Azure Parking tickets for stopping a few mins in car park

Grizebeck

sidsnoteveret said:

I think 1505grandad is correct, that part does end with inverted commas. Why not consider waiting the seven days and see if Azure Parking follow through with their threat? They've reached rock bottom, let them keep digging?

No you don't need to wait 7 days. Why do they need to wait for further meaningless debt recovery letters.
@Coupon-mad is right.

Danny30

Received a reply back from Azure. Another strange response making assumptions on who is the driver was, but a least they now said they will send back an appeal response which I presume will include Popla codes.

Coupon-mad

Oh, so it's notoriously horrific 'outrageous scam' supporting third party ZZPS who are doing all this.  Should have guessed!

Danny30

Hi, so I received the Popla codes finally. Please can you let me know if the below appeal looks okay? It's a bit long and contains the Golden Ticket point at the start which I assume should be an automatic win anyway.

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I am the registered keeper of vehicle registration:  ******* and I wish to appeal a recent parking charge number:      using POPLA appeal code:  xxxxxxxxxxxxxx      . My appeal was refused by Initial Parking on the grounds stated in their appeal reply letter dated ...............

I am appealing this penalty on the grounds stated below and I respectfully ask that all points are taken into consideration.

1.      This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

 

2.      No Keeper Liability

 

3.      No contract with the Landowner

 

4.      The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

 

5.       Grace Period: BPA Code of Practice–non-compliance

 

6.      There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location nor boundary of the venue.

 

7.      The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

 

1. This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Azure Parking Ltd issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “No parking”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. Azure have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording.

2.  No Keeper Liability.

A compliant Notice to Keeper has not been served. I assert that Azure Parking Ltd have failed to

comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give the invitation to keeper in the format prescribed by section 9 (2) (e) of the Act. Azure Parking Ltd cannot, therefore, transfer liability for the alleged contravention from the driver at the time to me (the registered keeper). 

Danny30

3. No Landowner Authority

There is no evidence of Landowner Authority - the operator (Azure Parking Ltd) 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 aforementioned BPA Code of Practice) 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 aforementioned BPA Code of Practice 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”

Additionally, any such document produced by Azure Parking Ltd must be compliant with the legal requirements of Companies House.

In these circumstances I request that my appeal is upheld and that the Parking Charge Notice is cancelled,

4. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

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

5. Grace Period: BPA Code of Practice–non-compliance

The vehicle in question was not at any point parked in the car park as alleged by Azure Parking Ltd, nor was the vehicle stationary on any of the designated car parking spaces but instead was stopped temporarily for a few minutes beside the access area in the car park while the driver of the vehicle was waiting in the car.  This would render the parking charge incorrect as this would be classed as a drop off.

 

1. Grace Period: BPA Code of Practice–

non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the

end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not

normally permitted they must have the chance to read the terms and

conditions before they enter into the ‘parking contract’ with you. If, having

had that opportunity, they decide not to park but choose to leave the car park, you

must provide them with a reasonable grace period to leave, as they will not be

bound by your parking contract.”

BPA’s Code of Practice (13.2) states that:

“If the parking location is one where parking is normally permitted, you must allow

the driver a reasonable grace period in addition to the parking event before

enforcement action is taken. In such instances the grace period must be a

minimum of 10 minutes.”

BPA’s Code of Practice (13.4) states that:

“You should allow the driver a reasonable period to leave the private car park

after the parking contract has ended, before you take enforcement action. If the

location is one where parking is normally permitted, the Grace Period at the end

of the parking period should be a minimum of 10 minutes.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to

enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and

(13.4) do not apply in this case (it should be made clear - a contract was never

entered in to), it is reasonable to suggest that the minimum of 10 minutes grace

period each should apply to (13.1) BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association

(BPA):

 

3.

 

“The BPA’s guidance specifically says that there must be sufficient time for the

motorist to park their car, observe the signs, decide whether they want to comply

with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but

another person 10 minutes depending on various factors, not limited to disability.”

