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Advice needed on popla stage - flashpark
Vimto101
Posts: 10 Forumite
Hi All
First post here so please excuse all ignorance.
It won't let me post the link to photobucket but my username is jacksterusa and you should be able to hopefully view it on there.
Above is the letters I have received from FlashPark
Basically the driver went to a class in the evening and parked in a car park which was Majestic wine but this space (although next to the spaces of Majestic wine) isn't part of Majectic.
From the photo you can't see what the sign says at all and my number plate is illegible which to me shows no evidence of a contravention being made. I doubt this is enough however.
I have copied a POPLA appeal which looks best suited to mine, would be very grateful of an advice, things to add or take away.
This is what I have so far:
Dear Sir or Madam,
Ticket number: xxxxx
Vehicle registration number: xxxxx
POPLA appeal code XXXXXX
I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Flashpark as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at “place” on "day" "month" 2016. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
When I initially raised my dispute with Flashpark, I took great care to explain why it had no valid claim and I was therefore very disappointed to receive from Flashpark a rejection letter that was very clearly a standard template.
I set out below the principal reasons why I am not liable for this parking charge”.
On the “date” I received a PCN in the post for an alleged contravention with a contravention date of “date”. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.
The date of the PCN was labelled as “date” with an outstanding amount of £85 which would be reduced to £55 if it was paid within 14 days.
I submit the points below to show that I am not liable for the parking charge:
1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
2. Any discounts for paying within 14 days should be at least 40%
3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"
4. No standing or authority to pursue charges nor form contracts with drivers
5. The signage was not readable so there was no valid contract formed between Flashpark and the driver - Unreasonable and unfair terms – no contract agreed to pay £85.
6. Case can be distinguished from ParkingEye v Beavis
7. Inadequate accuracy of ANPR camera
1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that Flashpark provide evidence to POPLA of who the driver was.
The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.
The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.
2. Any discounts for paying within 14 days should be at least 40%
The original PCN cost is £85 with a reduction to £55 if paid within 14 days this should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice.Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
The charge was 'not properly given' in view of a very clear breach of basic charge amounts set out by the BPA. Compliance with this Code was considered to be 'a form of regulation' in ParkingEye v Beavis.
3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"
This is a Majestic Wine customer car park (free) not a "permit holders only car park" I put it to Flashpark to show strict proof of an actual permit scheme being in operation. Not just signs and a PCN mentioning this imaginary contravention.
4. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Flashpark must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Flashpark to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Flashpark and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Flashpark.
5. The signage was not readable so there was no valid contract formed between Flashpark and the driver
The only signs are up on poles and small, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that Flashpark place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by Flashpark to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Flashpark signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Flashpark to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.
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 this Operator's onerous inflated 'parking charges' 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.
6. Case can be distinguished from ParkingEye v Beavis
In its parking charge notice, Flashpark has failed to provide sufficient evidence to justify the £85 loss the landowner might have incurred for the alleged contravention.
The contract entered into between the driver and Flashpark is a simple consumer contract.
This makes plain that the sum of £85 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.
As this is a simple contract, any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.!
Flashpark's £85 PCN is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable. If Flashpark believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.
I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places.
Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.
Any reliance on the Supreme Court judgment in the case of ParkingEye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification.
7. Inadequate accuracy of ANPR camera
Operator is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Flashpark to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Furthermore, as described in the BPA Code of Practice under paragraph 21.1, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner.Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”
Additionally, expanding from point 2 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.
Considering the observations made in point 2 (Ambiguous, inadequate and non-compliant signage) above, I argue that Flashpark has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.
It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
Yours Failthfully
xxxx
The only bit I'm not sure about is the bit stating how high the signs are as the sign is clearly on the fence. Not sure if there is another sign on the way in to the car park but I doubt it.
Thanks for all your help in advance!
First post here so please excuse all ignorance.
It won't let me post the link to photobucket but my username is jacksterusa and you should be able to hopefully view it on there.
Above is the letters I have received from FlashPark
Basically the driver went to a class in the evening and parked in a car park which was Majestic wine but this space (although next to the spaces of Majestic wine) isn't part of Majectic.
From the photo you can't see what the sign says at all and my number plate is illegible which to me shows no evidence of a contravention being made. I doubt this is enough however.
I have copied a POPLA appeal which looks best suited to mine, would be very grateful of an advice, things to add or take away.
This is what I have so far:
Dear Sir or Madam,
Ticket number: xxxxx
Vehicle registration number: xxxxx
POPLA appeal code XXXXXX
I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Flashpark as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at “place” on "day" "month" 2016. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
When I initially raised my dispute with Flashpark, I took great care to explain why it had no valid claim and I was therefore very disappointed to receive from Flashpark a rejection letter that was very clearly a standard template.
I set out below the principal reasons why I am not liable for this parking charge”.
