Unfair CEL PCN?

ugwaraich

Hi all,
         I received an NTK from CEL for a parking that I regularly use. I didn't realise until I received this PCN that the parking was controlled by the ANPR. There is no clear signage to state that the parking is controlled by ANPR. On one of the board on the entrance to the car park in a very small font they do state that the "Site managed using ANPR and manual patrols by CEL" but this text cannot be read by drivers in the car whilst driving in as it is way too small and you have to go upto the sign board to read it.

Anyways, long story short I paid for parking from 15:16 to 16:13 which was only £0.50 using phoneandpay app that I usually use. All the signage on the site states that you could park for 2 hours for £0.50. But the problem is I stupidly entered 15:16 to 16:13, I should have gone 14:50 to 16:49. Anyways, the PCN states that I have over stayed and the time the PCN states is also well within the 2 hour duration which is from 14:50 to 16:31. The PCN states that "Payment not made in accordance with notified terms" but as per the signage/notified terms on site it was £0.50 for 2 hours. I believe in my view since I paid for £0.50 as per the signage onsite for 2 hours, regardless of what timing I entered in the phoneandpay app I should not be given a PCN as at no point I exceeded 2 hours duration.

Has anyone gone through this situation or do I have a chance here to make an appeal or use any other means to overturn this Parking Charge Notice?

Your help is greatly appreciated.

Fruitcake

Plan A is always a complaint from the keeper to the landowner and the keeper's MP. Do not admit anything other than payment was made for the time the vehicle was parked. Where did the alleged event occur? It may have cropped up here before.

Plan B is to appeal using the template in blue text you will find in the sticky Announcement for NEWBIES. Send it unaltered from the keeper. If the NTK was not PoFA compliant, then add a one liner to that effect, but do not give away the driver's identity.

Plan C is an appeal to PoPLA if Plans A and B fail. Information on how to appeal is also in the NEWBIES. Get photos of the site and signage in preparation.

Coupon-mad

We agree.  Easy to win at POPLA, surely.

ugwaraich

hello guys, thank you for your responses. CEL have now rejected my appeal with the standard malarkey.
I have been given POPLA code to appeal.

I have few questions:

1) I have not declared the name of the driver.
2) I want to appeal to POPLA on the ground that the driver actually paid for the parking duration which is said to be 2 hours on the signage, and the PCN clearly states that the car was parked for less than 2 hours but the trouble here is that the driver paid for parking through phoneandpay app. The app receipt shows the keeper name and address for the payment. So by using that receipt will I be shooting myself in the foot by not naming the driver but my name being on the online receipt?
3) In my appeal to CEL I also mentioned which is true that the PCN was received on 16th day of the parking incident at my address. They clearly ignored it and they used the wording that the pcn was "issued" within 14 days. However, the wording on POFA 9.4.b clearly states that "sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period" so if the notice was delivered on 16th day for which obviously I have no proof and neither do CEL have a proof that it was delivered within 14 days do I have any solid ground here?

For guidance the infringement occured on e.g. no 6th and the pcn issue date was 17th and then it was received on 22nd.

Here is the copy of my appeal to CEL that has been rejected:

"I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date.

If the allegation involves an alleged overstay of minutes, your evidence must include the record of payments made and an explanation of the reason for the PCN, because your Notice does not explain it. You must also explain the actual grace period agreed by the landowner.

 I strongly believe the PCN was unfairly and unlawfully issued. I will not be paying your demand for payment for the following reasons: 

• The alleged contravention did not occur

Quite simply, the CEL got it wrong and the driver made the payment according to the notified terms. This is due to the fact that the terms stated on the sign boards in the XXXXX Car Park clearly state that the charges are £0.70 for 2 hours. See attached photographic evidence of the boards stating the terms. The driver of the vehicle made a payment of £0.70 through phoneandpay app (see attached receipt of payment). The duration stated on the PCN is from 16:52 to 18:33 which is 1 hour and 41 minutes clearly less than 2 hours allowed for the £0.70 payment made. Therefore, it is evident that the driver made the correct payment according to the notified terms.

 

• The charge is disproportionate and not commercially justifiable

The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner. A £100 parking charge is disproportionate and excessive in comparison to a £0.70 charge for 2 hour duration and in breach of paragraph 20.1 & 20.5 of the British Parking Association Ltd AOS Code of Practice Version 9 - February 2024.

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

 The BPA Code of Practice supports the need for strict compliance (paragraph 22.6 refers).

