Private PCN - Alleged overstay by 7 mins. Disregarded appeal, suggesting to pay or appeal to POPLA

Jack_Bauer

Hi,

The local gym has a partnership with the local car park allowing for gym attendees to park for 1 hour and 30 minutes for free whilst attending the gym. As the registered owner of the vehicle, I've received a PCN from BaySentry Solution (BPA Registered) representing CitiPark carpark, requesting £100, £60 if paid within 14 days.

They've provided details of the charge, including a number plate and arrival and departure where the total time accounts to 1 hour 37 minutes and 14seconds.

The alleged contravention date was 2/3/2024 and the date of notice was 19/02/2023. This is 17 days. I received this letter today (22/3/2024), 20 days after the alleged contravention date and 3 days after the date of notice.

They have an online appeals process  to which I replied the following:

Re PCN number: xxxxx

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 as well as your images of the vehicle. 

If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it. 

If the allegation concerns a VRM, you must include proof by means of redacted VRM logs if you are alleging a keying error, you must prove it wasn't minor. 

If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. Lastly, the PCN fails to meet the POFA requirements of 14 days for receipt-deemed date.

I have since received the following response:

Dear xxxxx
Re: Parking Charge Notice Number xxxxx (Vehicle: xxxxx)
Site: xxxxx
Issue date: xxxxx
POPLA Code: xxxxx

Thank you for your appeal against the above Parking Charge Notice (PCN). We have carefully considered your appeal, however, on this occasion, the appeal has been rejected for the following reason(s):
The terms and conditions of parking are clearly stated on signs prominently displayed in this area. CitiPark offers multiple payment methods at the Clements Road car park. App or paystation. CitiPark offers a 24/7 control centre who can assist with payment issues if required. We believe there was no valid electronic permit paid for via the payable service therefore we believe the charge notice was issued correctly and are upholding it.

You have now reached the end of our internal appeals procedure and therefore you now have two options; you can either pay or appeal to POPLA - you cannot do both:

1. Pay the total amount due as stated on this document online at baysentry.ec6pay.com and follow the instructions online or via our secure automated payment line on 0333 023 0187.
The total outstanding on the date of this letter is £100 to be paid by 14.05.2024.
Please note, failure to make payment may result in increased charges.

2. Or, appeal to an Independent Appeals Service, POPLA (Parking on Private Land Appeals) using the POPLA Reference code provided above. Please note, should you decide to appeal to POPLA, the option to pay a discounted amount will no longer be available and the full amount of the PCN will become due if you are unsuccessful.

I don't know what to do next. Any suggestion on what my next steps are? Thanks in advance!

Brie

The alleged contravention date was 2/3/2024 and the date of notice was 19/02/2023. This is 17 days. I received this letter today (22/3/2024), 20 days after the alleged contravention date and 3 days after the date of notice.

Do you mean the date on the notice was 19/3/24?

Don't think the time it took the notice to get to you is of any consequence.  3 days is quite speedy for post these days.

Fruitcake

Please confirm your dates as they don't make sense unless you or the PPC has a time machine.

Plan A is always a complaint from the keeper to the landowner and the keeper's MP.

Plan B is to appeal, which you have already done.

Plan C is an appeal to PoPLA using all the standard points available to you from the third post of the sticky Announcement for NEWBIES. These should include but not be limited to,

1) Non-PoFA compliant NTK/NTH (if appropriate)
2) Not the driver/not the person who may be liable for the charge (if non-PoFA)
3) Not the landowner/ No landowner contract
4) No standing to issue charges in their own name
5) Inadequate signage

6) BPA CoP failures (if appropriate)

Jack_Bauer

Apologies, the following is correct regarding the dates:

The alleged contravention date was 2/3/2024 and the date of notice was 19/03/2024. This is 17 days. I received the letter on letter today (22/3/2024), 20 days after the alleged contravention date and 3 days after the date of notice.

Gr1pr

Date of the rejection was . ?

The popla code for appealing expires on day 33 following the rejection, bearing in mind that the contravention was in March and its now May 

Fruitcake

Jack_Bauer said:

Apologies, the following is correct regarding the dates:

The alleged contravention date was 2/3/2024 and the date of notice was 19/03/2024. This is 17 days. I received the letter on letter today (22/3/2024), 20 days after the alleged contravention date and 3 days after the date of notice.

That still doesn't make sense. Whatever the correct dates, PoPLA codes last 32 - 33 days from the date of the rejection letter. If you are outside that period you will be unable to appeal to PoPLA, which is a shame because if the NTK was issued 17 days after the date of the alleged event, then the keeper cannot be held liable.

There is however no reason to pay.

Jack_Bauer

Gr1pr said:

Date of the rejection was . ?

The popla code for appealing expires on day 33 following the rejection, bearing in mind that the contravention was in March and its now May 

The appeal rejection was dated and received on 16/4/2024 by email. The letter states that the £100 must be paid by 14/5/2024 or appeal to POPLA.

Does that mean the POPLA code expires this Sunday on 19/5/2024?

Gr1pr

Sunday is actually tomorrow, but the 19th is a week later, so get it done and uploaded to Popla by Friday 17th , choosing OTHER . Fruitcake told you what to base the popla appeal on earlier today 

KeithP

Jack_Bauer said:

Does that mean the POPLA code expires this Sunday on 19/5/2024?

You're not very good with dates are you?   

This Sunday, i.e. tomorrow, is 12th May 2024.

You must get your PoPLA appeal filed before 19th May 2024. Suggest you make your deadline this coming Friday - 17th May.

Coupon-mad

Brie said:

The alleged contravention date was 2/3/2024 and the date of notice was 19/02/2024. This is 17 days. I received this letter today (22/3/2024), 20 days after the alleged contravention date and 3 days after the date of notice.