On the “date” I received a PCN in the post for an alleged contravention with a contravention date of “date”. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.
The date of the PCN was labelled as “date” with an outstanding amount of £85 which would be reduced to £55 if it was paid within 14 days.
I submit the points below to show that I am not liable for the parking charge:
1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
2. Any discounts for paying within 14 days should be at least 40%
3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"
4. No standing or authority to pursue charges nor form contracts with drivers
5. The signage was not readable so there was no valid contract formed between Flashpark and the driver - Unreasonable and unfair terms – no contract agreed to pay £85.
6. Case can be distinguished from ParkingEye v Beavis
7. Inadequate accuracy of ANPR camera
1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that Flashpark provide evidence to POPLA of who the driver was.
The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.
The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.
2. Any discounts for paying within 14 days should be at least 40%
The original PCN cost is £85 with a reduction to £55 if paid within 14 days this should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice.Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
The charge was 'not properly given' in view of a very clear breach of basic charge amounts set out by the BPA. Compliance with this Code was considered to be 'a form of regulation' in ParkingEye v Beavis.
3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"
This is a Majestic Wine customer car park (free) not a "permit holders only car park" I put it to Flashpark to show strict proof of an actual permit scheme being in operation. Not just signs and a PCN mentioning this imaginary contravention.
4. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Flashpark must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Flashpark to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Flashpark and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Flashpark.
5. The signage was not readable so there was no valid contract formed between Flashpark and the driver
The only signs are up on poles and small, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that Flashpark place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by Flashpark to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Flashpark signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Flashpark to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.
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 this Operator's onerous inflated 'parking charges' 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.
6. Case can be distinguished from ParkingEye v Beavis
In its parking charge notice, Flashpark has failed to provide sufficient evidence to justify the £85 loss the landowner might have incurred for the alleged contravention.
The contract entered into between the driver and Flashpark is a simple consumer contract.
This makes plain that the sum of £85 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.
As this is a simple contract, any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.!
Flashpark's £85 PCN is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable. If Flashpark believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.
I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places.
Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.
Any reliance on the Supreme Court judgment in the case of ParkingEye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification.
7. Inadequate accuracy of ANPR camera
Operator is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Flashpark to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Furthermore, as described in the BPA Code of Practice under paragraph 21.1, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner.Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”
Additionally, expanding from point 2 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.
Considering the observations made in point 2 (Ambiguous, inadequate and non-compliant signage) above, I argue that Flashpark has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.
It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
Yours Failthfully
xxxx
The only bit I'm not sure about is the bit stating how high the signs are as the sign is clearly on the fence. Not sure if there is another sign on the way in to the car park but I doubt it.
Thanks for all your help in advance!
0
Comments
-
Have you appealed to Flashpark yet? Have you received a POPLA code from them? Have you read the NEWBIES FAQ sticky?
Was the date of your parking event really in 2016?in respect of an alleged breach of parking terms and conditions at “place” on "day" "month" 2016.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Thanks for your response. I appealed to Flashpark as per the NEWBIES FAQ sticky and received a POPLA code and an offer of a reduced rate of £25. I have uploaded all my responses on photobucket but not sure if they are viewable.
Well spotted on the date. The event happened last month so I would change that before sending.0 -
If you post the URL here, but change http to hxxp (makes it a dead link - newbies have restricted uploading/linking privileges until they get into double figures on their post count) then a regular will convert so we can access the images.I have uploaded all my responses on photobucket but not sure if they are viewable.
However, before doing so, please ensure that any information on the images that either personally identifies you (name, address, VRM, PCN ref, specific parking times etc) is scrubbed (redacted) before you post the dead links please.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Ok thanks a lot. Sorry for the delay the website seems to make my computer really slow.
hxxp://s1259.photobucket.com/user/jacksterusa/slideshow/
Let me know if that works.
Thanks again!0 -
http://s1259.photobucket.com/user/jacksterusa/slideshow/
Yep, that works, but many prefer not to have to lie on their side or twist and tilt their computer to read the third image (especially difficult if using a PC!). Any chance of rotating it back through 90°?Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Haha good point.. try now!
Thanks0 -
Haha good point.. try now!
Thanks
Yep, much better. it was getting a pain in the neck!Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Has anyone had a chance to take a look at all?
many thanks0 -
Get rid of #7 completely.
Replace #6 with the #4 I suggested here, instead (checking it all for relevance and editing if needed):
https://forums.moneysavingexpert.com/discussion/comment/70871999#Comment_70871999
and replace the short 'unclear signs' point #5 with the looooong template pre-written for POPLA appeals about unclear signs, as linked in post #3 of the NEWBIES thread.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Brilliant thanks Coupon Mad. Will rewrite it and post here for final approval when I get on a computer. Appreciate the time taken to look over this.0
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