CareParking - Park and ride PCN

Tyrannosaurus

After much reading back and forth I'm now starting my own thread seeking assistance please.
The driver returned to the car in Ladywell, a Manchester Metrolink free park and ride finding a PCN stuck to the windscreen. It was timestamped 16/11/2018 08:58.
The issue reason is "abused patron parking". It reads is a Parking Charge of £100.00
The Parking Company is care parking.
The strange thing is that it is a free park and ride. We're at a loss as to what the infraction was: parked inside the marked bay very straight, parked during tram running hours as it was a work commute without overnight stay.

After much reading this forum, an email complaint was sent to Transport for Greater Manchester who replied to follow the appeal procedure with the PC. No problem there, that was for good measure.

On day 27 an appeal was entered in the PC's website as a registered on the 12/12/2018 with the template only changing the particulars of the event and mentioned we're not naming the driver.
A NTK was received in the post dated 18/12/2018. It quotes the notice is given under Paragraph 8(2)(f) of schedule 4 of the PoFA 2012.
On 16/01/2019 an email was received with the appeal response in PDF, despite the appeal explicitly in the template requires postal correspondence, with a POPLA code.
I am now at the point where, after reading the last posts from 2018/2019 in both individual threads and the POPLA Decisions area, I'm still confused.
I have looked up who owns the land and is TfGM. I wrote to them again and they confirmed it.
Do I now appeal to POPLA using the "BYLAWS Land and POFA2012 does not apply"?.
This up to date thread makes me unclear - (new user, cant insert links , thread =5941683)

Thanks in advance.

Coupon-mad

Do I now appeal to POPLA using the "BYLAWS Land and POFA2012 does not apply"?

Yes, and the usual other templates and stating that it's unclear what the alleged contravention even was. Show us your draft, we are happy to check them.

nosferatu1001

Yes, also point out that the vehicle was not parked in contravention of any listed term, it was during tram hours etc, and the operator has given no valid reason for issue.

The_Deep

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

Tyrannosaurus

Ok. Will draft and run past you. Thanks.

Tyrannosaurus

Would you good souls advice me please if this draft is Ok or what else it needs?.
Also, if is too specific for the forum, please let me know so I can remove it quickly.
Thank you.
::::::::::
Dear Sir or Madam,

In reference to PCN XXXXXXX issued by the operator Care Parking on 16/11/2018. The car was parked in the Ladywell Metrolink Stop Park, Eccles New Road, Ladywell, Greater Manchester M50 1AW, owned by Transport for Greater Manchester.

An appeal to Care Parking was made and rejected. The POPLA reference is XXXXXXXX.
I contend that the parking notice was issued wrongly and unlawfully for the following reasons:

1. The operator has not shown that the individual who it is pursuing is in fact the driver
2. Railway Land Is Not ‘Relevant Land’
3. No evidence of Landowner Authority
4. There is no clear and specific identification of the alleged parking violation nor evidence of it

1. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the operator 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.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

2. Railway Land Is Not ‘Relevant Land’
Under Schedule 4 of PoFA 2012, section 1, it states that:

“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under PoFA does not apply, and therefore Care Parking are unable to pursue the registered keeper in lieu of the driver’s details.

3. 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 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”

4. There is no clear and specific identification of the alleged parking violation, nor evidence of it.
The Parking Charge Notification reads “Issue Reason: Abused Patron Parking”. The vehicle was parked on private property in contravention of the site parking restrictions as displayed on the contractual signage in place.
Looking at the signs (Figure 1), the parking restrictions are:
This car part is for use of Metrolink Passengers only.
A parking charge will be issued when:
- Parking in a disabled bay without displaying a valid disabled badge
- Obstructive parking, including outside of a marked parking bay or any unauthorised use of a parking space
- Parking outside of tram service hours except Friday and Saturday nights. See separate notices for Overnight Parking Conditions
- No taxi parking unless in designated collection /drop off service
- Parking on this site whilst not a patron of the Metrolink service

Figure 1
Looking at the photos used by Care Parking as evidence of the patron abuse, it is clearly showing the vehicle parked in a marked bay and within its marked boundaries (Figures 2 -5)

Figure 2
Figure 3
Figure 4
Figure 5

In light of the lack of a clear explanation of what the “abuse of patron parking” and its evidence, I believe this Parking Charge Notice is invalid.

KeithP

I would think it best that the "The operator has not shown that the individual who it is pursuing is in fact the driver" point follows the "Railway Land Is Not ‘Relevant Land’" point.

