PCN (NW) Limited - Notice to Keeper Incorrect, Signage Forbidding

Epideme

Received a Notice to Keeper through the post.  Shows my vehicle parked, with the sign clearly visible above and to the left of the the vehicle.  Parking location was previously free parking for two stores that have closed and the sign has been replaced with a standard IPC one that states you must have a valid permit to park (without any means of how to obtain one, nor any indications that anyone has one).  Proposed response is below the letter.

Updated letter in comments

Coupon-mad

You seem to have been reading the truly awful MSE Guide to appealing a PCN.  Bin it.

The argument that there is 'no loss' went out in 2015 in the Supreme court case of ParkingEye v Beavis, and we've told MSE Towers about this time and again and asked them to remove that and improve their guide:  

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

Epideme

Coupon-mad said:

You seem to have been reading the truly awful MSE Guide to appealing a PCN.  Bin it.

The argument that there is 'no loss' went out in 2015 in the Supreme court case of ParkingEye v Beavis, and we've told MSE Towers about this time and again and asked them to remove that and improve their guide:  

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

OK, so your suggestion is to remove the below paragraph?
"·        The charge is disproportionate and not a genuine pre-estimate of loss

o   The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.  The land in question is a carpark for two disused shops – one of which all drivers of the car have used previously, prior to it being boarded up.  In this case, the £100 charge being asked for far exceeds the cost to the landowner of £0.  Even had a contract been entered into, I therefore feel the amount you have asked for is excessive."

Coupon-mad

No.  Bin the whole thing.

The NEWBIES PLEASE READ THESE FAQS FIRST' Announcement (pinned at the top) thread gives you the correct approach and appeal template.

But appeal is not PLAN A anyway.  Please read the newbies thread for PLAN A.  That's why it's in capitals at the top of this board's thread list.

Epideme

Coupon-mad said:

No.  Bin the whole thing.

The NEWBIES PLEASE READ THESE FAQS FIRST' Announcement (pinned at the top) thread gives you the correct approach and appeal template.

But appeal is not PLAN A anyway.  Please read the newbies thread for PLAN A.  That's why it's in capitals at the top of this board's thread list.

I appreciate that the above is not the one you have put in the pinned FAQ; much of it has been written by me and is not templated, though there was a template I used initially and some parts have been recycled from elsewhere.

However, this is an IPC firm (not BPA), the Notice to Keeper was sent within 14 days as the first contact and the Notice to Keeper is incorrect.  The Landowner (plan A) is not known, and both stores on the site have closed.  I appreciate that my approach involves posting (and the NTK would still be invalid if they failed to acknowledge it), but the cheque being cashed would confirm that full and final settlement had been agreed.

You've asked me to bin the whole thing; have you actually read it all or just the bullet point title that came from the template you correctly identified?

Coupon-mad

I did read it.  Issuing a late or non-POFA NTK isn't unlawful or illegal and the IAS kangaroo court won't consider a point about forbidding terms.  

Having said that, you will likely lose any IAS appeal, whatever you send, including stuff from the Newbies thread.  As long as you know that and won't be paying anyway when you lose, it is all fine (except 'no GPEOL' which paints an appellant as a victim worth pursuing, who is unprepared and has no idea that ParkingEye v Beavis killed that off 7 years ago).

Epideme

Coupon-mad said:

I did read it.  Issuing a late or non-POFA NTK isn't unlawful or illegal and the IAS kangaroo court won't consider a point about forbidding terms.  

Having said that, you will likely lose any IAS appeal, whatever you send, including stuff from the Newbies thread.  As long as you know that and won't be paying anyway when you lose, it is all fine (except 'no GPEOL' which paints an appellant as a victim worth pursuing, who is unprepared and has no idea that ParkingEye v Beavis killed that off 7 years ago).

Ok - yes the "unlawful/illegal" towards the beginning came from that template again.  This isn't an appeal per see, but I fully expect the IPC operator to deny it and won't bother with an IAS appeal, who I have never seen any examples of upholding an appeal.  I can appreciate removing the GPEOL paragraph.  Should court proceedings be threatened, the cheque offer provides a means to show I've been reasonable or that they've already settled.  Thus it's either argued at court or goes away for £1.

I guess one real question is whether I should wait until after they would exceed the 14 days to correspond as they could still potentially issue a POFA compliant NTK if I respond too quickly; after that period the NTK being non-POFA compliant would mean that they should lose provided the driver is not identified.

Coupon-mad

Can you reply in the thread about Feedback to the MSE Guide, by MSE_JC (top of the board) and show him/her where this rogue template is (assuming it's part if an MSE Article or guide?).  It needs removing.

I would wait till after day 14, yes.

Epideme

Amended letter below:

Dear Sir or Madam,

Re PCN number: [PCN number]

Vehicle registration number: [Reg]

I – as registered keeper – have been issued with an invoice described as “PARKING CHARGE NOTICE TO REGISTERED KEEPER” on [date five days ago], in relation to my registered vehicle being parked on [date 7 days ago] and received [date 1 day ago] as the first communication.  I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and there will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle.

