HX Car Park Management Ltd at Tesco Petrol Station, Willow Brook Centre, Bradley Stoke

deficit

Hi, I've had a PCN come through from the above company. Redacted NTK and a couple of photos I've taken of the signage at the location:



I've started writing an appeal (see below in italics) and would welcome any comments. Many thanks in advance

Ref Parking Charge Notice (PCN) reference xxxxx.

I dispute your "charge", as the keeper of the vehicle. I deny any liability or contractual agreement with any party identified in your letter, headed "Parking Charge Notice", reference xxxxx, which appears to me to be nothing more than a series of unfounded threats embodied in a speculative invoice. I also deny that there is any requirement placed on me, legally or otherwise, to identify the driver of this vehicle and I therefore decline to do so.

The vehicle in the images supplied with this letter appears to be stopped at a Tesco petrol station forecourt, which a vehicle may reasonably be assumed to be welcome to enter and stop, with no evidence of any signage whatsoever relating to any purported terms, conditions or an offer of any sort of contract. There therefore appears to be absolutely no basis for any "charge".

I assume that HX Car Park Management Ltd (HX) intend to rely on Protection Of Freedoms Act 2012 Schedule 4 (POFA) as grounds to pursue the keeper for the alleged debt in the event that the driver of the vehicle and their personal details are not identified. POFA paragraph 9 (2) (f) states that "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid". As I have set out in this appeal, the applicable conditions have not been met, therefore HX have no right to recover any alleged debt from the keeper.

Even if the alleged debt were genuinely due, which it is not, HX have no right to add costs of debt recovery or legal claims. POFA paragraph 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK, in this case £100.

The Site is not relevant land under POFA therefore HX have no right to pursue the keeper. It is not relevant land because it does not fulfil any of the criteria in POFA paragraph 3 (1). No evidence has been submitted that it is a public highway (which seems unlikely since it is quite clearly a petrol station forecourt), it is not controlled by a traffic authority and no evidence has been submitted that it is under statutory control (byelaws).

Given the list of legal contraventions above, it is reasonable to say that either HX do not comply with IPC CoP v8 paragraphs 25.1 or 27.1. They are either unaware of their legal obligations or don't care about them; either way, they fail to implement the relevant legislation and guidance when operating their business.

Whilst I appreciate the need for parking control on private land, I do not appreciate the apparent predatory business tactics of HX whereby it is insisted that people going about their lawful daily business have entered into some kind of non-existent contract. Nor do I appreciate harassing and distressing letters, making unwarranted veiled threats towards my credit rating.

The tone of the correspondence received from HX to date has been arrogant, threatening and, due to the miriad of false claims made therein, tantamount to harassment, contravening IPC CoP v8 paragraph 27.1. I shall be making a formal complaint to the Landowner of of the Site referenced in your letter and my MP as it is my view that HX:
- should no longer be allowed to operate in the UK, given that failure to adhere to the IPC CoP and UK law is grounds for ejection from the Approved Operator Scheme and, since the PCN appears to be a template document, it seems reasonable to assume that these numerous failures have been repeated habitually, in a great many other cases, constituting, in my view, a serious breach under IPC CoP paragraph 26.2.
- should be banned from accessing any information in the DVLA database since they have made improper use of DVLA data which is implicitly supplied to enable HX to follow the law, not to break it as they have done in this case and, in all likelihood, a great many other cases.

Given the above points, I wish to receive no further correspondence from HX or their agents with respect to charge notice xxxxx with the exception of a response to this appeal confirming that the PCN shall be cancelled with no further action.

KeithP

deficit said:

The Site is not relevant land under POFA therefore HX have no right to pursue the keeper. It is not relevant land because it does not fulfil any of the criteria in POFA paragraph 3 (1). No evidence has been submitted that it is a public highway (which seems unlikely since it is quite clearly a petrol station forecourt), it is not controlled by a traffic authority and no evidence has been submitted that it is under statutory control (byelaws).

I'll just address that one point if I may?

I think you are entirely wrong with that assertion. 
You have the conditions in POFA para 3(1) the wrong way round.

