Parking ticket gone to appeal

brazo

Hi all

Was hoping for a little help. I have used the free advice thus far in the stickies but have come a little er.. unstuck!

A parking charge notice was received in the post (notice to keeper) from vehicle control services for an overstay of 22 minutes in a private shopping centre car park (3 hours was the limit). A ticket wasn't placed on the vehicle. I contested the ticket through the myparking online portal with the reason that they were too late (more than 14 days) to send a notice to keeper. I then received the following further information required (italics):

Please note that responsibility for this Charge lies with the driver of the vehicle at the time the parking contravention was observed. However, we are unable to ascertain who the driver was on the date in questions from the information given within your appeal. In order for us to process your appeal correctly, please follow the instructions below: 1. Notify the driver of the vehicle that they will need to appeal to us directly, including their FULL NAME (Forename and Surname) and a valid FULL SERVICEABLE HOME ADDRESS within 14 days. 2. If you are representing the driver we require a signed and dated statement from the driver of the vehicle confirming that you are authorised to appeal on his/her behalf; this needs to be an original signature and not a photocopy or a stamp. The statement MUST contain the drivers FULL NAME (Forename and Surname) and a valid FULL SERVICEABLE HOME ADDRESS. Please ensure that correspondence is submitted through the portal www.myparkingcharge.co.uk in order to correctly adhere with the appeals process. OR 3. Pay the PCN. Payments can be made online at www.myparkingcharge.co.uk by following the links for "Pay Now", or over the phone by calling 0845 226 9138 and using a valid Credit or Debit Card to make payment. It is your responsibility to ensure that payment is received within our office by the date specified.

I responded but did not tell them who was driving the vehicle at the time but said that I am not representing the driver. A further response in italics was received below:

We refer to your appeal in respect of the above Charge Notice (CN) received on #####.  Having considered the points you have raised and reviewed our records, we are unable to accept your appeal. Our main reason(s) for this decision are as follows: The signs at the car park make it clear that a maximum period of parking is allowed for all vehicles using the car park, giving clear notice that the land is private property and that a Charge of £100 will be levied if vehicles park outside of the Terms and Conditions displayed. It is the motorist's responsibility to ensure that they return to their vehicle and remove it from the car park before the maximum period of parking permitted expires; in this case the above detailed vehicle remained for longer than the period permitted and you became liable for the Charge advertised. In your appeal it is unclear who the driver was when your vehicle was seen to be parked in the car park. You state that our Notice is not compliant with the Protection Of Freedoms Act (POFA) 2012 on the Notice issued to you; however we have not cited POFA 2012 nor stated that you are liable for the Charge as the vehicle keeper. It is important we highlight that we will continue to pursue this matter on the reasonable assumption that you were the driver of the vehicle on the date in question until information/evidence to the contrary is provided. In respect of your comments regarding no Notice having been affixed to your vehicle. The car park is managed by ANPR (Automatic Number Plate Recognition) cameras which take photographs of vehicles registration numbers entering and exiting the car park. Any vehicle that remains in the car park for longer that the period permitted is issued a Charge Notice by post. We maintain that the signs on this site meet the requirements set by the International Parking Community (IPC) Code of Practice. The signs are large, prominent and legible ,so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so. It can never be a defence to a claim in contract law to say, "I did not read the terms", so long as the existence of those terms is reasonably advertised. We have fully reviewed this case and we are satisfied that the Charge Notice was correctly issued. We are unable to accept the mitigating circumstances raised in your representations, your appeal is therefore rejected and the charge will stand; photographic evidence which supports this can be viewed at www.myparkingcharge.co.uk What you should do next - Either:

Appeal or Pay the fine!

Am I right in thinking they are trying this on? They have previously said they dont know who the driver is but acknowledge it is their responsibility? Many thanks in advance!

Fruitcake

What happened when the keeper complained to the landowner? That is always Plan A.

Originally the advice here on this forum was not to make an IAS appeal, but if the keeper was not the driver, then it is worth doing so. Do not miss the appeal deadline.

Post your draft here for checking before you submit it. Note that there are no appeal templates for the kangaroo court IAS.

Where did the alleged event occur? It may have cropped up here before.

Has the keeper complained to their MP yet? That should always be done.

