Parking "fine" lease car

alexjones_26

Hi all

Private parking “fine” was affixed to a hire car and I am writing to the PPC as “keeper” to appeal. 

Didn’t really feel there was a shot at plan A in the NEWBIES thread - the location is an unnamed (so far as I can tell) road, owned by a private property company, who will redevelop the land in the years to come. There is therefore no "retailer" etc to complain to like usual PLAN A, so would be surprised if a greedy property developer would be happy to waive a PCN when there is no “customer” to maintain a relationship with or give goodwill to, and they will likely feel it’s simply “their land”. 

As mentioned above I have read the NEWBIES thread for hire cars, POFA, and other materials. I agree that I need to quote “hook the PPC in your direction, before they get a chance to get the keeper's details from the DVLA”. 

But I’m afraid that I couldn’t quite make sense of the timelines of the various notices be the appeal points in the templates. I’m not sure any procedural appeal points apply at this stage, as it is still before any NTK / NTH could have been sent? The fine was affixed on Monday 10th October, 10 days ago.  

I don’t wish to invite a back and forth correspondence from the company by requesting photographic evidence, their proof of contract with landowner, or advertising consents - after reading forums, case law etc, I feel confident that I should already have the necessary legal points to cancel the charge forthwith, without any of this additional information.

I just want this dead in the water, and the appeal points I already have I believe should put all the nails in the coffin necessary. 

Why wait until Day 29 onwards with multiple emails, if I can kill it by Day 14 with one email right?  

Perhaps I have not understood something though, and that may need addressing. I invite thoughts/feedback on my draft below, I just want to be sure they are blown away in one hit and no stone is unturned. 


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Dear Sir/Madam

Re: PCN No XXXXX

Car Reg XXXX

I am writing to challenge the above 'PCN' as lessee of the car, and subsequently request all future correspondence be sent directly to myself at the following address:

XXXXX

XXXX

XXXXX

I am the vehicle's “hirer” and “keeper” for the purpose of the corresponding definitions under Schedule 4 of the Protection of Freedoms Act 2012 (POFA). Since it is demonstrated that the “registered keeper” is not the "keeper" (as defined under POFA), Private Parking Solutions (London) Ltd has no reason to contact the DVLA or the car hire company regarding this PCN.

There are no requirements to identify who was driving at the time of the alleged incident – there will be no admissions as to who was driving, and no assumptions can be drawn.

I wish to outline my current position in reference to your PCN and summarise the reasons you have no legal basis to have issued this “fine” and thus you should confirm its immediate cancellation.

1.   Failure to form a contract – forbidding sign / no consideration offered

2.   Failure to follow BPA guidelines regarding lighting of signs

3.   Failure to follow BPA guidelines regarding position of signs

4.   Failure to form a contract – no acceptance

 

1. Failure to form a contract – forbidding sign / no consideration offered

There are four elements to a contract – offer, acceptance, consideration, and an intention to create legal relations.

The signage erected by Private Parking Solutions (London) Ltd states at the top “NO PARKING AT ANY TIME”.

The signs are therefore “forbidding” in nature – they are absolutely prohibitive, and don't communicate an offer of parking. It is widely known in case law that, where the wording of signage forbids parking, the signage doesn’t communicate an offer of parking, capable of forming a contract or being accepted.

This is clear from several cases. 

In PCM-UK v Bull et all B4GF26K6 [2016], the signage forbade parking and so no contract was in place.

In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding. The parking company did not have standing to claim.

In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding. The parking company did not have standing to claim.

 

Other cases in support of this include:

B4GF27K3 PCM (UK) v Mr W [2016]

B4GF26K2 PCM (UK) v Ms L [2016]

 

District Judge Glen adjudged the first case mentioned above, with a similar sign and his comments were:

“… in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM [the parking operator] were not giving to people who parked on the roadway”.

 

Without consideration provided by Private Parking Solutions (London) Ltd, there is no basis to form contract. It is impossible to breach a contract which has not been formed. 

