Parking Ticket - First Point of Contact - Mention permission of the shop ?

homi

Coupon-mad said:

Why do you think a NTK must 'mention the POFA'?  There's nothing in the Act that says the Act has to be mentioned, only that certain words must be used.

Sorry read it wrong ,  .. 

https://ibb.co/QvZtctd

https://ibb.co/PY4QxHQ

KeithP

I am not sure that this is precise enough...


Surely "date given" needs further qualification.
It should say something like: "28 days from the date on which this Notice is given".

As it stands, it simply isn't precise enough to be meaningful.

nosferatu1001

It has to be the day after the notice is given

homi

Used a few templates and couple of paragraphs from the thread ( please excuse if Ive made mistakes )   , will this be ok ? will embed the photos and save as a PDF file . 
I wanted to add a couple of points on the Sign which says that the car park was Warden Patrolled when it in fact the fine was issued by Camera / post but was not too sure of the wording . 

homi

I, the registered keeper of this vehicle, received a letter dated xxxx acting as a notice to the registered keeper. My appeal to the Operator – Park Watch – was submitted and acknowledged by the Operator on xxxxx and rejected via an email dated xxxxx .

 I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

-

1- Grace Period

2 – No Evidence of Landowner Authority

3 - Inadequately Painted Road markings

4 – Letter from the Store and proof of purchase

5 - Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

6 – The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge .

 

1 – Grace Period

 

1.     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.”

Finally, some 3 years ago 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: http://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governan ce/20150730_PDandS_Board_Action_Notes.pdf)

 

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 Euro Car Parks claim was 10 minutes 48 seconds) is not an unreasonable grace period, given:

 

a)    The site is not well lit and relies on nearby street lighting as its primary source of lighting.

b)    Visibility was hindered further as the site was in darkness at time of the visit – [ENTRY TIME] to [EXIT TIME] (hh:mm;ss).

c)    The lack of sufficient signage throughout the car park in question (noncompliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

d)    The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.

e)    The lengthiness of Euro Car Parks’ signage (in terms of word count) with a significant amount of text included in an “Important Notice” section (the title “Important Notice” clearly implying it is essential this must be carefully read and understood) in tiny red text at the bottom of the sign (see Figure 2).  

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 the darkness.

•        Decipher the confusing information being presented (one example being identifying which fees apply, as discussed further in section 2, page?? of this document).

•        Decide not to park and therefore enter into a contract.

•        Return to car and safely leave the car park.

2 - 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

3 –  Inadequately  Painted Road markings

The operator did not use correct road markings warning of entering a Private Car park  .

The rectangular bay the car was being loaded / photographed in was marked with a white line one side and another bay in front of it, which when cars are in the other bays looks no different and certainly not a ''no parking'' space. 

If it is not intended to be a bay but has a white line to the side and another bordering it at the front, then the operator must mark it to communicate that end one is not a bay.

They had ample opportunity to comply with the Consumer Rights Act 2015 and make it clear, given they had used both yellow and white paint all around it and only needed either hatchings in yellow and/or a warning word on the tarmac.

Fig3.1

4 – Letter from Store and Receipt

 

Fig 4.1

A signed letter from the store manager confirming that the driver was asked to pull up to the back of the store to collect / load  a bulky item on the 4/11.20.

Fig 4.2            

Receipt of the item purchased on the 4/11/20 at 14.02   

5 - Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way.  The photographs must refer to and confirm the incident which you claim was unauthorised.  A date and time stamp should be included on the photograph.  All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The PCN in question contains two close-up images of the vehicle . The first which shows the car with its reverse lights on so is clearly not parked and the other with the car boot open being loaded with an illegible date / time stamp .

Also Neither of these images clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

6. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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 keeper throughout (as I am entitled to be), and 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.''

KeithP

The first sentence of your item 6 starts by saying:

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon... 

...but where in your appeal is the bit that explains to PoPLA that the PPC has not complied with POFA so the driver's liability cannot be transferred to the keeper?

You even go on to say:

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.

You must demonstrate to PoPLA exactly how the PPC has failed to use POFA sufficiently well to transfer the driver's liability to the keeper.


Where is the very long signage section from the NEWBIES thread?
Are you going to include photographs of the signs and their settings? The Claimant will.

homi

Thanks ,  copied section 6 from another post ( should I remove it ?) .
I do have the photos which I will be embedding into the PDF file ,  I will add the long section about the signage but am limited to the amount of characters I can add on a post .
Is there anything I could add about the sign as it states that it is a Warden Patrolled Carpark with only a small image of a camera on the bottom and in tiny print APRN ?

Also it states " A Valid Permit must be Displayed for inspection at all times " in small print under the letter P , would this not imply that the cars are checked in person rather than camera ?  If the fine is not for having a displayed Permit how would they know by a camera that it did not have one displayed?

oznorHB — ImgBB (ibb.co)

Le_Kirk

I, the registered keeper of this vehicle, received a letter dated xxxx acting as a notice to the registered keeper. My appeal to the Operator – Park Watch – was submitted and acknowledged by the Operator on xxxxx and rejected via an email dated xxxxx .
 I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

Better as: -

I am the registered keeper of this vehicle and I received a letter dated xxxx acting as a notice to the registered keeper (NTK).  My appeal to the Operator – Park Watch – was submitted and acknowledged by the Operator on xxxxx and rejected via an email dated xxxxx .
 I contend that as the keeper I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

KeithP

homi said:

I will add the long section about the signage but am limited to the amount of characters I can add on a post .

I little bit of initiative is needed here.

How about splitting what you want to write over two posts?

homi

Still working on the draft ...  here is what  I have come with at the moment (no pictures at the moment inserted ) .