Coupon-mad

They are pretending that a keeper can only appeal when the NTK arrives. That's the standard IPC line.  Shockingly, the IPC and their mates like to say that keepers can't appeal windscreen PCNs.  They are on record as saying that in response to another complaint about Alliance parking who play the same 'you can't appeal' trick.

This is the sort of sharp practice that has caused the Govt to step in and regulate the industry with a new Code of Practice this February (not fully implemented till the end of 2023 though).

So wait for the NTK and meanwhile get the landowner to cancel it, which they can, probably if they pay VCS a tenner.

So, make it your mission to get this cancelled by complaint instead.

Contact the land agent and complain about this crap. Politely ask them to check their contract with VCS with a view to cancelling it to dump this aggressive firm, but also, if they can cancel this PCN as a goodwill gesture, to get this horrifically aggressive ex-clamper off your back, you'll cover the tenner admin that a typical VCS contract charges.

brazo

Thankyou both

I'm going to go down the IAS route but will post my draft response here first! Thanks again. 

KeithP

@brazo, did you notice that both the people who had replied to you suggested complaining to the landowner?

Fruitcake said:

What happened when the keeper complained to the landowner? That is always Plan A.

Coupon-mad said:

So wait for the NTK and meanwhile get the landowner to cancel it, which they can, probably if they pay VCS a tenner.

So, make it your mission to get this cancelled by complaint instead.

You also seem to have missed @Fruitcake's question.

Umkomaas

brazo said:

Thankyou both

I'm going to go down the IAS route but will post my draft response here first! Thanks again. 

Chances of winning an appeal at the IAS is 4%.  I think a landowner complaint has better odds. 

brazo

KeithP said:

@brazo, did you notice that both the people who had replied to you suggested complaining to the landowner?

Fruitcake said:

What happened when the keeper complained to the landowner? That is always Plan A.

Coupon-mad said:

So wait for the NTK and meanwhile get the landowner to cancel it, which they can, probably if they pay VCS a tenner.

So, make it your mission to get this cancelled by complaint instead.

You also seem to have missed @Fruitcake's question.

Apologies. To be honest I don't fully understand that route or why it might work? And i'm also out of time as appeal end date is Monday?

In terms of the appeal, they have already said they don't know who was driving, I haven't told them and they are out of time on their notice to keeper I was thinking that would have more legs but happy to learn! That's why i'm here

brazo

Suggested text for appeal and yes I'll also do the land owner thing concurrently.

Following the receipt of an invoice by Vehicle Control Services which I dispute in full I have included below 2 paragraphs from them which are relevant.

Please note that responsibility for this Charge lies with the driver of the vehicle at the time the parking contravention was observed. However, we are unable to ascertain who the driver was on the date in questions from the information given within your appeal.

In your appeal it is unclear who the driver was when your vehicle was seen to be parked in the car park. You state that our Notice is not compliant with the Protection Of Freedoms Act (POFA) 2012 on the Notice issued to you; however we have not cited POFA 2012 nor stated that you are liable for the Charge as the vehicle keeper. It is important we highlight that we will continue to pursue this matter on the reasonable assumption that you were the driver of the vehicle on the date in question until information/evidence to the contrary is provided.

These paragraphs taken from letters sent by Vehicle Control Services are clearly saying the vehicle keeper is not responsible but the driver at the time is responsible.  They have assumed the driver was myself.

I understand that I am not obliged to disclose who the driver was, and I won’t be. No assumption can be made who the driver was, but I can confirm it wasn’t myself. Therefore, I am neither liable as a driver or the keeper of the vehicle and I have also made a complaint to the landowners of the car park following the continued harassment of myself by Vehicle Control Services to ensure this invoice is cancelled.   

Coupon-mad

You could add a quote from the new statutory incoming Code of Practice, where the Govt state that a keeper must never be assumed to be the driver.

Tell them you will use that as evidence in court.  Moreover, the same legal fact was confirmed by parking expert barrister and Lead Adjudicator for PATAS and POPLA, Henry Greenslade, as long ago as 2015 in an official report in an article about POFA and Keeper liability.

Further you can remind VCS that they've lost this argument in court many times including in VCS v Quayle and also on appeal, in Excel v Smith, which involved their sister company and remains a persuasive decision from a Circuit Judge, HHJ Smith, which ended any possibility of pretending a keeper can be 'presumed' to be the driver, outside of the POFA.