Please note that the notice to keeper is incorrect and does not comply with Schedule 4 of the Protection of Freedom Act 2012

• In contravention of Schedule 4 of the Protection of Freedom Act, Section 8 (2) e, the Notice to Keeper must “state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper”.  Your Notice to Keeper does not (https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted)
• As the POFA 2012 has not been complied with, there is no associated right within the POFA Act to pursue the Registered Keeper
• Further, this is a breach of the IPC Code of Practice as the Notice to Keeper is invalid and you imply that you have the right to recover unpaid parking charges from the Registered Keeper in the event of the Registered Keeper failing to provide the driver’s name and address despite not having stated that you do not know the driver’s name and address. (See Part C, IPC Code of Practice 1.2 and 1.3, 5.1 (f)  https://theipc.info/resources/brandings/brandmedia_2_Code-of-Practice.pdf)
• Despite stating “the vehicle was recorded on camera”, it is not an ANPR case and as such no notice to driver was given (in breach of section 2.1 of the IPC Code of Practice).  However - as you have chosen to go down the route of section 1 by applying for Keeper Liability from the start - whilst there are therefore multiple breaches in section 3.1 (including (j), which is the opening part of this point) these are rendered irrelevant by the incorrect Notice to Keeper.

In addition to the uncompliant Notice to Keeper, the signage in the carpark is of a “forbidding nature” and no contract can therefore be deemed drawn

• The car park is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. To claim that a contract to park was created when it is specifically forbidden is perverse. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
• Please provide full details of how many valid permits have been issued (excluding any enforcement officials), and how many were active prior to the Date of Parking Event.  Please also supply full details of how such valid permits may be obtained, along with details of any signage that provides such details.  Please also provide full details of the landowner in order that I may lodge a complaint with them.
• Additionally, the IPC code of practice (1.5) states “You must apply for keeper details only where you have ‘reasonable cause’ to do so in accordance with regulation 27(1)(e) of the Road Vehicles (Registration and Licensing) Regulations 2002.” – as there is no option to make payment prior to parking, and only signage of a “forbidding nature” is in place there was no ‘reasonable cause’ for PCN (NW) Limited to apply
• If instead you were applying on behalf of the landowner this would be in breach of the IPC code of Practice (1.7) “You must not apply for keeper details on behalf of any third party company or individual who is not a member of an Accredited Trade Association.”

Further, the amount claimed is disproportionate, the government has – in the Parking (Code of Practice) Act 2019 and the Secretary of State’s published Private Parking Code of Practice on 7th February 2022 – laid out that all operators must change their charges to a maximum cap for a “Standalone private car park or publicly accessible customer car park” to £50 by the end of 2023, with a 50% discount offered if paid within 14 days of receipt; your failure to implement this earlier in your signage and notices should not benefit you, and it is doubtful any court would rule in your favour for the requested amount, even were the Notice to Keeper Correct and the matter deemed to be one you had a ‘reasonable cause’ to pursue.  (https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice)

As registered keeper, I am not prepared to enter into protracted correspondence, nor will I deal with any purported ‘debt collection agencies’ or ‘solicitors’ acting on your behalf, save to respond to any court proceedings, which will be defended vigorously and for which costs will be sought.

Ideally, the “Parking Charge Notice to Keeper” should therefore be cancelled.  However, as the photographs provided clearly show that our driver parked in a car parking space on the landowner’s land – and despite the landowner offering no means by which to make payment – it is reasonable to expect that they could have charged the same as the neighbouring Parking Eye car park, i.e. £1.  I therefore enclose a cheque for £1; should the cheque be cashed it will be deemed to be accepted in full and final settlement.  Alternatively, the cheque should be returned along with the cancellation of the PCN, or a letter explaining why you consider the details above not to have caused the PCN to be invalid and your rejection of the offer which will be brought up at any subsequent court proceedings.

Yours faithfully,

Coupon-mad

Remove this as it makes no sense "In case this is not the point".

And this does not follow.  It is not reasonable to say this:

 it is reasonable to expect that they could have charged the same as the neighbouring Parking Eye car park, i.e. £1.  

And remove the stuff about the charge being disproportionate and the stuff about the lowest £50 rate in the new Code, because it hasn't been implemented yet and is not retrospective.  i.e it is irrelevant.

Epideme

Coupon-mad said:

Remove this as it makes no sense "In case this is not the point".

Yes, I can remove that without it altering the remainder of the paragraph - now done.

Coupon-mad said:

And this does not follow.  It is not reasonable to say this:

 it is reasonable to expect that they could have charged the same as the neighbouring Parking Eye car park, i.e. £1.  

And remove the stuff about the charge being disproportionate and the stuff about the lowest £50 rate in the new Code, because it hasn't been implemented yet and is not retrospective.  i.e it is irrelevant.

I disagree.  They may well give it no weight and/or ignore it (but then they will do that with all aspects of an appeal), but that doesn't make it "not reasonable to say this" - the facts are that:
a) if they were charging, it would likely be on the basis of comparable nearby sites - there are two nearly adjoining it, one the Parking Eye one at £1 for one hour and the other the council one at £1.50 for one hour.  Charging more would be unlikely to get customers, hence it is a reasonable comparison. 
b) the new code has already been introduced but has not yet fully taken effect - the code has been implemented but gives them discretion about when to change signs etc up to the end of 2023.

In both instances, a judge ruling on it would be able to give weight to or ignore both as they chose; including will not affect their treatment of the letter, though does give the basis for the cheque, which then establishes that I have acted reasonably in offering, or provides an acceptance that it is closed in full and final settlement.