Flashpark POPLA Appeal - thoughts?

ab1995

Hi guys, 

For a bit of context, the vehicle in question was parked along a short access road that leads to a small estate. The vehicle had been used to park on this road for a total of 9 months, with no issue whatsoever. It wasn't until a letter from Flashpark arrived through the post, that the driver was made aware that 'new' parking restrictions had been put in place. This new Flashpark sign was placed over the old (and outdated) parking restrictions sign, so was not noticed until it was too late. No Notice to Driver or note of any sort was left on the vehicle itself. 

It has come to my attention that a resident of one of the houses in the small estate linked by the road, is the 'agent' in question who has signed up to Flashpark and, is now enforcing parking restrictions where they have no authority to do so. 

As the registered keeper, I appealed to Flashpark on the grounds that the NTK was not compliant with POFA Section 4 etc, which as I expected was rejected by Flashpark. The reasons they gave were that 'No valid permit' was displayed on the vehicle, so clearly a template rejection response.

I have now pulled together a POPLA appeal, which was put together predominantly from old posts on here, but since these posts were dated from 2018, I was wondering if someone might be able to check over my POPLA appeal before it is sent today.

ab1995

Ticket number: XX
Vehicle registration number: XX
POPLA appeal code: XX

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 'xyz place, city' on 'xyz 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 initially raised my dispute with Flashpark, I took great care to explain 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 ‘xyz date’. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.

The date of the PCN was labelled as ‘xyz date’ with an outstanding amount of £100 which would be reduced to £60 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. This is an access road, not a "permit holders only car park"
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
6. Photos taken by 'self-ticketer' (non-employee of the operator) and not in compliance with the BPA CoP


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 'xyz date' does not;
- state the period the car was parked;
- state whether a notice was given either to the driver or placed on the vehicle and if so, to repeat the information in that notice about paying the parking charge and when.

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. This is an access road, not a "permit holders only car park"

This is an access road, not a "permit holders only car park" I put it to Flashpark to show strict proof of an actual permit scheme being in operation for all cars parked on the road (or beyond) - not just signs and a PCN mentioning this imaginary contravention.


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

ab1995

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

Neither Flashpark nor the land agent have 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.

There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms.

In addition to the absence of signage at the entrance to the car park and the signs nearest to the location my vehicle was parked 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”.


6. Photos taken by 'self-ticketer' (non-employee of the operator) and not in compliance with the BPA CoP

As far as is known, there is no ANPR or CCTV in the car park and the picture supplied on the PCN looks to have been taken from a hand-held camera by a person.

This is confirmed, as I discovered that FlashPark only advertise a 'self-ticketing' regime on their website:

'link'

The fourth paragraph of the precis says:

''The landowner, personal or corporate, decides who can and can't park on the grounds. For example, a company can decide that its own senior employees, authorised contractors and invited visitors can park there - and nobody else - on pain of receiving a Penalty Charge Notice.''

The BPA Code says the following, which is not just about the heading on a PCN, but prohibits all use of the word 'penalty' by AOS members:

''Misrepresentation of authority

14.1 You must not serve a parking charge notice or include material on your website which in it’s design and/or language:
a) implies or would cause the recipient to infer statuory authority where none exists;
b) deliberately resembles a public authority civil enforcement penalty charge notice.

14.2 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as 'fine', 'penalty' or 'penalty charge notice'.''

The final paragraph on the Flashpark website compounds this misrepresentation of the authority of the private operator in question, by adding:

''The warning signs act as an excellent deterrent on their own and the regulations can be tailor made to suit your car park requirements. In most parking problem cases there is no need for towing away, wheel clamping or self-ticketing.''

On this page it is clear that 'FlashPark' is not so much a parking operator, as an automated DIY immediate ticketing system where PCNs are issued by anyone, with any camera, with no training mentioned anywhere except how to take a photo and upload it instantly:

'link'

''Once you report a vehicle to us, and send correct photo evidence, we will send the vehicle's registered keeper a parking charge notice - as quickly as two days later. When a vehicle is reported its registration is checked for accuracy and cross-checked against the police stolen vehicle register. At all times the driver is liable.''

POPLA's attention is drawn to the final sentence, showing that the self-ticketer is not told about 'keeper liability' of their actions, and that only the driver is liable 'at all times'. Clearly a non-POFA operation, in case the lack of a compliant NTK has left POPLA in any doubt.

But it gets worse, as the operator sells a 'simple' (and very much BPA non-compliant) self-ticketing scheme.

''What do I need to do?
Simply create an account online. Then order your warning signs and display them in clear and prominent places around the parking area. We can customise the signs to suit your circumstances and your parking rules. As soon as the signs are displayed, and we have approved your photographic evidence of this, you can begin to issue tickets.''

''How do I issue tickets?
Take a picture of the vehicle in its offending position. Log in to our website and enter the vehicle registration number. Enter the date and time of the offence. Upload the photograph. That's it.''

And on this page:

'link'

''Flashpark was developed to provide private landlords and businesses with an alternative to wheel clamping.''

Towing away and wheel clamping are both illegal activities and have been since 2012, yet this is being touted to landowners in the same sentence as 'self-ticketing' along with the phrase 'penalty charge notice'.

A link leads you to this PDF, which shows the sum total of 'rules' for this army of self-ticketers ('rules' that are entirely about how to take an incriminating photo and how to quickly mock up a site map using an old Google Streetview aerial picture and re-dating it):

'link'

No mention whatsoever, on any page or leaflet provided to the landowner, is made of the true level of authority of a private firm, nor that clamping is illegal, nor anything about the applicable laws (e.g. the DPA as the self-ticketer is taking photos and handling personal data in the form of the VRN; the Equality Act relating to reasonable adjustments for disabled drivers, or the POFA).

Most alarmingly, this is touted as a 'quick fix' and nothing at all is said about the mandatory requirements for all self ticketers to abide by, and be fully familiar with, namely the rules within the BPA Code of Practice, which says:

'link'

''Third party sub-contractors and 'self-ticketing'

15.2a You are responsible for making sure the customer keeps to the Code. You must provide your customer with an up-to-date copy of the Code and get their signed confirmation that they have read the Code and agree to keep to it.

There is nothing to suggest that a predatory self-ticketer at this location has agreed to keep to the Code, nor even seen or heard of it.

'link'

''What do I do if someone parks in my private car park?

It really couldn't be easier to issue parking charge notices through our Flashpark system. Once you have set up an account, and it has been approved, you will be able to issue parking notices to drivers. If you notice someone parked in one of your spaces illegally, simply take some clear pictures of the car, in which it is also possible to see the signs from Flashpark. Once we receive these pictures, we run the registration number through our system, which links automatically with the DVLA and gives us the contact details for the driver. The government is introducing the code of practice to regulate the activities of private car parks.”

Of course, parking on private land is not in fact 'illegal', and the DVLA cannot possibly give the contact details of the driver, only the registered keeper at the time. This operator's self-ticketers are not being trained and are being misled:

It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours Faithfully,

XX

______________

Thanks in advance, guys.

Fruitcake

The NEWBIES, including the third post that deals with PoPLA is up to date.

Plan A is always a complaint from the keeper to the landowner and the keeper's MP. Have you done this yet?

Your draft appeal looks okay to me. You could add that the NTK does not specify the relevant land, but I think you covered the main points.

You should include embed photos of the site and signage as opposed to using links. That way it will force the assessor to actually look at them.

Note that PoPLA codes last 33 days, so you have time to wait for other comments from the regulars.