It is therefore argued that the duration of visit in question (which is less than the 10 minutes mentioned above) is not an unreasonable grace period, given:

 a) The site is not well lit and relies on nearby street lighting as its primary

source of lighting.

b) The lack of sufficient entrance signs and specific parking-terms signage

throughout the car park in question (non- compliance with BPA Code of Practice

18.2 and 18.3) and the impact of that upon time taken to locate signage prior to

entering into a contract.

c) There is no marked parking bay through out the venue which causes

confusion to the applicability of the Azure Parking Ltd’s contract, that was never

entered into in the first place.

 

6. There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location

BPA’s Code of Practice (18.2) states:

“Entrance signs play an important part in establishing a parking contract and

deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.” BPA’s Code of Practice (18.3) states:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

BPA’s Code of Practice (Appendix states:

“If you think there are other circumstances where it is impractical or undesirable to have an entrance sign, you must tell us in advance and get our approval to amend the sign or not have one.”

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material”

 

Figure 1 below shows the entrance to the road accessing the car park and there is no signage at all warning about any parking charges at the car park in question until you drive into the road and into the car park at which point that is only small signage to the drivers right side which is barely visible as can be seen by the images, The signage is very small,  obscure and can clearly easily be missed when driving into the car park itself. The lack of any warning at the entrance to the alley is clear to see and again doesn’t allow the driver sufficient warning when approaching the car park a few metres further down.

FIGURE 1

Figure 2 shows the signage in the car park and as can be seen, it is very easily missed and not clear when approaching the car park.

From inside the car park itself, the only signage that can be seen is below and note that this is also not very prominent and can be easily missed when entering and having driven in the car park.

FIGURE 2

 

 

 

Figure 3 shows the only place in the car park that signage is present which is clearly illegible and not adequately sized and is only visible when going close up at which point a driver will be liable for a fine from Azure Parking.

 

 

 

 

(in relation to Figures 1, 2 & 3) regarding non-compliance with the BPA Code of Practice (18.3), specifically: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, the signs in the car park in question car do not clearly mention the parking charge which is hidden in small print. Large areas of this site are unsigned and there are no full terms displayed, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

 

7. No Evidence of Period Parked–NtK does not meet PoFA2012 requirements.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking / entering into a contract.

Furthermore, PoFA2012 Schedule4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

Azure Parking NtK simply claims “the vehicle was parked at 119 -123 High St, Edgware.

The NtK separately states that the vehicle “entered 119 -123 High St, Edgware  at 8.48am. At no stage do Azure Parking Ltd explicitly specify the“ period of parking to which the notice relates”, as required by PoFA 2012

Danny30

8. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

 

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private carparks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Azure Parking signs do not comply with these requirements because the car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

The Azure Parking ’main sign in the car park states

 “Azure Parking Ltd manage space availability with the use of ANPR CCTV cameras and/or regular patrols to record the number plates and images of vehicles parking on this site”.

Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. The only reference to Parking Charge Notices on the Azure Parking Ltd sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states

“you agree to pay a charge of £100 (reduced to £60 if paid within 14 days) to azure parking Ltd when unauthorised parking has taken place”.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68:Requirement for Transparency:(1)A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.(2)A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible. and Paragraph 69: Contract terms that may have different meanings:(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail. Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator 'fails to identify its commercial intent.

The Consumer Protection from Unfair Trading Regulations 2008 (legislation.gov.uk)

Misleading omissions: 6.-(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph(2)-

(a)    The commercial practice omits material information,

(b)    The commercial practice hides material information,

(c)    (the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d)    The commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.'

 

Le_Kirk

Your second sentence states it is a penalty; is it or just a parking charge notice?

Danny30

Le_Kirk said:

Your second sentence states it is a penalty; is it or just a parking charge notice?

Would that matter with regards to Popla appeal? I assumed that it is considered a penalty for Popla anyway. 

1505grandad

"2.  No Keeper Liability.

A compliant Notice to Keeper has not been served. I assert that Initial Parking have failed to..."  -  please make sure that your copy & paste is relevant to your case. 

Danny30

1505grandad said:

"2.  No Keeper Liability.

A compliant Notice to Keeper has not been served. I assert that Initial Parking have failed to..."  -  please make sure that your copy & paste is relevant to your case. 

Well spotted, fixed now. I knew I would miss one. Thank you.