F1rst Parking PCN - Winchester University

Coupon-mad

Yes, go for it. Get incriminating pics!

My friend in that case above, took lots of photos and I used them to illustrate and break up the wall of words in my very long POPLA appeal I wrote for her.

AlexTodd97

Hi All,

As expected, F1rst have come back with the rejection letter as expected. I used the standard BPA template. Does anything come to mind regarding their response?
Please see below;

We acknowledge receipt of your appeal, regarding the above parking charge. Parking at this site is only for vehicles that are parked in accordance with the terms and conditions, as detailed on the signage on site. This signage is clear, in line with industry standards and clearly details any charges that may be imposed, should these terms and conditions be breached.

I have now had the opportunity to review this case and my findings are:
After reviewing the photographic evidence and also your appeal information; on this occasion I will be rejecting your appeal. It is the drivers responsibility to ensure they are parked within a valid parking bay.
The vehicle is parked causing obstruction to others.
First Parking LLP and the Landowner have a contract in place.
I refer to the recent ParkingEye vs Beavis case which was reviewed by The Supreme Court. The court dismissed the appeal and declared that the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.
We are fully compliant with British Parking Association regulations on signage, and confirm that there is adequate signage at this site that is visible, appropriately located, clear and legible, so the Parking Charge is fully enforceable. All non-essential text is in a smaller font at the bottom of the sign, which can be read once the motorist has parked. To facilitate this, a reasonable grace period is in operation in each car park managed by First Parking. This ensures that a motorist can park, examine and understand the signage then choose if they wish to be bound by the terms and conditions. Should a motorist not wish to be bound by these, they can then leave the site without incurring a Parking Charge.
As your vehicle was parked in contravention of the Terms and Conditions of the car park, we are satisfied that the notice was issued correctly in accordance with the BPA Code of Practice and are therefore unable to waiver the charge on this occasion.

You have now reached the end of our internal appeals process

Therefore please choose from one of the following options:

1.Pay the parking charge at the price of £60

Methods of payment:
* Pay by Phone – Call 0200 333 1995
* Pay online – visit http://www.paymyparking.net
* Pay by Post – send a cheque or postal order made payable to First Parking LLP to the following address:

First Parking LLP, PO Box 3322, South Croydon, CR2 1JX

Please be advised that debit card payments made will incur a £1 transaction fee and credit cards will incur a 3% transaction fee.

2. Make an appeal to POPLA within 28 days from the rejection date – The Independent Appeals Service at http://www.popla.org.uk/default.htm. Please note that if you wish to appeal to POPLA, you will lose the right to pay the charge at the discounted rate of £30 (if applicable), and should POPLA's decision not go in your favour you will be required to pay the full amount of £60. By law we are also required to inform you that Ombudsman Services (http://www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above

3. If you choose to do nothing, we will seek to recover the monies owed to us through our debt recovery service and may proceed with Court action against you.

Yours Sincerely

Umkomaas

Have they provided you with a 10-digit POPLA code with their rejection letter?

AlexTodd97

Yes they have.
I haven't yet received a NTK - only the windscreen ticket. Appealed on last day.
Appealed as Keeper.

Umkomaas

Good. So your first POPLA appeal point will be no keeper liability as no compliant NtK has been served within 56 days - but you need to time your POPLA appeal to ensure you get as near to (or beyond) the 56 days as the POPLA deadline allows.

Please read the NEWBIES FAQ sticky, post #3 which has had a major update in the past few days to include a number of ready to use template appeal points.

Post up your draft appeal for critique before submission.

AlexTodd97

Hi,

I have drafted my first POPLA Appeal with relation to the "Causing Obstruction" PCN. Please can anyone review and let me know what should be changed/added?

