Brittania Parking PCN

met6173

Its let me do this bit but now says i cant do next bit because of security tokens...what happened yesterday then it locked me out

met6173

[FONT=&quot]“2) The notice must – f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under paragraph (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 Notice to Keeper that was received (Parking Charge Number xxxxxxx, dated xx xxxxx of 2017) omits such information. I have included in my POPLA submission the two pages of the notice which confirms that such text is absent. The only instruction in this regard is as follows:[/FONT]

met6173

“Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them for payment.”

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).
As this operator has evidently failed to serve a compliant 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 elaborated.

met6173

1. POFA 2012 Schedule 4, Paragraph 9.5 states

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
As already mentioned the PCN was issued 15 days from the alleged contravention. 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.

Umkomaas

If you are copying and pasting from Word, this could be your problem. MSE Advisory note:

http://forums.moneysavingexpert.com/showthread.php?t=5706338

met6173

POFA 2012 Schedule 4, Paragraph 9.6 goes on to say
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
After being issued on the Thursday 23rd November the letter was not received until Monday 27th November, some 19 days from the original alleged contravention. Again I must state that 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.

met6173

4. I do not believe that Britannia Parking has the authority to issue the PCN as they do not own the carpark and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
Britannia Parking must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant Britannia Parking the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between Britannia Parking and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

met6173

Apologies if this is all disjointed but it was the only way the forum would let me post

Coupon-mad

Hard to tell but you haven't used the templates from the NEWBIES thread about signs and and about landowner authority. It's not long enough, IMHO!

met6173

Hopefully this will make it more readable....i've included part on land ownership but wasnt sure about signage as in the appeal letter Britannia ignored my comments re dates and only concentrated on signage...

8th January 2018

PCN xxxxx
Reg No:-

Dear Sir/Madam,

I am writing to appeal a PCN issued to myself as the registered keeper by Britannia Parking. The alleged parking contravention dates back to xth November 2017. The Notice to Keeper wasn’t issued until xxrd November 2017 and received xxth November. There are number of errors with the PCN issued by Britannia Parking.
1. Britannia Parking has not met the keeper liability requirements and therefore keeper liability does not apply. Britannia Parking can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As Britannia Parking have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

In an e-mail correspondence I had prior to appeal I was informed that the PCN was not issued under POFA 2012 stating ‘I have looked at this PCN and there has been no delay, we have up to 35 days to notify the keeper, if the PCN is not issued under the Protections of Freedoms Act 2012 (POFA). Time frame if POFA is quoted in the text on the PCN – 14 days, Time frame if POFA is NOT quoted in the text on the PCN – 35 days. Unfortunately the POFA Legislation is quite complex and can be very confusing if you do not work with the private car parking industry, to understand the requirements to be able to issue a PCN within the 14 days.’ As I understand it if Britannia are not pursuing me under POFA 2012 they can only pursue the driver NOT the registered keeper and had no right to contact DVLA to obtain owner details.

In their response to my original appeal they state ‘The Parking charge notice was issued to your vehicle because you failed to purchase a valid ticket. It is the drivers responsibility to ensure that they have read and understood the terms and conditions for using the car park. ‘ . The wording in their letter infers and implies that I as the registered keeper am also the driver for which Britannia Parking have no supporting evidence.

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.’

It is my understanding that for an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified and the Notice to Keeper fails to comply with section 9 of PoFA 2012 (no windscreen ticket was issued), specifically the following passage:

“2) The notice must – f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under paragraph (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 Notice to Keeper that was received (Parking Charge Number xxxxxxx, dated xxrd November 2017) omits such information. I have included in my POPLA submission the two pages of the notice which confirms that such text is absent. The only instruction in this regard is as follows:

“Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them for payment.”

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).
As this operator has evidently failed to serve a compliant 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 elaborated.


2. POFA 2012 Schedule 4, Paragraph 9.5 states

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
As already mentioned the PCN was issued 15 days from the alleged contravention. 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.

3. POFA 2012 Schedule 4, Paragraph 9.6 goes on to say
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
After being issued on the Thursday xxrd November the letter was not received until Monday xxth November, some 19 days from the original alleged contravention. Again I must state that 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.
4. I do not believe that Britannia Parking has the authority to issue the PCN as they do not own the carpark and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

Britannia Parking must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant Britannia Parking the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between Britannia Parking and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

5. Britannia Parking seem unable to decide if they are pursuing me as the registered keeper using POFA 2012 or as the ‘assumed’ driver without evidence. If they are pursuing me as the assumed driver of the vehicle without POFA 2012 they have no proof as to the identity of the driver. If they are pursuing me as the registered keeper using POFA 2012 they issued the notice in a untimely manner and wrongly requested my details from DVLA without cause. It seems that Britannia are confused by the wording of the POFA legislation. It is of huge concern to me that when Britannia Parking are responsible for issuing numerous PCN’s that they are so unaware of the laws applied to them.