There is no contract in place between Private Parking Solutions (London) Ltd and the driver, that can alleged to have been breached.

Private Parking Solutions (London) Ltd has no contract to enforce.

 

2. Failure to follow BPA guidelines regarding lighting of signs

Notwithstanding that Private Parking Solutions (London) Ltd has failed to form a contract with the driver of the hire car, there are a number of concerning failures that the PPS(L) Ltd has with its signage at the site of the alleged incident. 

If your company actually complied with the Code of Practice you purport to subscribe to via BPA membership, you would be familiar with the signage requirements set out in Appendix B of the BPA Code of Practice.

 

The guide clearly states the following:

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual”. (emphasis added)

  

The ticket was issued at 21:51. The car’s hire term commenced 20:00 on the night of the alleged incident, and the car was parked by the driver sometime thereafter. Clearly, the car would have been parked at a time well past sunset when it was pitch black.

It is noted that absolutely NONE of the signage near to the site of the alleged incident are directly or indirectly lit. I attach an image below of a photo taken at 20:49, approximately the same time as the car would have been parked.

- IMAGE WILL BE INSERTED HERE -

The car was parked on the right of the image at the time of the alleged incident. The nearest sign is on the left of the image, firmly in the shadows with no direct or indirect lighting on or in fact near it.

By failing to illuminate any of the signage, you have made it impossible for any motorist to be made aware of the forbiddance of parking, nor the supposed contractual terms you are attempting to enforce. Motorists are therefore deprived of the opportunity to make an informed decision about whether to continue parking at the site, or find parking elsewhere.

 

In doing so, your company has failed to: 

a)   Display an offer capable of forming the contract you are wishing to enforce

b)   Give reasonable notice of the terms you are attempting to enforce

c)   Give drivers a chance to provide their acceptance and enter into a contract

  

3. Failure to follow BPA guidelines regarding position of signs

Further to the fact that you have failed to light any of your signs, you have also failed to adopt BPA Code of Practice requirements regarding the position of your signage. 

The BPA Code of Practice states that:

“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” (emphasis added)

It is noted that absolutely NONE of the signage directly next to the site of the alleged incident are placed so that they are readable by drivers without needing to look away from the road ahead.

Given the signs are affixed to the walls of buildings lining the roadway, the angle of the signs makes it absolutely impossible to read the text of the signs. In point of fact, the signs and typeface and size of text used is completely illegible unless you are absolutely face on in front of the signs. It is clearly not possible for a driver to keep their focus on the road ahead, and look at signs positioned on walls 90 degrees to the left and right of the vehicle simultaneously.

In doing so, your company has AGAIN failed to:

a)   Display an offer capable of forming the contract you are wishing to enforce

b)   Give reasonable notice of the terms you are attempting to enforce

c)   Give drivers a chance to provide their acceptance and enter into a contract

 

4. Failure to form a contract – no acceptance

Since it was impossible for the driver (or indeed any driver) to physically see the alleged contractual terms Private Parking Solutions (London) Ltd is attempting to enforce, it is accordingly impossible for a driver to accept the alleged terms and enter into a contract.

Without the driver’s acceptance, there is no contract. Since the driver was unaware of the terms, there is no acceptance and therefore no contract.

 

In summary:

1)   Your sign is forbidding, and therefore its fundamentally not capable of forming the basis of a contract.

2)   Your poor signage placement and total lack of visibility (especially at night-time) prevents PPS(L) Ltd from communicating any offer, a requirement to form a contract.

3)   Your poor signage placement and total lack of visibility (especially at night-time) denies motorists the opportunity to “accept” the terms. Acceptance is a requirement to form a contract.

 

In light of the points raised in this appeal, I expect the PCN to be cancelled forthwith.

I do not expect to hear from you again, or your debt collectors, unless to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

Yours faithfully,

XXXXXX

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I look forward to hearing your thoughts.

