PCN for 'No Waiting'.

Half_way

If possible still go for the landowner - you should not let time slip on POPLA though.
However I would be temted to ask for some recompense from the landowner for your time wasted/spent on the POPLA challenge should it/when it succeeds.
In other words, once succesful be a complete and utter pain in the backside to the landowner, they are responsible for the actions of their agents, and if their agents have been upto no good, sch as issuing non POFA compliant PCNs, crappy/useless signage then why should you have to put yourself out as a result of their incompetance and lack if due dillegence in allowing an unregulated parkign company off the lead on their land

Lanciadeltaintegraleevo2

I agree no parking period was offered. So, the driver stayed longer than to 'stop, read the signs and depart'. Perhaps when I post my draft you will confirm that I should remove the point on Grace Periods.....

Do you think this could be won on 'no parking contract was offered, so none accepted'? I will put up the text of the signage so that you have the full picture.

I am happy with the mitigation line.

Redx

I couldnt possibly preempt an assessor and guess at what aspect would be won, or not !

if we could predict the future , well, I would be logged into the National Lottery page right now, not MSE

if it were my appeal and I thought they had covered POFA2012 then the no contract/forbidding signage would be one of my main appeal points, win or lose (and the same in court too)

I dont see grace periods as being of any use at all unless the incident was less than 10 minutes in total


there is no excuse whatsover for being there, but as a parking company enter into a contract to park, and no contract was on offer to non-permit holders, then IMHO its a point of contention

Lanciadeltaintegraleevo2

All good advice. I will once I establish who the landowner is. That will coincide with POPLA rather than being before that deadline. Better that than not at all. Will keep an eye on the deadline and submit to POPLA once you guys say 'that should do it'.

Lanciadeltaintegraleevo2

Driver not divulged. Notice arrived before day 15 and wording seems good. However, there is no time period mentioned on the notice, just the date and a specific time. Does that help with POFA 2012? Would the PPC fail POFA 2012 on that? If not, do you suggest the driver appeals rather than the keeper? Hadn't banked on that. Not sure how the driver would do that. Is there time to do that at this stage?

I was hoping that 'no authority and no contract' to manage parking on the site may be a strong point too? Will post draft appeal some time tomorrow.

No joy on the grace periods by what I am reading.

Lanciadeltaintegraleevo2

Good afternoon All.

Thanks to all who helped me get the ball rolling last night, particularly Redx.

The initial draft PART 1 (below is points 1, 2 & 3 of 8 due to too many characters to send whole ducument) to POPLA has none of the recommended changes implemented as yet. I hoped that by seeing all of my appeal points, it would be clearer which points ought to be abandoned, altered or new ones added.

Following Redx's advice, I am expecting to:

Focus on NO CONTRACT (point 5) and PROHIBITIVE SIGNAGE (point 4) as my 2 main appeal points. I had also hoped that NO AUTHORITY (point 3) would be a strong card too, as a number of appeals were upheld on this point. Any thoughts?

Remove point 2, on Grace Periods, altogether.

Am I wasting my time with point 6, 'The operator has not shown that the individual who it is pursuing is in fact the driver', or should I stick with that for the reasons given?

Recent reading suggests that point 8, GPEOL, is not worth bothering about these days. Once confirmed, I will delete all of point 8.

Please find my initial draft for POPLA below. Apologies regarding the length of point 4 in particular! I look forward to your advice on anything that needs to be deleted. Perhaps then we can look at the order I should present the points in for maximum effect.

Thanks, in advance.

Dear POPLA Assessor,

I was the registered keeper of XXXXXXX on XXXXX. I dispute this charge from Park Watch on the following grounds, which I offer for your consideration:

1. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements.
2. Grace Periods: Non-compliance with Protection of Freedom Act 2012.
3. Park Watch has no authority to manage parking at this site.
4. Inadequate signage.
5. No contract between Park Watch and the driver.
6. The operator has not shown that the individual who it is pursuing is in fact the driver.
7. The ANPR system is neither reliable nor accurate.
8. The charge does not represent a genuine pre-estimate of loss.



1. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements. Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Park Watch’s NtK simply claims “No Waiting”.

The NtK separately states a single time and date. At no stage do Park Watch explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

By virtue of the nature of an ANPR system recording only entry and exit times, Park Watch are not able to definitively state the period of parking.