That legal route was open to them but they chose not to use it, so VCS have forfeited any 'right' they might think they had, to pursue this keeper.

brazo

Coupon-mad said:

You could add a quote from the new statutory incoming Code of Practice, where the Govt state that a keeper must never assumed to be the driver.

Tell them you will use that as evidence in court.  Moreover, the same legal fact was confirmed by parking expert barrister and Lead Adjudicator for PATAS and POPLA, Henry Greenslade, as long ago as 2015 in an official report in an article about POFA and Keeper liability.

Further you can remind VCS that they've lost this argument in court many times including in VCS v Quayle and also on appeal, in Excel v Smith, which involved their sister company and remains a persuasive decision from a Circuit Judge, HHJ Smith, which ended any possibility of pretending a keeper can be 'presumed' to be the driver, outside of the POFA.

That legal route was open to them but they chose not to use it, so VCS have forfeited any 'right' they might think they had, to pursue this keeper.

Many thanks I will do that!

brazo

So I've had a response below in italics from VCS as part of my appeal. They have added nothing more and are purely working on an assumption (which they clearly state they are) that the keeper was the driver. Any thoughts before I send it for arbitration?

The Operator Made The Following Comments...

1. The ######## Car Park is private land which motorists are allowed to enter to park their vehicle provided that they abide by any displayed conditions of parking.

2. Site signage states ‘Maximum Stay 2 Hours Parking Commencing on Entry' and ‘Any Vehicle/Driver entering this car park is subject to and agrees in full to the Terms & Conditions. Site photographs supplied show that these signs can be seen throughout the car park.

3. Management of the car park is conducted by ANPR (Automatic Number Plate Recognition) cameras, which take photographs of vehicle registration numbers as vehicles enter and leave the car park. The VRM images are reviewed and any vehicle that remains on the car park for over 2 hours is issued a Parking Charge Notice (PCN).

4. The ANPR cameras record the time of a vehicle's entry and exit from the car park and the images supplied show that the appellant's vehicle entered the car park at ###and exited at ##, a parking duration of ## ##

5. The appellant exceeded the maximum period of stay by ###

6. When entering this private land it is solely the responsibility of the motorist to familiarise themselves with, and to fully comply with the contractual terms and conditions of parking. The supplied site photographs show the amount of signage in this car park. The signage clearly states ‘Maximum Stay 2 Hours Parking Commencing on Entry' and ‘Any Vehicle/Driver entering this car park is subject to and agrees in full to the Terms & Conditions.

7. Site photographs supplied, confirm that signs can be observed at the entrance and throughout the car park. The adjudicator will note that this car park and its VCS signage, including the size, wording and positioning of the signage have been audited by the IPC, have passed audit and that the signage, including its wording and positioning complies with the IPC Code of Practice. We maintain that at the time of the parking event the terms and conditions were sufficiently brought to the attention of the appellant.

8. We are employed by our client to operate the car park on their behalf. The maximum stay period is set by the client and enforced by ourselves. The reason for this maximum stay is to ensure that motorists do not abuse the parking facilities offered and to ensure spaces are readily available for new shoppers, encouraging a steady customer rotation. As such, the contravention which occurred was to the probable detriment of the affiliated outlets.

9. In their initial appeal the appellant states that they are the keeper of the vehicle and that the Charge Notice sent to them, was received outside the time scales set out in the Protection of Freedoms Act (PoFA) 2012. However, as was explained in correspondence, we have not cited PoFA 2012 nor stated that the appellant was liable for the Charge as the vehicle keeper.

10. In this case, citing the case of Elliott v Loake 1982; we are relying on the presumption, on the balance of probability, that the appellant was the driver of the vehicle on the date in question as no evidence to the contrary has been provided. Operators are not required to use the keeper liability provisions within the Protection of Freedoms Act 2012 on land to which it applies. These provisions complement the common-law position which may be used to establish liability for a Charge irrespective of whether the Act applies or not. Where an operator chooses not to rely upon the Act, the stated time limits and notice requirements do not apply.

11. There is no prohibition on relying on this reasonable assumption in the IPC Code of Practice.

12. The appellant's vehicle was parked for longer than the maximum time permitted and became liable for the Parking Charge Notice issued as per the Terms and Conditions.