SpringParking PCN against the company's truck

Admin_Lacky

Similarly
As the administrator for a company fleet of vans, I have recently received 9 charge notices from a private parking company where one of our vehicles has apparently entered a "permit holders only" zone for 12 to 20mins on each occasion.

I have been responding as the "Keeper" and wondered if the resent GDPR legislation gives me grounds not to disclose personal data on an employee

andrewlato81

This is what I come up with so far. Any comments greatly appreciated.

9th June 2018


Dear POPLA Adjudicator,


Subject: Parking charge reference number: xxxxxxx, Vehicle Registration: xxx,

We are the registered keeper of vehicle xxxx and we are appealing a parking charge issued by Spring Parking Limited on the following points:


1. Wrong location on the ticket issued.
2. The operator kept pursuing keeper after the keeper appealed.
3. The signs in the layby are none existent. The nearest sign is approx 7 meters away and applies to an area of grass and not to the layby. Even that sign is not prominent, clear or legible from all entry points to the layby.
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
5. Ticket not placed on vehicle in safe and secured manner
6. No prominent, clear and legible signs within boundry of the land,informing pubic that the stretch of land (layby) is in fact private.
7. No information on any T&C of contract with anybody parking in the layby.

The details on above points are as listed below:

1. Operator claims that the vehicle was parked at Trafford Point, Twinning Road, Stretford, Manchester M17 1SH, where in fact it was parked at the time of alleged unauthorised parking at Thompson Road, Stretford, Manchester M17 1SE. It is evident from operator!!!8217;s own photographs as well as ours that the operator is making false claim with regards to the location.

2.An appeal against the ticket was emailed to the operator on the 20th May 2018, yet the operator kept pursuing keeper of the vehicle with Notice to the Keeper issued on the 25th May 2018

BPA Code of conduct says:

14.6 If you receive a challenge or appeal about the issue of a parking charge, you must stop work on processing the charge immediately until you have answered the challenge. You must acknowledge or reply to the challenge within 14 days of receiving it. If you only acknowledged the challenge or appeal you must accept or reject the challenge or appeal in writing within 35 days of receiving it. We may require you to demonstrate that you are keeping to these targets.

3. There are no signs within the layby itself. The only one sign in area, is placed approximately 7 meters away from the edge of layby. It is too small to be seen by drivers and operator is in breach of BPA CoC appendix B4.2:

Signs must show, in plain and intelligible language, all the terms on which an operator may wish to rely. Signs must be placed at the entrance to the site, and there must be enough signs placed in other locations throughout the site so that drivers are given the chance to be aware of the risk involved at the time of parking or leaving the vehicle.

4. 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).

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


So, for this appeal, I put this operator to strict proof of where the vehicle was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5. Ticket has not been placed on the vehicle in breach of BPA CoC appendix 5.1:

When a vehicle is issued with a parking ticket this must be placed on the vehicle in a way that is secure but which does not cause damage to the vehicle. The parking ticket must be waterproof or put in a waterproof envelope, and say on it that the ticket must not be removed from the vehicle by an unauthorised person.

No photographic evidence that the ticket was attached to the vehicle as described above.

6. Absolutely no signs on land said (layby), or its boundries informing the public that the land (layby) is in fact !!!8216;a private land!!!8217;. The only sign with information is 7 meters away and it applies to !!!8216;grassed!!!8217; area of the land an not the layby.

7. There is no contract displayed on site signs as there are no signs, therefore there was no breach of contract and no fine/charge can be applied.


With all the matters described above, it is clear that the operator has not followed BPA Code of Conduct on more than one occasions, we are therefore requesting for the Parking Charge Notice to be cancelled with immediate effect.

Regards,

DH

Coupon-mad

If appealing as a company, you also need to state that the vehicle was not being used 'on behalf of' the company by any known driver 'on duty' at the material time, and so there is no possibility of the law of agency applying even if POPLA's clueless 'sector expert' says so.

You might want to add a version of my ''POPLA don't you dare'' point here:

https://forums.moneysavingexpert.com/discussion/comment/73722735#Comment_73722735

Also add a point that the operator has not complied with the POFA so can't hold the company liable under that Act either.