I require Park Watch to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

2. The issuing of this Parking Charge is Non-Compliant under POFA 2012. There are no 10-minute grace periods offered as demanded by the British Parking Association. The driver was on this site for less than 20 minutes. The first and final ANPR images' time stamps differ by less than 20 minutes, and Park Watch do not dispute this fact. There is no period of parking stated on the Notice to Keeper, only a date and a specific time.

Grace Period: BPA Code of Practice – non-compliance. The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

In late November 2017, there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

Finally, some 3 and a half years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”

(Source: Link to go here)

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account – certainly an allegation of under eleven minutes (as is the case here) is perfectly reasonable.

As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions (in this case in the dark with no lighting), decide not to enter into a contract and then leave the car park.

It is therefore argued that the duration of visit in question (which Park Watch acknowledge was 19 minutes 39 seconds) is not an unreasonable grace period, given:

a) The site, due to the tall buildings on either side, suffers from poor, natural light. b) Visibility was hindered further as the site was in low lighting at time of the visit – (hh:mm;ss). c) The lack of consistent and adequate signage throughout the car park in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon the time taken to locate signage prior to entering into a contract. d) The failure to light signage adequately so as to make signs visible to drivers (which they are not, especially on overcast days) and legible once located. e) The lengthiness of Park Watch’s signage (in terms of word count) with a significant amount of text included in a sign stating, in very small font, high up towards the top of the sign, “Failure to comply with the following terms & conditions may result in a parking charge”. This statement clearly implying it is essential this must be carefully read and understood. All factors discussed above serve merely to increase the time taken to:

• Locate a sign containing the terms and conditions. • Read the full terms and conditions in poor light conditions. • Decipher the confusing information being presented.

• Decide not to park and therefore enter into a contract. • Return to car and safely leave the car park.


3. Park Watch has no authority to manage parking at this site. Park Watch has no landowner contract nor legal standing to form contracts or charge drivers. Park Watch does not have a signed contract from the landowner authorising them to issue, demand and collect Parking Charge Notices in their own name at XXXXXXXXXXXXXXXXXXXX. The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner, not a lessee or managing agent.

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor. Please note that a witness statement, such as a signed letter to the effect that such a contract exists, will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA, as requested, sent with sufficient time for consideration and rebuttal.

Umkomaas

The initial draft PART 1 (below is points 1, 2 & 3 of 8 due to too many characters to send whole ducument) to POPLA has none of the recommended changes implemented as yet. I hoped that by seeing all of my appeal points, it would be clearer which points ought to be abandoned, altered or new ones added.

As long as you attach your POPLA appeal as a .pdf file, there is no restriction on the number of words/characters. You shouldn't be looking to use the POPLA appeals portal (but note that when you rebut the PPCs evidence further in the process you must use the portal, with just 2,000 characters to play with.)

On a skim only of your headings:

1. OK, make sure that's spelled out clearly to POPLA - don't expect POPLA to go digging around the NtK to help you.
2. Grace periods have nothing to do with PoFA. By introducing grace periods, to which you weren't entitled beyond the first short period of reading the signs, you are giving the assessor ammunition to find against you.
3. OK - make them prove it to POPLA. Lots of cases have been won when the PPC either didn't have the written agreement (whether in reality, or they couldn't lay their hands on it, or were too lazy to dig it out and submit).
4. OK - use the template from the NEWBIES FAQ sticky, post #3, adapted to your case, but being careful, as you are proposing no Keeper Liability in your opening point, that you don't identify the driver.
5. OK - but you'll need to have your ducks in a row via good research and articulation of your argument to get the POPLA assessor to support your point.
6. OK - if you are proposing no Keeper Liability, we recommend this appeal point should follow immediately after it, so promote it up the batting order to point #2.
7. Filler point only. There has never been a POPLA decision in a motorist's favour on this. But it bulks out your appeal and gives the PPC something extra to respond to.
8. GPEOL? You are joking aren't you? Where did you find that? Give us the date of the thread you lifted it from?

Don't forget that the NEWBIES FAQ sticky, post #3 has everything you should need to put together a solid POPLA appeal.

But none of what we are advising on POPLA anymore has the confidence we once had of positive outcomes. POPLA has certainly slewed towards the parking companies over the past few months, so we just cannot provide any silver bullet - just saying so that expectations are managed.

That's it - good luck.