Baysentry PCN- Citipark app error

Community1234

Coupon-mad said:

Don't post it.

Have appealed on the online portal using the 'no signage' option.

will update thread when a decision is sent back. 

Grizebeck

Coupon-mad said:

Don't post it.

Totally. Why on earth would you post it.

Community1234

I received a reply to my appeal to say it has been rejected.
They have sent me a POPLA code.

I have read the forum and searched various threads to learn what to do next. 

I have drafted an initial response and wanted to know if it looks okay. Would appreciate any feedback.

Also as mentioned in the original post, this has all come about due to the parking app not bringing up the parking session. Should the fact there is a screen recording of this attempt be added to the appeal? 

POPLA Verification Code: xxx

I write to you to lodge a formal appeal against a £100 Parking Charge Notice (PCN) issued by BaySentry Solutions, sent to myself as registered keeper of the vehicle xxxx,

There will be no admissions as to who was driving and no assumptions can be drawn.

I contend that I am not liable for this parking charge on the basis of the below points:

 1. Failure to Demonstrate Driver Liability: The operator, BaySentry Solutions, has failed to demonstrate that the individual they are pursuing is indeed the driver who may have been potentially liable for the charge.

2. Baysentry Solutions have no Standing or Authority to pursue charges nor form parking contracts

3. Disproportionate Penalty Amount: The amount demanded by BaySentry Solutions is a penalty and is grossly disproportionate to any legitimate interest.

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

 1. Failure to Demonstrate Driver Liability: The operator, BaySentry Solutions, has failed to demonstrate that the individual they are pursuing is indeed the driver who may have been potentially liable for the charge.

As the registered keeper of the vehicle, I am under no legal obligation to name the driver, and the operator cannot assume liability without providing evidence of the driver's identity. The lack of evidence and failure to establish the identity of the driver further undermines the validity of 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.!

In this case, no other party apart from an evidenced driver 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot 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.''

 

2. Baysentry Solutions have no Standing or Authority to pursue charges nor form parking contracts

Baysentry Solutions have no Standing or Authority to form parking contracts or enforce them in court in their own name Baysentry Solutions have no authority to issue parking contracts nor to pursue to court as required in the BPA code of practice. The Baysentry Solutions Contract should be with the Landowner and not a company leasing the land. Baysentry Solutions must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

7 Written authorisations of the landowner

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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

7.4 Our compliance team are responsible for making sure that you follow the Code. If the team give you reasonable notice, you must allow our appointed manager to inspect the landowner’s written authorisation.

3. Disproportionate Penalty Amount: The amount demanded by BaySentry Solutions is a penalty and is grossly disproportionate to any legitimate interest.

This is a paid car park with no such commercial justification for a high penalty charge. The charge of £100 is arbitrary and unjustifiable, as BaySentry Solutions has not provided a breakdown of costs incurred or demonstrated a genuine pre-estimate of loss. The charge appears to be an attempt to extract an unreasonable and unfair sum from motorists, rather than a reasonable reflection of any actual damages or losses suffered.

Based on the aforementioned points, I kindly request that POPLA undertakes a thorough review of this appeal and cancels the Parking Charge Notice issued by BaySentry Solutions. The operator has failed to provide sufficient evidence of liability, the signage is inadequate and does not form a valid contract, and the amount charged is a disguised penalty without any reasonable justification. I trust that POPLA will conduct an objective and fair assessment of the facts in this case.

I appreciate your attention to this matter and I look forward to your response and a favorable resolution. Should my appeal be unsuccessful, I kindly request information on the next steps available for further escalation.

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

Coupon-mad

Should the fact there is a screen recording of this attempt be added to the appeal? 

Popla paints itself as 'all about evidence' so you obviously include that screenshot.

Community1234

Coupon-mad said:

Should the fact there is a screen recording of this attempt be added to the appeal? 

Popla paints itself as 'all about evidence' so you obviously include that screenshot.

Okay thanks for the response.

Unfortunately its actually a video as the attempt to try and pay was screen recorded. I will try and see if I can screenshot parts of the videos to try and show the steps taken.

Are the rest of the points made in the appeal valid? 

Coupon-mad

But you can send POPLA a video I think? Ask them.

Community1234

Coupon-mad said:

But you can send POPLA a video I think? Ask them.

According to what it says on the POPLA website and searching for what others have said on the forum, videos can be added as evidence so I will be uploading the screen recording.


Are the 4 points below alongside the video enough for the appeal?
the expanded version was in a few posts above.

 1. Failure to Demonstrate Driver Liability: The operator, BaySentry Solutions, has failed to demonstrate that the individual they are pursuing is indeed the driver who may have been potentially liable for the charge.

2. Baysentry Solutions have no Standing or Authority to pursue charges nor form parking contracts

3. Disproportionate Penalty Amount: The amount demanded by BaySentry Solutions is a penalty and is grossly disproportionate to any legitimate interest.

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

KeithP

Most unusual to not see "the signs were rubbish" text in that list.
Are you sure you want to leave that section out of your PoPLA appeal?

Coupon-mad

Agreed.

Point 3 has no legs so add instead the crappy signage template from the 3rd post of the NEWBIES thread.

Community1234

Coupon-mad said:

Agreed.

Point 3 has no legs so add instead the crappy signage template from the 3rd post of the NEWBIES thread.

Thanks to you and Keith P.

I have added the following point and put the full explanation in the body of the appeal:

3. 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


Have also added this point regarding the app error:

5. CITIPARK app failure

Included with this appeal is a screen recording of an attempt to make a payment for the parking session. It clearly shows the correct vehicle registration entered and the correct parking location being selected. It also shows the failure of the parking application as the parking session does not load up. Numerous attempts are made to no avail. If the app was functioning as it should have the parking session associated with the vehicle registration should have displayed the time spent in the car park and the amount owed, a payment would then have been made. 

My points of appeal are now:

1. Failure to Demonstrate Driver Liability: The operator, BaySentry Solutions, has failed to demonstrate that the individual they are pursuing is indeed the driver who may have been potentially liable for the charge.

2. Baysentry Solutions have no Standing or Authority to pursue charges nor form parking contracts

3. 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

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

5. CITIPARK app failure