charge for parking in space reserved for another outlet

Dabbed

Hi all
flashpark have replied to my letters and no surprise have rejected my appeal and given me a POPLA code for appeal 
I take it the POPLA route is the best one to take rather than just ignore and see if they take it further?

the original charge stated 
contravention : permitted parking only
as the only visible sign on entering the car park said parking for customers only and the driver was a customer (only later was any other sign stating reserved parking for individual stores seen)
sign at entrance to car park 


the rejection of appeal letter states rejected because 
did not display a valid permit in accordance with the regulations stated on the warning notices displayed in clear and prominent locations around the parking area.
neither the landowner nor flashpark has issued you a permit to park in this area 
are these the only/best ones to appeal against 


Doesn’t say anything about a permit and the only photo seen was from the CCTV camera
here is there clear and prominent sign

What other defence could I use ?
they have not supplied any other information or proof of any rules broken apart from the upside down CCTV Picture previously shown 
any help or guidance appreciated 

Coupon-mad

That's winnable at Popla due to the term not being on the signs.

Fruitcake

The signs don't specify of which establishments the motorist must be a customer or visitor. It doesn't say, for example, if you park here you can only be a customer or visitor of Fruitcake Fruit and Cake shop, and no other establishment, otherwise you agree to pay Scammers Are Us a £100 charge.
There is no restriction displayed on the signs (the contract) preventing a motorist from visiting another establishment or even of leaving the site, let alone a site boundary.

Dabbed

Sorry for not getting back sooner but away from home at the moment so access limited
Thanks fruitcake but just above the conditions (but not in shot) is a sign saying wine shop customers only although the conditions signs are only below some of the signs for the wine shop and not on any of the other retailers 
thanks coupon-mad what would be the best way to phrase it was thinking 
Reasons for rejection of appeal no permit issued for vehicle but no mention of needing permits on the terms and conditions (not sure what else to add or if phrased correct to win appeal)
also states no permit on display but have provided no proof that a permit wasn’t displayed?
or is it just as no mention of permits on condition sign so cannot be reason for rejection 
any help would be greatly appreciated 

Coupon-mad

We'll help you tweak it when you show us your draft.  Most standard points for POPLA are written for you already so you only need to draft one point from scratch,

Dabbed

ok thanks back this weekend so will draft a reply in the next few days so you can have a look, should I put any photos I’m looking to use to prove my points or would that be too much information for others to see 

Dabbed

Below is my draft to POPLA please let me know any improvements I can make and anything that I’ve done wrong or should be left out 

had to post in 2 parts as too long 

Thanks in advance 

ticket number: XXX

Vehicle registration number: XXX

POPLA appeal code: XXX

I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Flashpark as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at 'xxx place, city' on 'xxx date'. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

When I raised my dispute with Flashpark, I explained why it had no valid claim and I was therefore very disappointed to receive from Flashpark a rejection letter that was very clearly a standard template.

I set out below the principal reasons why I am not liable for this parking charge.

I received a PCN in the post for an alleged contravention with a contravention date of ‘xxx date’ and time stated xxxx. The vehicle in question is described as parking in permitted parking only

The date of the PCN was labelled as ‘xxx date’ with an outstanding amount of £85 which would be reduced to £50 if it was paid within 14 days. It went on to state that the parking charge must be ‘paid within 28 days from the date of this notice.’

I submit the points below to show that I am not liable for the parking charge:

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

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. As a notice to keeper the stated contravention of permitted parking only is insufficient information and does not provide adequate details of the alleged offence 

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

5. Ambiguous, inadequate and non-compliant signage - no valid contract formed between Flashpark and the driver and not in compliance with the BPA CoP

6. Photo supplied is a still image from a CCTV camera the photo is of such poor quality that no details can be ascertained and therefore not in compliance with the BPA CoP

7. The reasons for refusal letter states permit required/need to be on show but not stated on any signage 

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

As all of the mandatory information set out by Schedule 4 Paragraphs 8 and 9 of the PoFA have not been made available to me as Registered Keeper, the conditions set out by Paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability and as a result I request that Flashpark provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, a parking charge with no NTK cannot be enforced against the registered keeper.

