barnes responded:

“In this case, it is evident that the appeals process has not been completed. Therefore they have not had the opportunity to respond to you as per the appeals process. Therefore, moving forward, it is our recommendation that you continue the appeals process directly with the operator first, and provide them with the details they have requested so as to give them the opportunity to assist you.”

This constitutes two separate instances where the BPA has instructed me to breach their own code of practise.

CTT continued to ignore my appeal and sent a reminder dated 22 September 2016 which clearly states:

“The discount amount of £60.00 is no longer valid. Payment £100.00 is now due”

This is evidence that CTT not only continued to process the charge but also increased it before responding to my appeal despite 22.6 of the BPA code of practise:

“When you receive a appeal about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the appeal.”

CTT finally responded to reject my appeal with a letter dated 18th October, i.e. 35 days after my appeal was made. I would like to inquire as to why according to the BPA code of practise, the keeper should be allowed 28 days (see 22.7) to respond whilst the operator has 35 days (see 22.8). I believe this is clear evidence that the BPA is biased.