The reasoning being that having pointed out that they cannot use POFA to transfer liability to the keeper, they then need to chase the driver. You then go on to show how that too will fail.

What about the signs? Are they all in order?
It'll be surprising if they are.
Why not include the signage section from post #3 of the NEWBIES too.

Redx

I would not be talking about it being "unlawfully" issued , because that implies a law has been broken , so more like "incorrectly issued"

there are plenty of recent METROLINK threads that have been successful, so ensure you are basing yours on one of them

so anything including or since post #9 in this one

https://forums.moneysavingexpert.com/discussion/5676540/care-parking-metrolink-pcn

Tyrannosaurus

Ok I will rewrite with your inputs. Thanks.

Tyrannosaurus

Hi. I've read a few times those linked previous appeals and I'm thinking not to use the signage point, on the most part because I'm using a photo of the sign to show that there is no contravention to the stipulated restrictions. If follows that I have read them without problem, providing them with an easy rebuttal. Would that be correct?
I've added the point of no breach of bylaw and re-ordered as suggested. Is this better?

Dear Sir or Madam,

In reference to PCN XXXXX issued by the operator Care Parking on 16/11/2018. The car was parked in the Ladywell Metrolink Stop Park, Eccles New Road, Ladywell, Greater Manchester M50 1AW, owned by Transport for Greater Manchester.

An appeal to Care Parking was made and rejected. The POPLA reference is XXXXX.
I contend that the parking notice was incorrectly issued for the following reasons:

1.Railway Land Is Not ‘Relevant Land’
2. The operator has not shown that the individual who it is pursuing is in fact the driver
3. No evidence of Landowner Authority
4. There is no breach of Railway Bylaw
5. There is no clear and specific identification of the alleged parking violation nor evidence of it

1. Railway Land Is Not ‘Relevant Land’
Under Schedule 4 of PoFA 2012, section 1, it states that:

“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under PoFA does not apply, and therefore Care Parking are unable to pursue the registered keeper in lieu of the driver’s details.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the operator 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.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3. 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 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”

4. There is no breach of Railway bylaw
There is no railway byelaw known as: Abuse of Patron Parking'.
If Care Parking attempt to hold me liable under byelaws, despite the fact it's not relevant land (no PoFA keeper liability possible) then breach of byelaws, too, is denied. Railway Byelaw 14 (2) says specifically: ''No person in charge of any motor vehicle, bicycle or other conveyance shall leave or place it on any part of the railway: (i) in a manner or place where it may cause an obstruction or hindrance to an Operator or any person using the railway; or
(ii) otherwise than in accordance with any instructions issued by or on behalf of an Operator or an authorised person.
.
As described in 5 below, the car was parked inside a marked bay with no con travention of any contractual term.

5. There is no clear and specific identification of the alleged parking violation, nor evidence of it.
The Parking Charge Notification reads “Issue Reason: Abused Patron Parking”. The vehicle was parked on private property in contravention of the site parking restrictions as displayed on the contractual signage in place.
Looking at the signs (Figure 1), the parking restrictions are:
This car part is for use of Metrolink Passengers only.
A parking charge will be issued when:
- Parking in a disabled bay without displaying a valid disabled badge
- Obstructive parking, including outside of a marked parking bay or any unauthorised use of a parking space
- Parking outside of tram service hours except Friday and Saturday nights. See separate notices for Overnight Parking Conditions
- No taxi parking unless in designated collection /drop off service
- Parking on this site whilst not a patron of the Metrolink service

Figure 1
Looking at the photos used by Care Parking as evidence of the patron abuse, it is clearly showing the vehicle parked in a marked bay and within its marked boundaries (Figures 2 -5)
Figure 2
Figure 3
Figure 4
Figure 5

In light of the lack of a clear explanation of what the “abuse of patron parking” and its evidence, I believe this Parking Charge Notice is invalid.

Redx

bearing in mind your opening comment above, it seems to me that this appeal is based on POFA not being relevant and so its a KEEPER based appeal, so not about what the driver may or may not have done


therefore, the keeper can complain about signage on the basis that they have checked it after the fact, so gone back at a later date to see for themselves, so that is the angle for any signage issues, from a KEEPERS perspective, at a later date


so SIGNAGE is ALWAYS a key point in any appeal or defence, because you as keeper are allowed to gather evidence AFTER THE FACT



capiche ?