Thanks

Coupon-mad

Why wait until Day 29 onwards.

No-one tells you to do that. It would be too late!  The tactic is wait till day 25 - but not if it's an IPC member.

Yours is a BPA member:

Private Parking Solutions (London) Ltd

Up to you if you don't follow our timeline but you can't kill the PCN with that appeal.  PCM v Bull is not a silver bullet, and doesn't even work later at POPLA stage.

They'll reject it anyway - and if you rush it, you give them more chance to post a NTK (which our tried & tested 'day 25/26 appeal' tactic is designed to make a small PPC forget).

We know what we're doing...if there was a clever way to kill off most PCNs on first appeal I'd say so, early in the NEWBIES thread first post!

And the only way to kill it at this stage is PLAN A - landowner cancellation.

alexjones_26

Hey coupon-mad

Thanks for your reply. 

I appreciate what you're saying but the newbies thread says to "appeal within the first 2 weeks, well before day 21" for hire/lease cars.

I'm on day 10 out of 14. I can't do day 25/26 appeal in this case, otherwise PPC will reach out to DVLA and hire car company? 

I emailed hire car company to say I do not authorise any charges as the fine is being appealed. Annoyingly they have already confirmed that if they get a NTK, they will charge me 40GBP admin fee. So feel like I'm trapped to "rushing" my appeal in, by the need to hook PPC this way before they incur that charge. I can't play the long game with the cool day 25/26 tactics to catch them out

Definitely don't want to battle PPC to cancel fine AND hire car company to reverse a charge. So need to ensure that PPS(L) Ltd do not reach out to them first. 

That was why I was hoping a firm email along the lines above might prevent the forthcoming. 

So the question that remains with me is do I need to go ahead with entering into the back and forth correspondence with PPC that I was hoping to avoid and use below template:


Re PCN number: XXXXX

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

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.


NAME OF LESSEE
ADDRESS

THE DRIVER IS NOT IDENTIFIED.


No PDT or overstay could have been alleged so have removed those. Bit I put in bold seems pointless since it is not a retailer and landowner probably prefers their predatory conduct to protect their so called "interests" on this totally disused road. So might remove that, doesn't leave much.

This was why I ended up feeling better to go down a different avenue, as I found myself removing an awful lot of the templates as it clearly couldn't have applied in this case. 

Look forward to hearing your thoughts. 

Coupon-mad

 I can't play the long game with the cool day 25/26 tactics to catch them out 

Yes you can! It's a BPA firm and appeals are considered for 28 days. You can appeal on day 25.

They can't get the DVLA data until day 29.

The only reason I say "appeal within the first 2 weeks, well before day 21"  is to make people get a wriggle on, if they are up against an IPC firm.  You aren't.  I explained the difference in my earlier post.

  

alexjones_26

Hi all

Returning to this thread having had my internal appeal to the PPC rejected, and now onto POPLA stage.

Before I draft my POPLA appeal, I just wanted to quickly check I have my points understood and in order, as PPC seem to have completely forgotten to send any of the required documents at all!! 

For reference, alleged incident occurred 10th October 2022, so today is day 56 by my reckoning (assuming 10th Oct = Day 0). 

Following the advice on this thread, I appealed on 6th November (day 26), using a mostly unedited version of the template from the newbies thread, naming me as hirer/lessee/keeper for POFA purposes, not naming the driver at the time, and sending a list of questions I wished PPC to answer (again from one of the templates).

They responded by email on 10th November, rejecting the appeal, and provided me with a POPLA code. They didn’t really respond to the questions. I can post the wording if that was at all helpful. 

Here I am, day 56, and I have not received a postal NTH or NTK, nor the “copy of the documents mentioned in paragraph 13(2)” they are required to send. I’ve not had any communication from the hire car company, so I assume they have not been contacted. 

To clarify, the only things I have received are the initial windscreen ticket, and the appeal rejection letter sent by email. Nothing else. 

