Online appeal form - Secure Parking Solutions Ltd

booter

Back again!  PoPLA have received an evidence pack and response from the operator.  The evidence pack contains lots of photos of my car (wish I'd washed it first!), lots of lovely pictures of signs, copy of the windscreen pcn and copy of my appeal/their response. Oddly not the "notice to driver" It also contains the following written response which I thought you may find interesting!

Appeal response:
We have reviewed the case again and considered the comments that you have made following the appeal.
It is the responsibility of the motorist to seek out parking conditions and to ensure their vehicle has been parked in accordance with the terms and conditions of the site to avoid receiving a Parking Charge Notice ("PCN”).
The vehicle was parked on the site in breach of the terms and conditions fo the car park. The signage installed on the site makes it clear that there are terms and conditions that apply when parking on the site as such, failure to observe and ascertain the terms is a fault that creates liability for the driver as the responsibility lies with the driver to ensure they are parking in accordance with the terms and conditions.
By remaining at the site, the motorist entered into a contract with the car park operator and agreed to the terms of the contract, this includes paying the charge of £100.00 in the event of non-payment or another contract being breached. The terms and conditions have been breached and so this notice has been issued correctly. if the driver does not agree with the terms and conditions that leave them liable, they should not have parked in the car park.
Response to appellant:
1) The notice was affixed to the windscreen on 19-08-2020 and the operator received an appeal 13-09-2020, which was before the notice to keeper had been sent out, as the appeal was received the notice to keeper was not sent as it was not required at this point.
2) Photographic evidence of an individual is not required for the parking charge.
3) Landowner contract is attached.
4) there are sufficient signs available at the car park as well as a sign next the the payment machine.
5) The vehicle was parked without a valid payment ticket on display, the accuracy of the machine is
not relevant to this as such not a valid defence against parking without a valid ticket.
As a member of BPA, we operate in accordance with the code of practice. I am sure you can appreciate that our team have to treat all customers who breach the terms and conditions of the car parks fairly and consistently in accordance with the BPA regulations.
From all the evidence gathered, I can confirm that the notice was correctly issued. The vehicle was in breach of the Terms and Conditions of the car park.
Under the principle in Vine v London Metropolitan Borough of Waltham, its immaterial if the appellant read our signage or not as long as the signage was in existence in the car park at the material time, which it was.
Our signage installed around the car park at the material time clearly states, amongst other things that any Motorist in breach of the RELEVANT terms and conditions stipulated therein will be liable to a charge of £100 or £60 if paid within 14 days. This is regardless of whether the motorist has read the signage or not, as the law will deem him or her to have read it. Vines v Waltham Forest LBC (2000)

booter

I have drafted a reply - can anyone let me know what they think please?

Reply to the Operator’s appeal response

1.       The second paragraph of the operator’s response states:  “It is the responsibility of the motorist to seek out parking conditions and to ensure their vehicle has been parked in accordance with the terms and conditions of the site to avoid receiving a Parking Charge Notice ("PCN”).”

 

It is the responsibility of the DRIVER not the motorist to seek out parking conditions.  This is confirmed in the operator’s third paragraph which states: “failure to observe and ascertain the terms is a fault that creates liability for the driver as the responsibility lies with the driver to ensure they are parking in accordance with the terms and conditions.”

 

2.       The fourth paragraph of the operator’s response states:  “By remaining at the site, the motorist entered into a contract with the car park operator and agreed to the terms of the contract, this includes paying the charge of £100.00 in the event of non-payment or another contract being breached. The terms and conditions have been breached and so this notice has been issued correctly. if the driver does not agree with the terms and conditions that leave them liable, they should not have parked in the car park.”

 

Using the term “motorist” is misleading.  The driver may or may not have entered into a contract, but NO DRIVER HAS BEEN IDENTIFIED.

 

3.       Point 1 of the Operators response states:  “The notice was affixed to the windscreen on 19-08-2020 and the operator received an appeal 13-09-2020, which was before the notice to keeper had been sent out, as the appeal was received the notice to keeper was not sent as it was not required at this point.”

 

Paragraph 4 of Schedule 4 of the Protection Of Freedoms Act 2012 states  that the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle only if “the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met”.

 

The first condition, under paragraph 5 is that the creditor—

 

(a)    has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

 

(b)   is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

 

NO DRIVER HAS BEEN IDENTIFIED

 

The second condition under Paragraph 6 states:

 

…..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.

 

(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.

