Error in penalty notice

granola

I have made what I hope is a final draft before submission to POPLA. The NTK item might need a bit of breathing on (if so, please let me know), but is assembled from other posts and is as correct as I can make it.

I have four main points: Keeper liability; missing date stamps on the NTK images and non-compliance with CoP, signage disputed (the operator is using new signs which have replaced older ones as proof of what was in place at the time of the conravention; and landowner authority.

Date, reference numbers, etc

I am writing to challenge a parking charge notice received for parking at car park on xx/xx/2017. POPLA code xxxxxx.

The driver has not been named by the appellant, as I am entitled to do. I am the registered keper but I do not drive the car, and was not driving it on the material date.

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

Paragraph 8(f) of Schedule 4 specifically states (f)
the keeper should be warned that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)
the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) 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 (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

The parking charge notice merely states a 28 day period has started, and so the operator either deliberately decided not tell the keeper about the correct start date, or has ignored the condition which governs it. Either way, all the conditions of Schedule 4 have not been met and the NTK is therfore not POFA-compliant.

As I am the appellant throughout, 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.

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 – they will fail to show I can be liable because the driver was not me.


Non-compliance with British Parking Association’s Code of Practice.

There are at least two non-compliances with the Code.

In particular, Condition 20.5a that when issuing a parking charge notice the operator may use photographs as evidence that a vehicle was parked in an unauthorised way.

It says: “The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

The operator prides itself on its membership of BPA’s Approved Operators Scheme Code of Practice, and its technical audits.

But the parking charge notice images clearly do not have a time or date stamp on them.

Three things spring from that. Either the technology was not functioning correctly;
there was some careless photo-editing when the images were transferred to the PCN which cut off the date stamps; or there was some retouching or digital alteration for another purpose. Either way, Condition 20.5a has not been complied with.


3. The signs in this car park were not prominent, clear or legible from all parking spaces.

Likewise, the operator has not added a date or time stamp to images offered as proof of signage current at the time of the alleged contravention.

In its letter of 18 October 2017 refusing the appellant’s appeal, the operator sent undated, untimed images of signage purporting to be prominent and clear. The signage in those images cannot be of signage in place at the time of the alleged contravention for the reasons below.

I submit that the the signs show they were placed in the car park after a recent increase in tariff, some time after the alleged contravention. The fee for two hours parking on the relevant date (checked on the operator’s website at the time of receipt of the parking charge notice) was £3, as evidenced in my appeal to the operator. The signs in the operator’s images show another, higher, rate.

Furthermore, the operator in its 18 October letter did not dispute that the charge for parking for that period on the day was £3, and so it is further submitted as evidence that their images are not those in place at the time and cannot be used to show what and where the signage was then.


I put the operator to strict proof of how their signs appeared from the driver's perspective on that day (xx August 2017). Equally, I require the operator to show how the approach and entrance signs in place on that day appeared from a driver's seat.

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. I therefore submit that full terms could not be read from a car before parking and stock examples of close-ups of the signage will not be sufficient to disprove this.

There was no contract nor agreement on the parking charge at all as the driver did not have a fair opportunity to read terms.



A sign high up at the approach to the entrance was so small as to be unremarkable and unreadable, and there was confusing clutter of plastic bags covering ticket machines inside the entrance.

The driver could not see signs from the parking space, nor yet on that floor, two others and a stairwell traversed to find some information.

The driver revisited the car park some time later and found many more signs in place that had not been there before.

A successful POPLA appeal about a driver not seeing the terms 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 was no contract capable of being established.

This case is similar to the signage in POPLA decision 5960956830, where the Assessor found as fact that the the operator’s signs would not be clearly visible from a parking space.

4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

The operator has not produced any evidence to demonstrate that it is the landowner; or, that it has the authority of the landowner to issue parking charge notices at this site.

The BPA Code of Practice requires the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement.

If the point is specially raised by an appellant in an appeal, then the operator has to address it by producing such evidence as it believes refutes a submission that it has no authority. A statement to the effect that it has a contract will not be sufficient.

I require that the operator produces an unredacted copy of the contract with the landowner. The contract, and any site agreement or user manual setting out details including exemptions, is key evidence to define what this operator is authorised to do.

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 is generally a matter for a landowner only.

For the reasons listed above, I invite you to allow the appeal.

Coupon-mad

You will win, like this person just did on exactly the same point:

https://forums.moneysavingexpert.com/discussion/comment/73388744#Comment_73388744

granola

I've been offline for a bit. Thanks for this useful material. Heard today from POPLA. Britannia Parking has sent reams of material POPLA wants me to comment on in the next seven days. I cannot open them (Mac-user) so expect to get a big bundle of stuff in the post. I'll be in touch.

Coupon-mad

You won't get anything in the post. You need to tell POPLA (tomorrow, urgently) you can't open it.

granola

Told POPLA who re-sent it yesterday in a different form. As it happened, had software to convert it. Today, recorded delivery, arrived the same information from the PC. Still in time for rebuttal of their statement, but they seem to me as keeper rather than registered keeper.

Coupon-mad

OK, so I would quote POPLA's own words from a recent decision about the SAME wording on a Britannia PCN back at the Assessor in case your Assessor needs a nudge in the right direction:

As a Notice to Keeper has been issued straight away, then the Notice to Keeper will need to comply with section 9 of PoFA 2012. In POFA 2012 it states under section 9 2 (f) “warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given— (i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) 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 (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.” In reference to this, the Notice to Keeper states, “You are warned that if, after 28 days, the Parking Charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the Parking Charge from the registered keeper.” The Notice to Keeper does not confirm the correct timescale. As a result, the Notice to Keeper does not comply with the regulations set out in PoFA 2012. Accordingly, I must allow the appeal.

That's from the link I already showed you so it's not news to you - but use their OWN words.

granola

Thanks. Greatly appreciated. The bundle of material the operator sent to POPLA includes a redacted copy of landowner authority. I had asked for an unredacted copy.

The bundle also has papers confirming that the PC took too long to either knowledge my appeal or give a result - 28 days rather than 14 in the CoP. There were at least three Code non-compliances: not powerful points to argue, I suppose, but shows a marked indifference to it from a company which says it is committed to following it.

I commented on that in my POPLA submission.

Umkomaas

The bundle also has papers confirming that the PC took too long to either knowledge my appeal or give a result - 28 days rather than 14 in the CoP.

14 days to acknowledge, but 35 days to provide a result. Neither a showstopper for you, but add it to give the PPC something further to deal with in their evidence to POPLA.

granola

I won, thanks to you wonderful people. From the preamable of POPLA's decision, it looked that I was failing, but in the last couple of lines it was clear that POPLA had acted on a recent adjudication which concentrated on the incorrect time line in the parking charge notice. A small, but vitally significant, error on the part of the parking company.

I'm happy to give my appeal and the POPLA adjudication if that helps others. If so, where should I post them. I'm also drafting a note to my MP asking him to support the parking Private Member's Bill. What web address should I give him to see the parking posts for background information?

I hope this news gives others some comfort this Christmas time.

Umkomaas

You can post it here, then a short synopsis in the POPLA Decisions sticky, with a link back to this thread, so that future readers can get the whole story.

Well done, the rubbish is now out of your life, and very handily in time for Christmas. :T