 CEL has however failed to comply with the statutory requirements as follows;

 1.     CEL have failed to comply with paragraph 9(4) and 9(5) of Schedule 4 of the PoFA 2012 in that CEL failed to issue the Notice to Keeper within the “relevant period” of 14 days. The alleged infringement occurred on the 6th of March 2024 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper was issued on 17th of March 2024 which was delivered on 22nd of March 2024 through post which is 16 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA paragraph 9(4) & 9 (5) indicates that the Notice to Keeper must be delivered to the registered keeper’s address within the relevant period of not more than 14 days after the car allegedly infringed the car park terms and conditions.

 2.     In regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst your ‘Notice to Keeper’ has indicated that you require a payment to be made to CEL, there is no specific identification of the “Creditor”, who may, in law, be CEL or some other party. PoFA requires a ‘Notice to Keeper’ to have words to that effect i-e “The Creditor is….” The wording of the paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the Creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom they are legally contracted. 

3.     CEL has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions. 

4.     Next, CEL is dealing with its claim in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The document that you have (incorrectly) titled as a ‘Parking Charge Notice’ is prescribed under PoFA as a ‘Notice to Keeper’. 

CEL would have been well aware of these facts and laws when it took the decision to send out the Notice to Keeper. CEL have misrepresented the legal position in the full knowledge that no such keeper liability existed. 

I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.

If however, you reject this challenge, then, in accordance with the BPA AOS Code of Practice 23.12, you must ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter."

Apologies my case seems to be unique as I can't find similar POPLA appeal on the same grounds where the driver already paid them the correct parking ticket and yet I got a NTK.

Is there any advice which POPLA appeal I can use and if I can use the grounds mentioned above?

Cheers 

ugwaraich

oh and one more important item I forgot to mention, on question 2 in the beginning of my previous post above. I forgot to mention that the phoneandpay parking receipt shows times as 17:18 to 18:15. So although the driver overstayed this period but the duration the driver stayed was still 1hour 41 minutes which is still less than 2 hours which is mentioned on the signage throughout the car park.

KeithP

ugwaraich said:

1) I have not declared the name of the driver.
2) I want to appeal to POPLA on the ground that the driver actually paid for the parking duration which is said to be 2 hours on the signage, and the PCN clearly states that the car was parked for less than 2 hours but the trouble here is that the driver paid for parking through phoneandpay app. The app receipt shows the keeper name and address for the payment. So by using that receipt will I be shooting myself in the foot by not naming the driver but my name being on the online receipt?

Does the vehicle have more than one seat in it?

Could it be that the passenger paid for the parking using the app?

ugwaraich

KeithP said:

ugwaraich said:

1) I have not declared the name of the driver.
2) I want to appeal to POPLA on the ground that the driver actually paid for the parking duration which is said to be 2 hours on the signage, and the PCN clearly states that the car was parked for less than 2 hours but the trouble here is that the driver paid for parking through phoneandpay app. The app receipt shows the keeper name and address for the payment. So by using that receipt will I be shooting myself in the foot by not naming the driver but my name being on the online receipt?

Does the vehicle have more than one seat in it?

Could it be that the passenger paid for the parking using the app?

The app receipt actually shows the name, payment card details and address of the payee, so not sure if that is going to fly. Any more ideas?

ugwaraich

The image of the PCN front and back in case anyone can pick anything interesting that I am not able to:

htxps://ibb.co/6NCdMCq

htxps://ibb.co/F5c90Nj

Coupon-mad

I don't understand.  "Payee" means the party receiving the money, not the payer. 

But I think you are missing the point. Think about what @KeithP meant...

KeithP

ugwaraich said:

KeithP said:

ugwaraich said:

1) I have not declared the name of the driver.
2) I want to appeal to POPLA on the ground that the driver actually paid for the parking duration which is said to be 2 hours on the signage, and the PCN clearly states that the car was parked for less than 2 hours but the trouble here is that the driver paid for parking through phoneandpay app. The app receipt shows the keeper name and address for the payment. So by using that receipt will I be shooting myself in the foot by not naming the driver but my name being on the online receipt?

Does the vehicle have more than one seat in it?

Could it be that the passenger paid for the parking using the app?

The app receipt actually shows the name, payment card details and address of the payee, so not sure if that is going to fly. Any more ideas?

Of course it does, but it doesn't say that the person paying was the driver, does it?

ugwaraich

Coupon-mad said:

I don't understand.  "Payee" means the party receiving the money, not the payer. 

But I think you are missing the point. Think about what @KeithP meant...

sorry my bad, I meant the payer.

I understand what @KeithP meant but what if the receipt is provided to POPLA as part of appeal and that proves otherwise?