Permit Bay - Unpermitted

hopscotch69

Hi there. Apologies for this. I have read the newbies. I have tried to understand everything but my head is mush!. Short story Long. The driver went to york early hours of the day. Purchased a parking ticket for 24 hours ,drove through the small car park couldn't find a suitable space in the first few numbered bays so parked in a numbered bay further along. The spaces had exact same line markings and numbering increasing in sequence so assumed they were all part of the same car park. This was circa 1am so dark. The next day (lunchtime ish) driver returned to car to find a note on windscreen written by resident saying they paid for these spaces and please do not park there. Apparently permit only space. Driver apologised to person said they hadn't realised and moved car to correct parking space. A month or so later, letter arrives in post to keeper saying   despite previous attempts no payment received etc. This was the first letter received so keeper emailed them stating that it was being treated as ntk and disputing charge etc (as per blue writing in newbies) . Received a response with copy of alleged previous letter sent and that it was reverting to original price and appeal could be made  within x days. Appealed using the same newbie blue writing appeal. That was rejected and now have 28 days to appeal with popla code.  This is where keeper and driver are stuck . Should the appeal be the same blue writing newbie appeal. Or should this now show the receipt for parking and an apology for parking in wrong bay. The time in wrong bay was approx 12 hours but the time from photographing of car and car being moved was only 2 hours. Can someone please help with what the next step is for either driver or keeper please. Obviously, driver was parked in wrong place but not intentionally. Why pay for parking and then not park in the right place? Of course, it was accidental. But how to prove this and dispute the excessive charge now incurred?

Coupon-mad

Which PPC?

Fruitcake

Don't use the blue template again. That's only for the initial appeal.

Construct a draft PoPLA appeal using all the points available to you from the third post of the NEWBIES and post it here for checking before you submit it.
Note that PoPLA codes last for 32 days. 

Your appeal should include where applicable the following, but not be limited to,

Not the landowner
No standing to issue charges in their own name
Inadequate signage.
PoFA breaches 
BPA CoP breaches

Get photos of the site and signage including all entrances/exits

Debszzzz2

Which PPC and location? In your POPLA appeal, you do not give away anything that gives the POPLA assessor reason to refuse your appeal. POPLA will only consider legal argument and breaches of the BPA CoP. Mitigation is not considered at all.

You use the "kitchen sink" approach to your POPLA appeal and include as many point as possible. You only have to win on one point and the PPC has to win on all the points. Have a look at the POPLA appeal thread to see what points appellants use.

Was the original NtK or NtD PoFA complaint? In other words, are you liable as both the driver and the keeper or just as the driver? Showing us the NtK suitable redacted but showing all dates would help.

Also, signage has got to be a major point as it seems obvious that it must have been inadequate if you parked in the wrong spot without knowing. Have you got any photos of the location or is it visible on Google Street View?

hopscotch69

Just some quick responses. 
Minster Baywatch
York Priory Street 
The permit only signage totally visible in the pics from them.
Keepers car is literally right next to signage. BUT it was pitch black (ie middle of night when they parked) . Driver doesn't know how signage was missed but they bought a ticket and then parked in a numbered bay. It just so happens that in this car park bays 1-10 (eg) are the car park bays and 11-20 (eg) are permit only. That wasn't something they thought about as they drove into a car park and paid and assumed all was good. It was only when going to the car the next day that they were aware of their mistake and moved the car immediately. . 
I do think the original ntk is pofa compliant. 
Neither driver nor keeper are from the area where this happened - visiting only - so not able to get pictures unless visit again. Will try and see what can get off google images. 
Thanks for all help 

Coupon-mad

Can you go get a pic of the signs this weekend or so? MB signs sometimes have the name Bransby Wilson instead of MB

hopscotch69

this is the car park the driver thought they were parking in. www.priorystreetcentre.org.uk/access/parking/

They have never visited York before and live in a rural area so not at all familiar with permit parking. I'm not making excuses for them just trying to explain how it happened. 
The information on that web page is ' hindsight info' as they did not view it until the bill came through the post.  

They parked in bay 17 i think when they couldn't fit into another space after paying.  Is any of this helpful?

Coupon-mad

What bill?  There's no bill.

Le_Kirk

hopscotch69 said:

this is the car park the driver thought they were parking in. www.priorystreetcentre.org.uk/access/parking/

They have never visited York before and live in a rural area so not at all familiar with permit parking. I'm not making excuses for them just trying to explain how it happened. 
The information on that web page is ' hindsight info' as they did not view it until the bill came through the post.  

They parked in bay 17 i think when they couldn't fit into another space after paying.  Is any of this helpful?

The website states that it is a 10 bay pay&display so one could be forgiven for thinking bays 1-10 were for P&D, also it states staff parking is ANPR monitored,  do not park here,  with no mention of any particular bays, numbered or otherwise! 

hopscotch69

POPLA Verification Code: xxx

I write to you to lodge a formal appeal against a Parking Charge Notice (PCN) issued by Minster Baywatch, 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 based on the below points:

 

1.Failure to Demonstrate Keeper or Driver Liability

2. Minster Baywatch 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.

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 Keeper Liability: The operator, Minster Baywatch,  alleges the contravention took place on the 21/12/23 and is further alleging keeper liability under the pofa 2012 so this notice should have arrived by the 4th January 2024. It did not. The earliest I as the keeper was aware of any charges issued against me was when I received a letter dated 26/2/24 which is well outside of the scope of contact. My address has not changed and DVLA had the correct address at the time of the alleged offence.

1. Failure to demonstrate Driver Liability: 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. 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. Minster Baywatch have no Standing or Authority to pursue charges nor form parking contracts

 

Minster Baywatch have no Standing or Authority to form parking contracts or enforce them in court in their own name Minster Baywatch have no authority to issue parking contracts nor to pursue to court as required in the BPA code of practice. The Minster Baywatch Contract should be with the Landowner and not a company leasing the land. Minster Baywatch 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. The signs in this car park are not prominent, clear or legible from all parking spaces

The signage and information held on the car park is confusing and unclear. It is in conflict with its own website data. There are some signs that prohibit overnight parking whilst others allow for it. You can pay for 24 hour parking but the signage in some areas states that 24 hour parking is prohibited.

The signage is attributed to Bransby Wilson but Minster Baywatch state the alleged contract is with them.

Some signs state permit parking only. Yet others state permit parking 7am to 6pm weekdays only.

None of these permit parking signs are lit or legible from all angles and in the dark.

There was no clear signage differentiating between the start/end of the car park’s bays and those (apparently) immediately outside of the car park. Furthermore, the lines that constituted the car park bays were drawn with the exact same colour, consistency, and pattern of white lines – and, what’s more, they were numbered *in sequence* with the bays in the car park. To be clear, this meant that the car park’s bays were numbered from, say, 1-15, and the bays that were (apparently) immediately outside the car park were then numbered from 16-25. Not only were the bays numbered in sequence, but the numbers also themselves were of the exact same style, colour, and pattern for the bays internal to and immediately external to the car park.

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

 

The driver did purchase a 24 hour ticket for the car park using the ringgo app as advised by the signage at the entrance. They then proceeded to a marked bay and parked. There was no requirement of them to display any tickets and Bransby Wilson would be aware of this purchase.

 

On the basis of the above and that a ticket was purchased I request that this charge be cancelled.

- thoughts please, thanks

Coupon-mad

Your first point should be the contract on the sign is offered & managed by Bransby Wilson.  No contract with Minster Baywatch.  Attach the written judgment we got last year from a Judge about this.  You'll have to search for it.