So, I believe a lack of documents and NTH or NTK are slam dunk legal/procedural points? And I can just supplement those point by throwing in the poor lighting, poor positioning, “no parking at any time signage = no contract formed” points for good measure? 

If someone can confirm the above is accurate, along with any other points it could benefit me to raise (if any), I will then write up and post my draft appeal on here for a quick review. 

I intend to submit the appeal tomorrow, day 27 of POPLA 28 day timeline. 

I look forward to hearing from someone on this most helpful forum! 

Grizebeck

Yes v.easy win at popla

alexjones_26

Great news thanks. No other points need adding? What I’ve said above is enough alone? 

Grizebeck

Yes but you have to spell it out etc

alexjones_26

Oh I definitely shall do!! No worries about that. Thanks so much 

alexjones_26

@Grizebeck @Coupon-mad could I please have your thoughts on the below. I am splitting it over two posts as the body is too long.

I've copied and pasted a lot of the sections from a successful POPLA appeal, and tidied it up.

My only additions are the Notice to Hirer section (which I added since it was relevant in my case), the NO PARKING AT ANY TIME wording being forbidding/not forming a contract, and the signage lack of lighting and poor positioning. 

Many thanks for your help in advance.

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Dear Sir/Madam

Re: POPLA Code XXXXXX

Car Reg XXXXXX

Dear POPLA Adjudicator,

I am the hirer/lessee of vehicle XXXXXX and am appealing a parking charge from Private Parking Solutions (London) Ltd on the following points:

1. A compliant Notice to Keeper or Notice to Hirer was never served - no Keeper or Hirer Liability can apply.

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

3. The sign states “NO PARKING AT ANY TIME” and is forbidding and therefore not an invitation to form a contract. Cannot breach a contract which is not formed.

4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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

1. A compliant Notice to Keeper or Notice to Hirer was never served - no Keeper or Hirer Liability can apply.

Notice to Keeper

Summary: Notice to Keeper has NOT been sent by PPC

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:

4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:

6(1) ''The second condition is that 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. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in POFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not provided as required.

 

Notice to Hirer

Summary: Both the Notice to Hirer AND copy of the documents required under POFA 2012 paragraph 13(2) have NOT been sent by Operator

Regarding the Notice to Hirer, the wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

“The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) a copy of the hire agreement; and

(c) a copy of a statement of liability signed by the hirer under that hire agreement.

The NTH must have been delivered to the hirer’s address within the ‘relevant period’ which is stated as a total of 56 days beginning with the day after that on which any notice to driver was given.

Clearly, I cannot be held liable to pay this charge, as the mandatory series of parking charge documents were not provided as required. 

 

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

Summary: The driver is not known.

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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

“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 lessee/keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.”

 

3. The sign states “NO PARKING AT ANY TIME” - this is forbidding and therefore not an invitation to form a contract. It is not possible to breach a contract which has not been formed.

Summary: Private Parking Solutions (London) Ltd forbidding sign fails to form a contract, and so the operator has no contract to enforce.

There are four elements to a contract – offer, acceptance, consideration, and an intention to create legal relations. 

The signage erected by Private Parking Solutions (London) Ltd states at the top “NO PARKING AT ANY TIME”.

The sign is therefore “forbidding” in nature – it is absolutely prohibitive, and doesn’t communicate an offer of parking. It is widely known in case law that, where the wording of signage forbids parking, the signage doesn’t communicate an offer of parking capable of forming a contract or being accepted.

This is clear from several cases. 

In PCM-UK v Bull et all B4GF26K6 [2016], the signage forbade parking and so no contract was in place.

In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding. The parking company did not have standing to claim.

In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding. The parking company did not have standing to claim.

Other cases in support of this include:

B4GF27K3 PCM (UK) v Mr W [2016]

B4GF26K2 PCM (UK) v Ms L [2016]

District Judge Glen adjudged the first case mentioned above, with a similar sign and his comments were:

“… in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM [the parking operator] were not giving to people who parked on the roadway”. 