KeithP

Andrew, you would be wise to remove the PCN number from your opening post.
The private parking companies trawl forums like this just waiting for people to trip themselves up and can use your posts against you.

andrewlato81

Thank you Keith, just done it.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

andrewlato81

HELLO,
this is my final version, including POFA points, please share your opinions on it, I'd like to send it off tomorrow morning. Many thanks


Dear POPLA Adjudicator,


Subject: Parking charge reference number: xxx, Vehicle Registration: xx,

We are the registered keeper of vehicle xxx and we are appealing a parking charge issued by Spring Parking Limited on the following points:


1. Wrong location on the ticket issued.
2. The operator kept pursuing keeper after the keeper appealed.
3. The signs in the layby are none existent. The nearest sign is approx 7 meters away and applies to an area of grass and not to the layby. Even that sign (too small) is not prominent, clear or legible from all entry points to the layby.
4. No evidence of Landowner Authority-the operator is put to strict proof of full compliance with the BPA Code of Practice.
5. Ticket not placed on vehicle in safe and secured manner
6. No prominent, clear and legible signs within boundry of the land, informing public that the stretch of land (layby) is in fact private.
7. No information on any T&C of contract with anybody parking in the layby.
8. Operator has not met POFA schedule 4 rules, in particular paragraph 6.1 (a and b), 7.2 and paragraph 8.2(a)

The details on above points are as listed below:

1. Operator claims that the vehicle was parked at Trafford Point, Twinning Road, Stretford, Manchester M17 1SH, where in fact it was parked at the time of alleged unauthorised parking at Thompson Road, Stretford, Manchester M17 1SE. It is evident from operator!!!8217;s own photographs as well as ours that the operator is making false claim with regards to the location.

2.An appeal against the ticket was emailed to the operator on the 20th May 2018, yet the operator kept pursuing keeper of the vehicle with Notice to the Keeper issued on the 25th May 2018

BPA Code of conduct says:

14.6 If you receive a challenge or appeal about the issue of a parking charge, you must stop work on processing the charge immediately until you have answered the challenge. You must acknowledge or reply to the challenge within 14 days of receiving it. If you only acknowledged the challenge or appeal you must accept or reject the challenge or appeal in writing within 35 days of receiving it. We may require you to demonstrate that you are keeping to these targets.

3. There are no signs within the layby itself. The only one sign in area, is placed approximately 7 meters away from the edge of layby. It is too small to be seen by drivers and operator is in breach of BPA CoC appendix B4.2:

Signs must show, in plain and intelligible language, all the terms on which an operator may wish to rely. Signs must be placed at the entrance to the site, and there must be enough signs placed in other locations throughout the site so that drivers are given the chance to be aware of the risk involved at the time of parking or leaving the vehicle.

4. 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).

Witness statements are not sound evidence of the above, often being presigned, 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


So, for this appeal, I put this operator to strict proof of where the vehicle was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5. Ticket has not been placed on the vehicle in breach of BPA CoC appendix 5.1:

When a vehicle is issued with a parking ticket this must be placed on the vehicle in a way that is secure but which does not cause damage to the vehicle. The parking ticket must be waterproof or put in a waterproof envelope, and say on it that the ticket must not be removed from the vehicle by an unauthorised person.

No photographic evidence that the ticket was attached to the vehicle as described above.

6. Absolutely no signs on land said (layby), or its boundries informing the public that the land (layby) is in fact !!!8216;a private land!!!8217;. The only sign with information is 7 meters away and it applies to !!!8216;grassed!!!8217; area of the land and not the layby.

7. There is no contract displayed on site signs as there are no signs, therefore there was no breach of contract and no fine/charge can be applied.

8. POFA Schedule 4,
Following 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; or
b)has given a notice to keeper in accordance with paragraph 9.

NO NOTICE HAS GIVEN TO THE DRIVER- HENCE POFA SCHEDULE 4 CONDITION ARE NO MET. NOTICE GIVEN TO THE KEEPER HAS FALSE INFORMATION ON IT!

