One Parking Solution and BHCC

Iguana_En_Fuego

I used to commute between Hove and London many years ago, and would park around that area prior to permit parking / restrictions being introduced, although Portslade was closer.

BTW, I am following the GXS Services @ Shoreham Port post over on PePiPoo, as a relative of the RK in the EP case received an invoice in the same car park, and as I did such a sterling job on EP case (thanks MSE Forum!), they have come to me for comfort.

Coupon-mad

I haven't seen the Shoreham Port case, as I've had no time to fit in pepipoo as much.

Mr_Mash

So I finally got my NTK through the post on the 11th April followed by a email reply with a rejection the 15th.

I've been away with work the last few weeks and only had time today to sit down and start my POPLA appeal.

I know Phillip Court is Council owned as I checked online and it even states in the 'Contravention Location' as Phillip Court BHCC.

Will draft up a POPLA appeal and post it here if anyone is able to advise or able to assist with previous appeals as Iguana has offered.

Coupon-mad

Here's one I did earlier about another BHCC block of flats in an OPS case; you can adapt this:


POPLA code: xxxxxxxxxx


1. NOT RELEVANT LAND
The registered keeper cannot be held liable because this is Brighton & Hove City Council (BHCC) owned land, which is defined in the POFA as 'not relevant land'. Regardless of the wording or date of any NTK, there can be NO keeper liability.

The POFA states:
''3(1)In this Schedule ''relevant land'' means any land (including land above or below ground level) other than - (a) a highway maintainable at the public expense (within the meaning of section 329(1) of the
Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is
subject to statutory control.

...2) In sub-paragraph (1)(b) — ''parking place'' has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act and ''traffic authority'' means each of the following—
(a)the Secretary of State;
(b)the Welsh Ministers;
(c)Transport for London;
(d)the Common Council of the City of London;
(e)the council of a county, county borough, London borough or district;
(f)a parish or community council''


This bay or space is indisputably, a ''parking place'' {with}...the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984: https://www.legislation.gov.uk/ukpga/1984/27/section/32
which says at 32(4)(b)''parking place'' means ''a place where vehicles, or vehicles of any class, may wait''.

Thus it is a parking place which is provided or controlled by a traffic authority. Nothing says it has to be a parking place that's the subject of any statute or Order. It just has to be ''provided by'' any Council. For the avoidance of doubt, BHCC is a 'traffic authority':

https://www.brighton-hove.gov.uk/content/parking-and-travel/parking/traffic-regulation-orders
where it says ''...the council, as the local highway authority...''

This is fully supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') whereby Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the victim registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.

Full report:

https://www.lgo.org.uk/assets/attach/4521/REPORT%2017004169%20KENT%20CC.pdf

The LGO's decision was about Council-owned land an is on all fours with this appeal in all facts and detail.

In that case, the finding was specifically about whether land that is under statutory control can have a contractual PCN enforced where the operator tries to transfer liability to the registered keeper - and they cannot. There is no mechanism to hold a registered keeper liable, and 'private' parking tickets cannot be issued on this basis on such land.

To use the Ombudsman's word, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, it is ''irrelevant'' whether or not the landowner is exercising its statutory control powers, or not.

The opinion of POPLA's so-called 'Sector Expert'(sic) is not worth seeking (never is) and a biased person working in the private parking sector or in some way connected to the BPA is not in a position to disagree with a relevant finding of facts about keeper liability, from the LGO, especially given that POPLA is part of the same service. The appeal is won on this point alone as the driver has never been identified, but please read on for more points of appeal if needed:


2. ILLEGIBLE SIGN, NOT AT THE PARKING BAYS
The sign is illegible and placed well away from the bays, in fact in the online photo evidence I can see just one white sign high on a wall, near a pavement and doorway to one flat; a walking route not taken by the driver.

Why set the single sign that far back, not even where a person would walk? OPS have failed to put any sign next to the visitor bays, where visitors by definition will not be familiar with any terms, nor expecting any onerous penalty at a residential car park

Signs must meet the ‘red hand rule’ for prominence and position and large lettering, which this pale sign does not:

PICTURE REDACTED BUT YOU CAN GET A SIMILAR PALE ILLEGIBLE ONE, I EXPECT!

It looks to be a sign possibly setting out the flat numbers, or info about resident bins or other rules relating to the building itself, as it's not adjacent to the parking area used by visitors, who in good faith would choose an unsigned bay. No other terms are discernible. There are no signs at the bays at all and therefore no contract was agreed by the driver, who is unidentified.


3. 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. 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 parking charge cannot be enforced against a keeper without a valid NTK.

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.''


4. NO LANDOWNER AUTHORITY
OPS do not own this land, BHCC do. I require OPS to show their landowner contract for this site. Even if OPS produce a contract or Witness Statement, they will merely confirm that this is Council land, and so not 'relevant land'.

Even if POPLA think that woeful sign is as clear as the plentiful/large signs in Beavis(!), OPS could only recover monies from a known driver. POFA cannot apply, given that 'adequate notice' is also a statutory POFA requirement and given the status of the land.

It makes no difference if OPS have served a NTK, they still cannot transfer liability to the keeper, where the driver is not identified.

END

Mr_Mash

Thank you @Coupon-Mad this has been most helpful in compiling my evidence. The online form for POPLA doesn't have enough space so I will be posting my appeal once finished.

A final question and a bit of a reach...In the evidence pack from OPS, the number plate is shown close up, but in the image of the car in the space, the flash obscures the plate. Is there any grounds for unclear evidence there? A bit of a reach I know but just another point to make...

The_Deep

They are obviously trying to scam you so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Coupon-mad

Mr_Mash wrote: »

Thank you @Coupon-Mad this has been most helpful in compiling my evidence. The online form for POPLA doesn't have enough space so I will be posting my appeal once finished.

No, you won't, not if this is your actual POPLA appeal being submitted.

You've completely missed the advice in the NEWBIES thread about POPLA! Not a single person here posts stuff to POPLA, and nor do they try to fit 2000 words in.

What do you mean evidence pack? You are not already at POPLA stage are you, with an appeal already in, and evidence back to comment on?

Mr_Mash

Coupon-mad wrote: »

No, you won't, not if this is your actual POPLA appeal being submitted.

You've completely missed the advice in the NEWBIES thread about POPLA! Not a single person here posts stuff to POPLA, and nor do they try to fit 2000 words in.

What do you mean evidence pack? You are not already at POPLA stage are you, with an appeal already in, and evidence back to comment on?

Apologies Coupon Mad, I missed the section on submitting the document by creating a PDF, I have now done this and will upload along with my photos and be sure to embed links/ photos.

By evidence pack I mean the photos OPS uploaded to their site when I completed the first appeal directly to OPS. These show the photos taken by the attendant in the dark with a flash, clearly illuminating signs which are otherwise unrecognisable. They also show the car in the space but the reg plate is obscured by the flash, with a separate photo of the reg close up, is there a point to be made here?

I am currently on the first stage of POPLA.

Mr_Mash

Fantastic email from POPLA this morning stating OPS has withdrawn and my appeal was succesful. Thank you to everyone for your help!

Coupon-mad

Yay, glad to help! :T