The opening words of that paragraph are "In this Schedule “relevant land” means any land (including land above or below ground level) other than—"

See the words 'other than' there?

So it is relevant land if it is not a public highway, and it is not controlled by a traffic authority and it is not under statutory control.

deficit

KeithP said:

I think you are entirely wrong with that assertion. 
You have the conditions in POFA para 3(1) the wrong way round.

You're right there Keith, thanks for pointing that out, I've deleted that bit.

I've also added "The PCN does not specify the period of parking to which the notice relates, it simply states "the period of parking preceding the incident time", which is very vague and does not satisfy POFA paragraph 9(2)(a)."

deficit

Any more comments on this?  Will be sending the appeal tomorrow

troublemaker22

Glad you're deleting the bad "relevant land" point.

You've unhelpfully redacted all the dates.  A postal notice to keeper of this type must be delivered no later than the end of the period of 14 days beginning with the day after the date of posting and (crucially) is deemed given on the second working day after posting (POFA 9(2)(5) & (6)).  Have you done all the arithmetic and concluded that it was delivered in time?

Assuming it was delivered in time, I think your POFA points are unclear the way you've phrased them.  How about the following?

I am appealing as keeper. You have admitted that you do not know the driver's identity. I am not not obliged to identify the driver and I decline to do so.  Courts have repeatedly held that there is no presumption that the keeper is also the driver and the only way a parking operator can pursue a parking charge claim against a keeper in these circumstances is to deliver a notice to keeper that complies with all the requirements for a notice to keeper set out in Schedule 4 to the Protection of Freedoms Act 2012 ("POFA").

Your notice fails to comply with POFA and it is now too late for you to deliver a POFA-compliant to keeper because  the "relevant period" as defined in POFA paragraph 9(2)(5) has expired.  Specifically (and without limitation):

1.  Your notice fails to specify the period of parking as required by POFA paragraph 9(2)(a).  A period has a beginning point;

2. Your notice does not contain the mandatory warning required by paragraph 9(2)(f) because that paragraph requires the warning to state that your right to recover from the keeper is conditional upon all the applicable conditions under POFA being met; 
 
I don't necessarily agree with your interpretation of POFA paragraph 4 (5)  - but keep it in if you like it.

As I'm sure you know, IPC members generally refuse all appeals and the tame IAS rarely sides with motorists.  So the regulars on this forum generally advise against bothering with an appeal to IAS - but as a loss at IAS isn't binding on the motorist, I say why not give it a whirl?  There's no right or wrong answer.  I've won some appeals at IAS to my own surprise.

Coupon-mad

Was the vehicle shown stopped on hatched lines?

There are only terms for permit holders on that sign (and only two terms).  No parking offer at all is set out for - or applying in any way to - non-permit holders, so a 'relevant contract' cannot have been breached.

The above is important.  It's a point that could potentially have legs at IAS.

This doesn't have legs; remove it all:

The Site is not relevant land under POFA therefore HX have no right to pursue the keeper. It is not relevant land because it does not fulfil any of the criteria in POFA paragraph 3 (1). No evidence has been submitted that it is a public highway (which seems unlikely since it is quite clearly a petrol station forecourt), it is not controlled by a traffic authority and no evidence has been submitted that it is under statutory control (byelaws).
Given the list of legal contraventions above, it is reasonable to say that either HX do not comply with IPC CoP v8 paragraphs 25.1 or 27.1. They are either unaware of their legal obligations or don't care about them; either way, they fail to implement the relevant legislation and guidance when operating their business.
Whilst I appreciate the need for parking control on private land, I do not appreciate the apparent predatory business tactics of HX whereby it is insisted that people going about their lawful daily business have entered into some kind of non-existent contract. Nor do I appreciate harassing and distressing letters, making unwarranted veiled threats towards my credit rating.
The tone of the correspondence received from HX to date has been arrogant, threatening and, due to the miriad of false claims made therein, tantamount to harassment, contravening IPC CoP v8 paragraph 27.1. I shall be making a formal complaint to the Landowner of of the Site referenced in your letter and my MP as it is my view that HX:
- should no longer be allowed to operate in the UK, given that failure to adhere to the IPC CoP and UK law is grounds for ejection from the Approved Operator Scheme and, since the PCN appears to be a template document, it seems reasonable to assume that these numerous failures have been repeated habitually, in a great many other cases, constituting, in my view, a serious breach under IPC CoP paragraph 26.2.
- should be banned from accessing any information in the DVLA database since they have made improper use of DVLA data which is implicitly supplied to enable HX to follow the law, not to break it as they have done in this case and, in all likelihood, a great many other cases.