Schedule 4 Paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper.

The NTK issued on 'xxx date' does not;

- state the period the car was parked;

- state whether a notice was a parking infringement ,driver/car occupant infringement, or time infringement 

As this information is not present then the NTK is invalid and the condition set out in Paragraph 6 of Schedule 4 has not been complied with.

Additionally, the NTK states that ‘The Parking Charge Notice must be fully paid within 28 days from the date of this notice’ which is not compliant with Paragraphs 8 and 9 of Schedule 4 where it is stated that ‘after the period of 28 days beginning with the day after that on which the notice is given’, then the creditor has the right to recover the unpaid charges from the keeper.

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

Flashpark has failed to show that the individual who it is pursuing is in fact liable for the charge.

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 Flashpark, 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.

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:

Understanding keeper liability

“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 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. As a NTK the stated contravention of permitted parking only is insufficient information and does not provide adequate details of the alleged offence 

As a NTK sufficient evidence should be provided with enough detail so as the registered keeper can ascertain with no ambiguity what offence has been committed and why. Stating,

 contravention: Permitted parking only

 Location unit 1xxxxxxxxxxxxxxx 

On date xxxx at time xxxx

This does not provide any information or details for the keeper to know the actual permitted parking breach it  does not state or show what permitted parking was broken or who or what unit 1 is

 As there are several units on site unit 1 could be any of them

NTK says reported on date xxx at time xxx

If the permitted parking breach was  time related proof of time of arrival and time exited needs to be on the NTK it is not 

If it relates to any actions of the vehicle occupants while on site then flashpark must show the actions of all the occupants of the vehicle for the whole time they were on site from entering car park to when they exit 

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

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

5. Ambiguous, inadequate and non-compliant signage - no valid contract formed between Flashpark and the driver

 Flashpark have not placed any signage at either side of the car park entrance, therefore you have not given the “adequate notice” as required by Schedule 4 of the POFA.

Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by Flashpark in respect of the alleged event

In addition to the absence of flashpark signage at the entrance to the car park any other signs on site were not prominent, clear or legible and there is insufficient notice of the sum of the parking charge itself.

There was no contract or agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Additionally, Section 2.7 of the BPA Code of Practice states that “All AOS members must make sure that the AOS logo is prominently displayed in all their car parks, and make it clear to the public that they are governed by the Code”.

Dabbed

Photos of car park entrance showing customers parking only

 

Photos showing no visible flashpark signage

As the photos show the complete lack, absence of signs nullifies there rejection on the grounds of signs displayed in clear and prominent locations

the lack of signage also shows that they don’t comply with the above mentioned codes of practice 

6. Photo supplied is a still image from a CCTV camera and is of such poor quality that no details can be ascertained and therefore not in compliance with the BPA CoP

The only image supplied is a low quality image taken from a CCTV camera the photo is of such poor quality and also upside down that no details can be made out for instance number-plates to identify if it’s the correct car, all that is shown is a row of vehicles 

No signage has been provided on the NTK showing the terms and penalties that can be incurred if any rules are broken 

7. The reasons for refusal letter states permit required/need to be on show but not on any signage 

Flashpark state you did not display a valid permit in accordance with the regulations stated on the warning notices displayed in clear and prominent locations around the parking area 

As already demonstrated in point 5 any signs are not displayed in clear and prominent places

It also states that a valid permit was not displayed in the vehicle flashpark must show proof by photos that a valid permit was not displayed 

Flashpark also state that a permit is required and that this is stated on their warning signs but there is no mention of any permit required on any of their signs therefore making the parking charge invalid 

 

Dabbed

Will I be able to post to POPLA as 1 piece or does it need cutting down 

Fruitcake

You only get one chance at a PoPLA appeal. Everything should fit, but it it doesn't, just put a comment in the appeal text box with something like, see attached appeal pdf, and make sure to attach all of your appeal as said pdf. 

Embed photos rather that links. That way the assessor will be forced to look at them.