Parking cowboys

pappa_golf

standuptobullies wrote: »

Thanks for your replies - I will appeal on the grounds that the session was paid for and their speech recognition system is prone to error.

I will appeal on the grounds that the session was paid for and their spE0ch recognition system is prone to error.

my new phone , galexy s6 , you can do messaging by voice activation , just tried it , I weuld have been arrested if I had sent it !

standuptobullies

My appeal to met parking was rejected.
I am considering appealing to POPLA but have just looked at their website and they now say they are now deciding on cases involving byelaws - which they had put on hold up to now.
I am in two minds whether to do a POPLA appeal as I think there should be a separate process depending on whether they are pursuing the ticket as a private PPC charge or an alleged bye-law breach.
The court systems would be different for each. I have read some stuff about POPLA making decisions on matters of criminal law which are outside of their remit and I don't want to be getting involved with that.
What do you think?

safarmuk

POPLA is binding on the PPC but not on you, so with a well crafted POPLA appeal supported by people on here you really have nothing to lose by appealing to POPLA. E.G.

IF you win at POPLA - all done. Case closed. This ends there and then.

IF you lose at POPLA (and with the help of people here and you spending some time you probably wont lose) then you would be no worse off than if you hadn't appealed to POPLA you will just get lots of toothless debt collector letters and the possibility of maybe having a small claims case to defend in the future.

IF you do nothing and don't appeal to POPLA then you will just get lots of toothless debt collector letters and the possibility of maybe having a small claims case to defend in the future.

You see? Nothing to lose in appealing to POPLA and everything to gain.

standuptobullies

Thanks for that - I don't like the idea of POPLA making decisions on bye-laws though - it feels like fighting a battle on two fronts!

pappa_golf

POPLa will refuse to handle any cases on bylaw land IF TOLD ITS BYLAW LAND , and advise MET to use the magistrates court ,

MET CANNOT use the mags , only the train Co and within 6mths

take your time doing the POPLa appeal , leave it as long as you can manage , you want this to time out (6 mths)

Fruitcake

Copy and paste all the relevant PoPLA appeal points from post 3 of the NEWBIES making sure that this is not relevant land as byelaws apply as your number one point. Also add the same to the title of your appeal so the PoPLA assessor sees it first.

Post your draft here for checking before you send it.

Coupon-mad

You will win. So remember what pappa golf said earlier:

do you want to be receiving threatening debt collectors letters for the next 6 yrs or do you want to put this to bed?

I would not think twice about killing this off at POPLA. Show us your draft.

standuptobullies

DRAFT APPEAL TO POPLA
Operator is MET parking.

• Failure to establish the owner.
  
  Sites designated as Railways by the Secretary of State are subject to statutory control in the form of byelaws. Keeper liability under the Protection on Freedoms Act 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050.
  
  Hence railway land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012.
  
  POPLA assessor Steve Macallan found in 6062356150 in September 2016,that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.
  ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’
  
  My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. As such, I am able to appeal as keeper (going by the POFA 2012 definition) but cannot be held liable under any byelaw because the Train Operator would have recourse only to pursue the owner via the Magistrates Court and that has not occurred. This is a third party agent pursuing the day to day keeper.
  
  
  
• The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.
  
  There has been no notice to keeper and POFA 2012 does not apply in this case anyway because it is not relevant land. In such cases where there has been no admission of 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.
  
  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.''

• No Breach of Contract
  
  The ticket incorrectly states:
  
  ‘Issue reason:
  No valid ticket/permit/voucher (Chiltern)’
  The ticket also alleges incorrectly that ‘the parking charge has not been paid in full’.
  
  This cannot correctly describe a contravention in this car park, where pay-by-phone is used and no display of any voucher by the driver is needed.
  The board at the entrance states ‘You must use the RingGo service to pay for parking. No ticket will be issued and you are not required to display a ticket.’
  There was no ticket or voucher to display and full payment was made by phone as evidenced by the attached receipt. One letter of the registration number was recorded incorrectly by the speech recognition system. The driver replied to the confirmatory text with the correct VRN at 8:50 am. The driver does not have control over the data recorded and corrected or otherwise by the pay-by- phone company. He/ she can only be held responsible for their own acts or omissions; not those of another party or their agents. The terms and conditions do not state at the outset that the driver will be held responsible for any errors or omissions made by the speech recognition software or for the accuracy of the data recorded and maintained by the pay- by- phone company.
  I therefore contend that the alleged contravention did not occur and there was no breach of contract.
  A copy of the statement from the pay by phone company is attached showing that payment was made in full.
  A copy of the exchange of texts with the driver and the pay by phone company is also attached.