deficit

troublemaker22 said:

Glad you're deleting the bad "relevant land" point.

You've unhelpfully redacted all the dates.  A postal notice to keeper of this type must be delivered no later than the end of the period of 14 days beginning with the day after the date of posting and (crucially) is deemed given on the second working day after posting (POFA 9(2)(5) & (6)).  Have you done all the arithmetic and concluded that it was delivered in time?

Assuming it was delivered in time, I think your POFA points are unclear the way you've phrased them.  How about the following?

I am appealing as keeper. You have admitted that you do not know the driver's identity. I am not not obliged to identify the driver and I decline to do so.  Courts have repeatedly held that there is no presumption that the keeper is also the driver and the only way a parking operator can pursue a parking charge claim against a keeper in these circumstances is to deliver a notice to keeper that complies with all the requirements for a notice to keeper set out in Schedule 4 to the Protection of Freedoms Act 2012 ("POFA").

Your notice fails to comply with POFA and it is now too late for you to deliver a POFA-compliant to keeper because  the "relevant period" as defined in POFA paragraph 9(2)(5) has expired.  Specifically (and without limitation):

1.  Your notice fails to specify the period of parking as required by POFA paragraph 9(2)(a).  A period has a beginning point;

2. Your notice does not contain the mandatory warning required by paragraph 9(2)(f) because that paragraph requires the warning to state that your right to recover from the keeper is conditional upon all the applicable conditions under POFA being met; 
 
I don't necessarily agree with your interpretation of POFA paragraph 4 (5)  - but keep it in if you like it.

As I'm sure you know, IPC members generally refuse all appeals and the tame IAS rarely sides with motorists.  So the regulars on this forum generally advise against bothering with an appeal to IAS - but as a loss at IAS isn't binding on the motorist, I say why not give it a whirl?  There's no right or wrong answer.  I've won some appeals at IAS to my own surprise.

Thanks for this, I've restructured it a bit (whilst also taking out some of the stuff Coupon-Mad says has no legs.  Any further thoughts?

I, as the keeper of the vehicle, dispute your "charge".  You have admitted that you do not know the identity of the driver of this vehicle.  I deny any liability or contractual agreement with any party identified in your letter, headed "Parking Charge Notice" (PCN), reference xxxxxx, which appears to me to be nothing more than a series of unfounded threats embodied in a speculative invoice.  I also deny that there is any requirement placed on me, legally or otherwise, to identify the driver of this vehicle and I therefore decline to do so.

The vehicle in the images supplied with this letter appears to be stopped at a Tesco petrol station forecourt, which a vehicle may reasonably be assumed to be welcome to enter and stop, with no evidence of any signage whatsoever relating to any purported terms, conditions or an offer of any sort of contract.  There therefore appears to be absolutely no basis for any "charge".

I assume that HX Car Park Management Ltd (HX) intend to rely on Protection Of Freedoms Act 2012 Schedule 4 (POFA) as grounds to pursue the keeper for this alleged debt and that the PCN is intended to be relied upon by HX as a Notice To Keeper (NTK).  POFA paragraph 9 (2) (f) states that "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid".  As I have set out in this appeal, the applicable conditions have not been met, therefore HX have no right to recover any alleged debt from the keeper.

Your notice fails to comply with POFA and it is now too late for you to deliver a POFA-compliant NTK because  the "relevant period" as defined in POFA paragraph 9(5) has expired.  Specifically (and without limitation):

1. The NTK does not specify the period of parking to which the notice relates, it simply states "the period of parking preceding the incident time".  A period has both a start and and end time.  This NTK therefore does not satisfy POFA paragraph 9(2)(a).