PARAGRAPH
7.2
Notice must:
a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

THE NOTICE TO THE KEEPER DOES NOT SPECIFY LAND WHERE VEHICLE WAS PARKED- OUR VEHICLE WAS PARKED ELSWHERE AND SPRING PARKING MAKES FALSE CLAIM WITH REGARDS TO LOCATION OF THE VEHICLE

PARAGRAPH
8.2
Notice must:
a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

THE NOTICE TO THE KEEPER DOES NOT SPECIFY LAND WHERE VEHICLE WAS PARKED- OUR VEHICLE WAS PARKED ELSWHERE AND SPRING PARKING MAKES FALSE CLAIM WITH REGARDS TO LOCATION OF THE VEHICLE


PARAGRAPH
9.2

Notice must:
a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

THE NOTICE TO THE KEEPER DOES NOT SPECIFY LAND WHERE VEHICLE WAS PARKED- OUR VEHICLE WAS PARKED ELSWHERE AND SPRING PARKING MAKES FALSE CLAIM WITH REGARDS TO LOCATION OF THE VEHICLE


POPLA must not attempt to presume that DH is appealing this PCN on behalf of the driver.
For the avoidance of doubt, DH is simply exercising its right to appeal; this PCN in its own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.

Further, we are aware that POPLA has recently sought to adopt new reasoning that, even in the absence of any argument or evidence being presented by the parking company, the only reasonable conclusion is that the driver must an employee of the company undertaking duties in accordance with his or her employers wishes.
This reasoning is fundamentally flawed and such a conclusion has no valid basis in Law.

POPLA has promised, that its assessors will!look at the evidence that is provided to them from both parties and make a decision based on this alone!and we must insist that POPLA keeps its promise.

We draw POPLAs attention to two recent Court cases which demonstrate why it is unreasonable to presume that a driver of a company vehicle is a) a company employee and b) carrying out duties for or on behalf of the company at the time that the car is parked.

Excel Parking Services Ltd vs Clever Car Finance Ltd (Skipton Ref. D6DP7R03 12/12/17)

In summing up, the judge said the case rested on whether the driver had been given either express or implied authority from the Defendant to enter into a contract on its behalf at the material time. It was incumbent on the Claimant to prove or convince her of such on the balance of probabilities, which it had failed to do. It transpired that at the time of the parking incident, the driver of the company vehicle had parked at a Retail Park to take her three year old daughter shopping for toys and was therefore quite obviously not carrying out duties on behalf of the company.

UK Parking Control v XYZ Ltd (Basildon Ref. D5HW078T 4/10/2017)

This case involved an alleged breach of parking terms and conditions on a private housing estate. It was determined that the driver was not acting as agent of the company, because this was private use after the working day had finished.


POPLA must not seek to favour Spring Parking by introducing its own subjective and unsubstantiated presumption that a contract did exist.

It is important to note that the vehicle was not being used 'on behalf of' the company by any known driver 'on duty' at the material time.

POPLA don't you DARE assume the driver must work for the company (no such evidence exists, and any insured person and plenty of family members can drive this vehicle, not just for 'business' but also for pleasure). And don't you DARE ask your Sector Expert to trot out the ridiculous 'new' conclusion out of the blue, that even a wife or child of the employee, out doing their shopping at Christmas at the weekend, or getting a McDonalds at night, is somehow 'carrying out duties' for the company who are therefore (let's all gasp at the ludicrousness...!) appealing on behalf of their employee. And therefore POPLA thinks it can assert that a company (not a natural person) appellant can be considered to be 'by proxy' the (natural person) driver! ...cough... splutter, falls off chair... POPLA if you dare to engage that template answer (which surely!must!be in the recycling bin already, along with that Sector ''Expert''s CV) your decision will be passed to Trading Standards and the Secretary of State for Transport for them to read and weep.''

With all the matters described above, it is clear that the operator has not followed BPA Code of Conduct on more than one occasions, also several POFA schedule 4 condition are not met by the operator, we are therefore requesting for the Parking Charge Notice to be cancelled with immediate effect.

Regards,

DH

KeithP

Vehicle registration number still showing twice in post #13.

andrewlato81

Thanks KeithP,

Fruitcake

Is there any reason why you haven't used the very long signage appeal template post from post 3 of the NEWBIES?

With regard to point 5, the POFA states that a windscreen ticket can handed to the driver or placed on the vehicle. Did the driver touch the PCN whilst talking to the foot scammer?