Without consideration provided by Private Parking Solutions (London) Ltd, there is no basis to form contract. It is impossible to breach a contract which has not been formed. 

There is no contract in place between Private Parking Solutions (London) Ltd and the driver, that can alleged to have been breached. 

Private Parking Solutions (London) Ltd has no contract to enforce.

alexjones_26

4. The signs in this car park are not prominent, clear or legible from all parking spaces

Signs aren’t lit (neither directly nor indirectly)

Summary: Signage doesn’t meet BPA standards of lighting

Notwithstanding that Private Parking Solutions (London) Ltd has failed to form a contract with the driver of the hire car by forbidding parking, there are a number of concerning failures that the PPS(L) Ltd has with its signage at the site of the alleged incident.

The BPA Code of Practice guide clearly states the following:

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual”. (emphasis added)

The ticket was issued at 21:51. The car’s hire term commenced 20:00 on the night of the alleged incident, and the car was parked by the driver sometime thereafter. Clearly, the car would have been parked at a time well past sunset when it was pitch black.

It is noted that absolutely NONE of the signage near to the site of the alleged incident are directly or indirectly lit. I attach an image below of photos taken at 20:49, approximately a similar time as the car could be estimated to have been parked.

[IMAGE OF THE LOCATION AT APPROXIMATE TIME THE CAR MIGHT HAVE BEEN PARKED - PITCH BLACK - SIGNS HIDDEN IN SHADOWS]

The car was parked on the right of the image at the time of the alleged incident. The nearest sign is on the left of the image, firmly in the shadows with no direct or indirect lighting on or in fact near it.

By failing to illuminate any of the signage, PPS(L) Ltd have made it impossible for any motorist to be made aware of the forbiddance of parking, nor the supposed contractual terms they are attempting to enforce. Motorists are therefore deprived of the opportunity to make an informed decision about whether to continue parking at the site, or find parking elsewhere.

In doing so, they have failed to:

a)   Display an offer capable of forming the contract they are wishing to enforce

b)   Give reasonable notice of the terms they are attempting to enforce

c)    Give drivers a chance to provide their acceptance and enter into a contract

  

Positioning of Signage

Summary: Signage doesn’t meet BPA standards of positioning

Further to the fact that the operator has failed to light any of their signs, they have also failed to adopt BPA Code of Practice requirements regarding the position of their signage. 

The BPA Code of Practice states that:

“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” (emphasis added)

It is noted that absolutely NONE of the signage directly next to the site of the alleged incident are placed so that they are readable by drivers without needing to look away from the road ahead.

Given the signs are affixed to the walls of buildings lining the roadway, the angle of the signs makes it absolutely impossible to read the text of the signs. In point of fact, the signs and typeface and size of text used is completely illegible unless you are absolutely face on in front of the signs, and in close proximity (2 meters or less). It is clearly not possible for a driver to keep their focus on the road ahead, and look at signs positioned on walls 90 degrees to the left and right of the vehicle simultaneously.

In doing so, PPS(L) Ltd has AGAIN failed to: 

a)   Display an offer capable of forming the contract they are wishing to enforce

b)   Give reasonable notice of the terms they are attempting to enforce

c)    Give drivers a chance to provide their acceptance and enter into a contract

Since it was impossible for the driver (or indeed any driver) to physically see the alleged contractual terms Private Parking Solutions (London) Ltd is attempting to enforce, it is accordingly impossible for a driver to accept the alleged terms and enter into a contract.

Without the driver’s acceptance, there is no contract. Since the driver was unaware of the terms, there is no acceptance and therefore no contract.

 

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

Summary: there is no evidence that the operator has the authority of the landowner in order to issue parking charges.

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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

e the definition of the services provided by each party to the agreement

 

In light of the procedural and non-compliance points raised in this appeal, I trust you are satisfied that the operator must cancel the PCN forthwith.

Yours faithfully,

XXXXXX