 

NO SUCH NOTICE TO KEEPER WAS ISSUED

 

Therefore the strict conditions under the Protection of Freedoms Act have not been met as there was no notice to keeper.  As no driver has been identified, the operator cannot recover charges from myself as the keeper.

 

4.        Point 3 of the Operator ‘s response states that the landowner contract has been attached, but as the client details, signature and date on this contract have all been redacted, it is impossible to verify that there is a valid contract or even identify the landowner.

 

5.       Point 4 of the Operator’s response states that there are sufficient signs available at the car park.  I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the smaller font size of the £100, its colouring which makes is less prominent than other instructions/tariff (particularly on the tariff sign), and the fact that it does not appear at all at the entrance  - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

 

6.       Point 5 of the Operator’s response states that the accuracy of the ticket machine is not relevant.  I disagree – if the operator insists on relying upon their own terms and conditions, then, there would be the potential for many drivers to fall foul of these terms and conditions due to faulty equipment.  For example, if the printed ticket displayed the incorrect expiry time or an incorrect fee paid – technically both would fall foul of the operator’s terms and would potentially lead to incorrect issuing of a charge.

 

  
 

 

 

 

 

Le_Kirk

You do know that you only have 2,000 CHARACTERS to respond.  You have over 4,480.  You can cut it down by using bullet point rather then prose and removing unnecessary waffle.

Coupon-mad

You can't waste characters copying their words and writing full sentences! 

 THE NEWBIES THREAD TELLS YOU ALL THIS. 
 IT TELLS YOU WHAT TO DO AT COMMENTS STAGE AND THE 2000 CHARACTER RULE.

I can't see this has been said, a major omission for them - no evidence of the PCN, no evidence at all!

Oddly not the "notice to driver" 

booter

Coupon-mad said:

You can't waste characters copying their words and writing full sentences! 

 THE NEWBIES THREAD TELLS YOU ALL THIS. 
 IT TELLS YOU WHAT TO DO AT COMMENTS STAGE AND THE 2000 CHARACTER RULE.

I can't see this has been said, a major omission for them - no evidence of the PCN, no evidence at all!

Oddly not the "notice to driver" 

Thanks - sorry, I missed the bit about maximum characters allowed. Frustrating!

Yes, they have included a copy of the PCN in their evidence bundle - missed it amongst all the pics of the car.

booter

OK, so I've condensed it - that was hard!  Do you think this is ok?

·         It is the responsibility of the DRIVER not the motorist to seek out parking conditions.  The driver may or may not have entered into a contract, but NO DRIVER HAS BEEN IDENTIFIED.

 

·         The strict conditions contained within the Protection Of Freedoms Act 2012 have not been met as  NO DRIVER HAS BEEN IDENTIFIED and NO NOTICE TO KEEPER WAS ISSUED. (This second point has been confirmed by the Operator).

Therefore the Operator cannot recover charges from me as the keeper.

 

·         The landowner contract has been attached, but as the client details, signature and date on that contract have all been redacted, it is impossible to verify that there is a valid contract or even identify the landowner.

 

·         The signs on car park are inadequate in that the terms and conditions cannot be read by the driver upon entry to the car park nor is any penalty indicated.  Terms cannot be viewed from every parking space and the font of the penalty is of a different colour and size to that of other terms.

 

·         I believe the accuracy of the ticket machine is relevant.  If the operator insists on relying upon their own terms and conditions, drivers could potentially breach those terms due to faulty equipment.  E.g. if the ticket displayed the incorrect expiry time or incorrect fee – technically both may breach terms and would potentially lead to issuing of a charge.

 

  It is bullet pointed, but for some reason, this hasn't pasted?!  I make it less than 2000 characters?

Sorry, for some reason, I need my hand holding at the mo  

 

 

 

 

KeithP

Opening sentence...

 It is the responsibility of the DRIVER not the motorist ...

what does that mean? The driver is the motorist. 

booter

KeithP said:

Opening sentence...

 It is the responsibility of the DRIVER not the motorist ...

what does that mean? The driver is the motorist. 

The motorist could be the driver or keeper.  I've highlighted the difference

Redx

I agree with KeithP , the driver is the motorist , just remove the not the motorist bit , the driver had the responsibility , no driver identified , you are appealing as keeper , keeper has no liability

KeithP

booter said:

KeithP said:

Opening sentence...

 It is the responsibility of the DRIVER not the motorist ...

what does that mean? The driver is the motorist. 

The motorist could be the driver or keeper.  I've highlighted the difference

OK, if you wish.

But you are introducing ambiguity that is easily avoided by leaving out the words "not the motorist" from that sentence.