• No Breach of Byelaw
  
  There is no Railway byelaw known as: 'Issue reason : No valid ticket/permit/voucher (Chiltern)’ and nor can that be a possible contravention in a pay-by-phone car park because it is not possible to display a ticket or voucher. If the operator attempts to hold me liable under byelaws, despite the fact that it is not relevant land (no POFA keeper liability possible) then breach of byelaws, too, is denied. Railway Byelaw 14 (3) says specifically:
  
  ''No person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by an operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by an operator or an authorised person at that place''.
  
  As stated above the driver did pay the appropriate charge at the appropriate time in accordance with the instructions given. The driver did everything that was required on their part.
  An average reasonable driver and genuine train passenger using the pay by phone service does not automatically know what data has been recorded or updated by the staff operating the service. It is reasonable to believe that when the company confirms by text what VRN they have recorded, that they will correct it if they have got a letter wrong. There is nothing in the terms and conditions displayed at the outset to suggest otherwise; nor to suggest that the driver would be held responsible for such an error.
  Further, it is clear from the rejection letter from the operator that they are not contesting that the driver paid in full for the parking session. They appear to be asserting that they are entitled to benefit from any such error.
  
  I contend that no contravention of any contractual term stated on the sign at that place occurred and the PCN was not properly given.
  
  
  
• 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).
  
  Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. I do not believe that this operator has the required landowner authority and, as such; the operator has not met the requirements of this section of the BPA Code of Practice.
  
  Section 7.1 states “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.
  
  Section 7.3 states “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
  
  
  As the operator does not have proprietary interest in the land I require that they produce an unredacted copy of the contract with the landowner authorising them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for any alleged breaches. It will not be sufficient merely to supply a site agreement or witness statement as these do not show sufficient detail (such as restrictions, charges and revenue sharing arrangements agreed with the landlord or any other parties). In order to comply with paragraph 7 of the BPA Code of Practice there must be a specifically worded contract with the landowner otherwise there is no authority.
  
  Further, as a third party payment system is operational at this location, any landowner contract and supplementary site specific user manual, must also provide evidence that this company has a contract with the landowner permitting the following:
  a) payments by this system
  b) The operator has a contractual agreement with the pay by phone company granting this consent for use at this location.
  c) No DPA rights have been contravened as a consequence of using such a system
  d) Full planning consent is in force for the signage at the location.
  
  On the date in question payment was made using a third party pay by phone provider and therefore it is deemed that the operator does not have any right to recover any charges, as revenue from the tariffs typically goes directly to the landowner and payment was made to a separate trading entity.
  
  
• The signage was not clear hence there was no valid contract formed between the operator and the driver
  
  The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between the operator and the driver. There was no offer, consideration or acceptance flowing between this operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.
  
  Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about the operator’s ‘terms and conditions’ was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.
  
  The third party telephone payment system does not communicate any terms and conditions. Therefore, when you pay for your parking by phone, there is nothing to clearly advise how any terms and conditions may be breached.
  
  To be clear, there is nothing to communicate full contractual terms & conditions at the outset.

• Inadequate systems and processes
  
  As stated above, payment at this car park has to be made using the pay by phone service. (‘You must use the RingGo service to pay for parking’)
  The car park is on a busy main road and the speech recognition software used is clearly prone to errors. There do not appear to be any proper checks and balances in the system to ensure the accuracy of the information held and transferred.

I would like formally to request to see all evidence presented by the operator regarding this appeal and the opportunity to refute any evidence submitted by them in relation to it.

standuptobullies

I have received notification from POPLA that MET do not wish to contest the appeal and hence the appeal is successful.
Hurrah!
Still won't park there though.
Thanks for all your help.

beamerguy

standuptobullies wrote: »

I have received notification from POPLA that MET do not wish to contest the appeal and hence the appeal is successful.
Hurrah!
Still won't park there though.
Thanks for all your help.

Congrats:T

Just goes to show that MET were trying to scam you