Do you mean the date on the notice was 19/3/24?

Don't think the time it took the notice to get to you is of any consequence.  3 days is quite speedy for post these days.

But the OP will easily win at POPLA anyway on 3 points:

- no keeper liability (non-POFA NTK)

- breach of the BPA CoP: no 10 minute grace period allowed, given gym members are allowed 1 hr 30, and 

- if the operator is saying (perhaps) that the VRM wasn't entered on the gym keypad then that's a 'keying error' which they failed to tell the appellant about.  Breach of the BPA CoP on 'keying errors' (if that is their case, but who knows, because they haven't shown the VRM log from the gym system).

Jack_Bauer

Hi all,

Thank you very much for your feedback and advice. I have taken it on board and spent many hours traversing the forums and ultimately drafting a POPLA appeal which I've written below. I have 1 day left until my POPLA code expires (this Sunday) so I would greatly appreciate any feedback on what I've come up with. To expedite this, I've highlighted the bits I've written myself and not copied verbatim from other threads in bold.

Vehicle Registration: [xxxx]
POPLA Reference: [xxxx]

BaySentry Solutions PCN Reference:

I, the registered keeper of this vehicle, received a letter from BaySentry Solutions (operator) dated 19/03/2024 acting as a Parking Charge Notice (PCN) to Keeper (NTK), alleging a parking contravention on 02/03/2024.

The PCN received was a vague template, alleging my vehicle was parked without a valid parking session/electronic permit however provided no explanation of the specifics of the allegation. This includes but isn’t limited to:

• If the allegation concerns a PDT machine
• If the allegation concerns a VRM
• If the allegation involves an alleged overstay of minutes

I submitted an appeal to the operator denying liability and requesting a full explanation of the specific allegation and supplementary evidence which was rejected.

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1)      NTK was received more than 14 days after the alleged incident.

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)      Failure to provide evidence of a major keying error.

4)      Grace Period: BPA Code of Practice –non-compliance

5)      No Evidence of Landowner Authority-the operator is put to strict proof of full compliance with the BPA Code of Practice

 

NTK was received more than 14 days after the alleged incident.

The operator has failed to comply with the requirements of Schedule 4 of The Protection of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days. POFA 2012 schedule 4, paragraph 9 notes:

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) 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.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so "given" for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose, "working day" means any day other than a Saturday, Sunday or a public holiday in England and Wales.

The NTK notes a "Date of Notice" of 19/03/2024, and "Date of Contravention” of "02/03/2024". The difference between these two days is 17 days. The letter itself was received on 25/03/2024, 23 days after the alleged contravention.

The operator has therefore failed to act in time for keeper liability to apply.

The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 POFA.

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.''

 

Failure to provide evidence of a major keying error.

The car park in which the alleged contravention occurred has a partnership with the local gym whereby gym members benefit from 90 minutes free parking if the vehicle is registered to the parking whitelist using the tablet in the gym.

The driver of the vehicle is confident they entered the vehicle registration into the tablet on the gym premises and therefore obtained a valid electronic permit.

Section 17 of the BPA Code of Practice covers the steps a parking operator should take when a keying error occurs The BPA Code recognises that keying errors can be grouped into 2 main areas.

A) Minor Keying Errors

Examples of a minor keying error could include:

• 0 instead of o
• I instead of L
• 1 instead of I
• Up to one letter wrong, removed, or swapped.
• Up to one number wrong, removed, or swapped.
• Numbers and/or letters in the wrong order (but where the correct registration is still recognisable)

These are minor errors where up to one character has been entered incorrectly, or where the registration has been entered in the wrong order. If a typing error such as this leads to a PCN being issued and the motorist appeals, the PCN must be cancelled at the first stage of appeal.

Major Keying Errors

• Examples of a major keying error could include:
• Motorist entered their spouse’s car registration.
• Motorist entered something completely unrelated to their registration.
• Motorist made multiple keying errors (beyond one character being entered incorrectly)
• Motorist has only entered a small part of their VRM, for example the first three digits.

In these instances, we would expect that such errors are dealt with appropriately at the first appeal stage, especially if it can be proven that the motorist has paid for the parking event or that the motorist attempted to enter their VRM or were a legitimate user of the car park (eg a hospital patient or a patron of a restaurant).

It is appreciated that in issuing a PCN in these instances, the operator will have incurred charges including but not limited to the DVLA fee and other processing costs therefore we believe that it is reasonable to seek to recover some of these costs by making a modest charge to the motorist of no more than £20 for a 14-day period from when the keying error was identified before reverting to the charge amount at the point of appeal.

As the keeper of the vehicle, I clearly outlined in the first appeal stage that if the allegation concerns a VRM, the operator must include proof by means of redacted VRM logs if they are alleging a keying error.

In the appeal response, the operator made no attempt to look for partial VRMs and failed to offer settlement at £20 for any potential major keying error.

The operator has therefore failed to comply with the mandatory requirements of Section 17 of the BPA Code of Practice.

 

Grace Period: BPA Code of Practice – non-compliance

BPA’s Code of Practice (13.3) states that: “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.”

It is therefore argued that the duration of the visit in question (which BaySentry Solutions allege was 97 minutes, and 14 seconds), factoring in the 90 minutes defined parking period for gym members, amounting to a 7 minutes and 14 seconds overstay, the operator has failed to comply with the mandatory requirements of Section 17 of the BPA Code of Practice by not offering a minimum 10 minute grace period before issuing a PCN.

 

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, I require that they produce a full copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner in fact has the right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put up some signs and issue Parking Charge Notices, that the agent is also authorised 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 statements 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.

Section 7 of the BPA Code of Practice defines the mandatory requirements and I put BaySentry Solutions 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