2. The NTK does not contain the mandatory warning required by POFA paragraph 9(2)(f) because that paragraph requires the warning to state that your right to recover from the keeper is conditional upon all the applicable conditions under POFA being met.

3. Even if the alleged debt were genuinely due, which it is not, HX have no right to add costs of debt recovery or legal claims.  POFA paragraph 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK, in this case £100.

 In the alternative, if HX do not intend to rely on POFA, then HX have no legal grounds to pursue the keeper of the vehicle for the alleged debt at all.

Given the legal contraventions above, it is reasonable to say that either HX do not comply with IPC CoP v8 paragraphs 25.1 or 27.1.  They are either unaware of their legal obligations or don't care about them; either way, they fail to implement the relevant legislation and guidance when operating their business.  

The tone of the correspondence received from HX to date has been arrogant, threatening and, due to the false claims made therein, tantamount to harassment, contravening IPC CoP v8 paragraph 27.1.

Whilst I appreciate the need for parking control on private land, I do not appreciate the apparent predatory business tactics of HX whereby it is insisted that people going about their lawful daily business have entered into some kind of non-existent contract.  Nor do I appreciate harassing and distressing letters, making unwarranted veiled threats towards my credit rating.

Given the above points, I wish to receive no further correspondence from HX or their agents with respect to charge notice xxxxxx with the exception of a response to this appeal confirming that the PCN shall be cancelled with no further action.

deficit

Coupon-mad said:

Was the vehicle shown stopped on hatched lines?

There are only terms for permit holders on that sign (and only two terms).  No parking offer at all is set out for - or applying in any way to - non-permit holders, so a 'relevant contract' cannot have been breached.

The above is important.  It's a point that could potentially have legs at IAS.

This doesn't have legs; remove it all:

xxxxxx

Thanks for this.  The vehicle was stopped on hatched lines.  I haven't brought up the signage because there is no signage included in any of their photos.  Do you think I can save this point for a later stage rather than bringing it up now, or do I need to bring it up now?

Coupon-mad

But you were not a permit holder so neither of the terms apply to you.  The entire sign only addresses Permit Holders.

troublemaker22

deficit said:

 I haven't brought up the signage because there is no signage included in any of their photos.  Do you think I can save this point for a later stage rather than bringing it up now, or do I need to bring it up now?

It's not a good idea to limit your challenge to things they have kindly shown you. If you can conduct a site visit or use google street view to gather your own evidence, feel free to deploy it. So if you discover the signage and it helps your case, use it at the first available opportunity and as often as you need to.  It won't wear out or go stale.   

Something like this maybe:

Furthermore, there is no liability that can be transferred to the keeper under POFA if the driver is not themselves liable.  A site visit was conducted to determine whether there was adequate signage in place.  A copy of the relevant sign is attached.  It forbids all parking except by permit holders. Courts have repeatedly held that where signage forbids parking (whether at all or without a permit) while the landowner might have a claim for unliquidated damages for trespass against the driver, the car park operator has no contractual claim against the driver for the sum specified on the signage. See PCM-UK v Bull et al (2016) and UK Parking Control v Masterson (2016). In both cases it was held that forbidding signage cannot provide the basis for a contractual claim by the parking operator for the amount specified on the sign; any financial liability of the driver being limited to a claim by the landowner, not the parking operator, for damages for any loss actually suffered by the landowner as a result of the trespass.

If you want to provide copies of the transcripts of these cases, you can download them here https://we.tl/t-I036lKsUFv 

You will need to supply the pdf copies with your IAS appeal if you go down that route

Fruitcake

If that is your real PCN number, you should delete it, or report your post and ask for it to be deleted. An unscrupulous person could do a lot of damage with that information.

If there was no offer of parking to non permit holders, then the signs are forbidding. If there was no offer to park, then there can have been consideration, and therefore no agreement to form a contact with the operator, and therefore no contract can have been breached.