POPLA appeal proof read

rev_henry

Wonder if someone would be kind enough to flick through and comment on my POPLA appeal. I've put it together from bits I've read here plus my own adaptation to my specific circs. Removed specifics for obvious reasons. TIA.

Notice to Keeper fails to meet requirements of the Protection of Freedoms Act 2012

In order to assert that the registered keeper of the vehicle is liable for the charge, the Protection of Freedoms Act requires the Notice to Keeper to: 9(2)(a) ‘specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.’

Whilst the document posted to me does indeed specify the vehicle, it fails to specify:

·         ‘the relevant land’ referring to it only as ‘[very common road name]’. There are numerous [road name] throughout the UK, including in XXX, all of which are public roads as far as I am aware, and Private Parking Operators cannot claim to have any jurisdiction over parking arrangements on public roads. The Operator has therefore failed to specify the relevant land in two ways. Firstly by failing to specify the locality and secondly by identifying only public roads rather than private land one cannot possibly hope to identify from the original Notice to Keeper the private land upon which the Operator alleges this incident took place.

·         ‘the period of parking.’ The Notice to Keeper refers only to an entry and exit time/date. Clearly one does not park one’s vehicle the second one enters a car park. One enters the car park, drives around seeking a space and manoeuvres into said space and only after this process does the vehicle become parked. Depending on how busy the car park is this process may take several minutes. Similarly upon leaving the car park congestion may result in a delay of several minutes between manoeuvring out of the parking space and actually driving out of the car park. For these reasons the period of parking is necessarily shorter than the entry and exit times and could conceivably be several minutes shorter during busy periods. The images provided show the car in what appears to be the entrance and exit to a car park, i.e. clearly not where anyone would actually stop and park their vehicle, rather than showing the vehicle entering and leaving an actual parking space. The Operator has thus failed to specify or evidence the period of alleged parking, only the period over which they allege the vehicle was in the car park.

The Protection of Freedoms Act is very clear that the Notice to Keeper must comply with all the above requirements in order for liability for the alleged parking charge to be transferred from the driver to the registered keeper. As I was not the driver at the time, only the registered keeper, and the requirements have clearly not been met as demonstrated above, liability cannot be transferred to me as the registered keeper and my appeal must be allowed.

No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

[not changed this bit at all from the stickies so no need to bore you]

 

Non compliance with BPA Code of Practice on Grace Periods

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.”

Furthermore Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association is on record stating: “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.”

I refer you to the minutes of the BPA Professional Development & Standards Board meeting held on 30th July 2015. These 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: https://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf )

This shows that the intention of stating vaguely 'a minimum of ten minutes' in the current BPA CoP or ‘a minimum of 11 minutes’ as per the 2015 meeting (in both instances not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account.

The Notice to Keeper alleges a duration of X hours, 11 minutes and [a few] seconds in an area the operator claims is restricted to X hours, whereas the Operator’s response to my appeal does not mention the seconds and simply refers to X hours 11 minutes. I am therefore confused as to whether the operator is unsure on the precise timings or has simply rounded down in their rejection of my appeal. If the alleged overstay is 11 minutes exactly, then as per the 2015 meeting minutes this does not exceed the BPA approved grace period and enforcement action is inappropriate. Even if the XX seconds are accurate, as previously stated, this should be considered de minimis and disregarded, meaning enforcement action is still inappropriate.

Non compliance with BPA Code of Practice on Appeals

I must point out that several of the above points were put to the car park operator in my initial appeal to them, however their response has failed to address them adequately or indeed at all in some instances. The operator’s response has been to simply restate their assertion that I as registered keeper am liable for the parking charge without providing any of the evidence I requested to support their claim. The following are examples of evidence which I requested in my initial appeal and which the Operator has failed to provide:

·         Photographic evidence of the signs the Operator contends were at the location on the material date

·         Evidence of the actual grace period agreed by the landowner

·         Evidence/points to refute the fact that the Notice to Keeper fails to fully comply with the requirements of the Protection of Freedoms Act and therefore cannot transfer liability to me as the Registered Keeper of the vehicle

The response is so vague and generic that I would go so far as to suggest that it is a template used to reject appeals en masse without due consideration of the facts put forward by the alleged debtor in each individual instance. The rejection of my appeal with a template letter and without properly considering the facts within said appeal cannot possibly constitute a proper review of my case This is an abuse of process and in breach of the BPA Code of Practice which states that in the event of an appeal such as mine they ‘must review the case.’ POPLA must therefore allow my appeal.

 

KeithP

Who is the parking company?

Are you sure this alleged parking event took place on a public road?
Where exactly did this parking event take place?

Nothing in that appeal about signs - or rather, the lack thereof.

rev_henry

Ocean Parking / Anchor. Who I've not seen come up here an awful lot partly hence my post.

My point is not whether the alleged parking event actually took place on a public road merely that they have only specified land that is public roads. They're talking about a private car park but haven't specified in the NtK where it is and have only mentioned public roads, not the name of an actual private car park. I don't think they're actually trying to enforce something on a public road just that is how the NtK reads.

KeithP

rev_henry said:

My point is not whether the alleged parking event actually took place on a public road merely that they have only specified land that is public roads. They're talking about a private car park but haven't specified in the NtK where it is and have only mentioned public roads, not the name of an actual private car park. I don't think they're actually trying to enforce something on a public road just that is how the NtK reads.

Ah, ok. I misunderstood.

But don't lose my other point... signs.

Also to add...
Please check you are reading the correct version of the BPA's CoP.
I think you are quoting from the wrong version - assuming your alleged parking event took place after January 2020.

rev_henry

Thanks again. However, how can I comment on signage in a car park they have failed to identify? 

Coupon-mad

You can say you have not been able to pinpoint the location due to the vague NTK, however other cases involving this operator show minuscule text signage hidden in non-prominent or unlit corners of sites.

As such...(copy most of the POPLA template on signage...it's long and includes a pic of the ParkingEye v Beavis sign by comparison) and put them to proof that the £100 was in large text on a sign that was conspicuous, legible and bound to be seen by drivers.

rev_henry

Had the appeal response back and now need to compose my, er, response to their evidence pack/response thingy. I know I need to write something, but how much do I need to write here, how much detail do I need to go into?

Do I just refuse what they've said using common sense basically?

Coupon-mad

This stage (POPLA Comments) is explained in the NEWBIES thread 3rd post, but yes, bullet points.

Le_Kirk

Coupon-mad said:

This stage (POPLA Comments) is explained in the NEWBIES thread 3rd post, but yes, bullet points.

..... and mindful of the 2,000 character (not words) limit.

rev_henry

Just to update, POPLA appeal successful. Point #1 was sufficient - relevant land not satisfactorily identified:  

'I can’t accept that this met the requirements of POFA in terms of specifying the relevant land, given there are likely several different XX Streets throughout the country, as well as multiple different premises or addresses situated on each.'

Thanks everyone for your help with this.

Umkomaas

rev_henry said:

Just to update, POPLA appeal successful. Point #1 was sufficient - relevant land not satisfactorily identified:  

'I can’t accept that this met the requirements of POFA in terms of specifying the relevant land, given there are likely several different XX Streets throughout the country, as well as multiple different premises or addresses situated on each.'

Thanks everyone for your help with this.

Nice one, well done. 👍

Not a common POPLA reasoning for upholding an appeal. Well worth others trying this point of vague address as many NtKs can be argued as similarly lacking detail.