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POPLA Ref No.XXXXXXX
I am the registered keeper and I wish to appeal a recent parking charge from F1rst Parking LLP .The charge is levied despite the driver not being identified. The PCN was issued for allegedly “Causing Obstruction”, which I contest. There are several basis for appeal which I will list below.
1. Signage –
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. The PCN was issued for allegedly “Causing Obstruction”, however the terms and conditions of the car park state that a PCN will only be issued in the case of not displaying a valid permit. (http://imgur.com/cQSQDuu). As this was not the case, the PCN is invalid. Additionally, there is no mentioning of how to park and what constitutes to “Causing Obstruction” – this is clearly subjective. The car was parked in a way which allowed pedestrians to use the path, and was not parked over any white lines. It should be noted there is also no clear space next to where the vehicle was parked (http://imgur.com/OKBF7i0). There were no terms creating any other contract term except regarding permits, which has previously been established by POPLA in case reference: 2360606017.
''…It appears that this signage only relates to permits”.
“From the evidence provided by both the operator and the appellant, the signage in the site is conflicting and unclear.
I am not satisfied from the evidence provided, that the signage at the location meets the requirements of the British Parking Association’s Code of Practice and as such, the appellant has not been able to see, read and understand the terms and conditions in order to fully comply with them.''
Additionally, the lack of entrance sign breaches the British Parking Association’s (BPA) Code of Practice (CoP)– this car park is not exempt (http://imgur.com/IbcnYLU). This clearly evidences no entrance signs from where the driver would have entered the car park. This is a clear violation of BPA CoP.

2. No 'driver' Liability –
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.
In this case, no other party apart from an evidenced driver 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
The operator does not own the site, even if it is employed to regulate parking, it does not have the right to enforce charges.
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

4. 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.

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I'm not sure if i am able to use the last point, but will check the PCN to see if it mentions POFA 2012. Also, is it okay to use the Imgur images within my POPLA appeal?

Umkomaas

I'm not sure if i am able to use the last point, but will check the PCN to see if it mentions POFA 2012. Also, is it okay to use the Imgur images within my POPLA appeal?

Did they issue a NtK within 56 days or not? If you are arguing non-compliance with PoFA you need to be able to back it up with reasons why.

If you do have evidence of non-compliance, then I'd be placing this appeal point as #2, then the arguments you raise in your current #2 will flow neatly from it.

By all means include photos, but not via links - you don't want to put an Assessor to the trouble of having to chase around the internet to view them. You want them to be on 'your side'. Embed them within/between appeal paragraphs in your submission.

You will need to convert your document to a .pdf file and attach it to the POPLA online appeal window, submitting it under the 'Other' reason for submission. Put words to the effect 'Please see .pdf file for POPLA reference number xxxxxxxx' in the appeal portal dialogue box.

AlexTodd97

Hi,

I received this PCN 49 days ago and am yet to get the NTK - will I still have to receive this?
The latest day I can appeal to POPLA is the 4th December - so it will be cutting it fine.

Thanks for the advice regarding the photos, I will take this on-board.
Just wondering if it is worth leaving the POPLA appeal until the last day - so i could keep the last point or remove just in case i receive a NTK.

Umkomaas

You can wait until the last minute. In fact there's a bit of leeway beyond the POPLA deadline, but it's not documented anywhere. But there are plenty of cases where an appeal sent a couple of days after the deadline have not caused a problem. Obviously if you can make it by the deadline, that's safest.

Make sure you do this online if you're going to push the deadline envelope.

Coupon-mad

AlexTodd97 wrote: »

Hi,

I received this PCN 49 days ago and am yet to get the NTK - will I still have to receive this?
The latest day I can appeal to POPLA is the 4th December - so it will be cutting it fine.

Thanks for the advice regarding the photos, I will take this on-board.
Just wondering if it is worth leaving the POPLA appeal until the last day - so i could keep the last point or remove just in case i receive a NTK.

It will be fine to appeal on the last day or even a couple of days late online (honestly!) but it won't matter too much because by the time the PPC get your appeal from POPLA it will be too late for them.

I'm not sure if i am able to use the last point,

It's your slam-dunk winning point - so yes!