Flamborough North Landing

Joptito

Should have this one covered (The NTH and NTK are messed up, newbies thread should suffice), but wanted to post as Flamborough is notorious for charging people with a similar circumstance to this in the hope this gives them confidence not to just pay up: The driver used their card to pay at the machine for parking, and a paper ticket was issued however their machine didn't actually charge the card (confirmed through the driver checking their bank statement), and this was issued. Unfortunately the paper ticket was not kept to prove this (but is actually visible on the 'exit' photo)! DO NOT PAY!

Same place also referenced here:
https://forums.moneysavingexpert.com/discussion/6524777/private-land-carparking-ticket-flamborough-head-yorkshire

Any further tips on appealing that you can spot are appreciated.

The photos have been resized from their original form - are there any historical cases of this being a winning reason? 

Coupon-mad

What has happened is, the driver paid & got a ticket printed but the system failed to actually 'take' the payment from the card within 24/48 hours, so the payment lapsed.

Seen that from NCP and others.

Your bank can see the failed transaction and their confirmation by email of what happened would be useful if this went to court.

But it won't because it's a NTH case and there were no enclosures with that NTH (never are). Easy win by copying any NTH appeal.

Joptito

They've rejected the appeal with a load of nothing, but now on the grounds that it was because the parking ticket purchased had expired - news to me! (is that different to "failed to make a valid payment")? They've failed to address all of the winning arguments. Amusingly, they even sent full pictures, helping to prove my point that the ones initially issued are resized!

I take it I now have to turn my initial appeal (below) into a more formal argument to POPLA via some of the templates on here?

Is it worth me responding to the parking company to ask for further evidence to me in order to appeal (e.g. the time that they claim the ticket started and ended) or is that a waste of time?

The initial appeal is below:

I am the vehicle's hirer and keeper for the purpose of the corresponding definitions under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) now it is proven that in this instance, the registered keeper is not the "keeper" (as defined under POFA), Britannia Parking has no reason to contact [hire company] again regarding this PCN.

I challenge this ‘PCN’ and subsequently request all future correspondence be sent directly to myself at my (only) current address:

X

The ‘PCN’ issued has failed (at a minimum) to comply with POFA 2012 9(4)(a) and 9(4)(b), thus is invalid. Even if this criteria had been met, your notice has failed to comply with POFA 2012 14(2) and 14(3).

You are therefore unable to rely on the provisions of POFA 2012 to hold me liable as keeper.

Furthermore, the images on your notice have been digitally altered, resized, and without date & time which is against the BPA Code of Conduct (21.5a), of which Britannia Parking is a member. This alone has won cases at POPLA, for example in case 2413353469.

Finally, the driver actually went out of their way to pay for parking as one of your machines was broken, causing them to walk a long distance, without adequate signage about the terms of parking, and a paper ticket was issued to them. This paper ticket is actually visible on the dashboard of the car as the driver leaves the car park. One hopes that it is not common practice to harass as a result of a paying customer.

In summary:

• I was not the driver of the vehicle.

• I am not obliged to disclose the driver of the vehicle and that does not affect my liability in this matter.

• As you have failed to act in accordance with POFA 2012 and the BPA Code of Conduct, you are unable to use the Act to hold me liable.

• You will need to pursue this claim with the driver once you have identified them.

Thank you for your cooperation and I look forward to receiving your response that you are cancelling the speculative PCN within the relevant timescales specified under the British Parking Association Ltd Code of Practice.

Coupon-mad

Is it worth me responding to the parking company to ask for further evidence to me in order to appeal (e.g. the time that they claim the ticket started and ended)

No.

Just do a POPLA appeal as hirer/lessee.

There are long template points in the NEWBIES thread but I reckon you could do a shorter one and easily just adapt the above appeal, expanding about the lack of enclosures with the NTH so that the Assessor gets it.

Joptito

Thanks, I'm not sure I've kept it short in the end! Hopefully covers what is needed. Any comments before I send this off?

I think I'll take it up with the MP too as the car park is in Sir Greg Knights (former) constituency.

POPLA Code:

Car Registration:

I am the hirer of this vehicle and following the receipt of a letter titled Notice to Hirer, and an appeal to the operator, I am writing to you to lodge a formal appeal to assert that I am not liable for the alleged parking charge on the following grounds:

1. Notice to Hirer (NtH) is non-compliant with POFA 2012 - enclosures not provided.

2. Notice to Keeper (NtK) is non-compliant with POFA 2012.

3. Images on NtK and NtH are digitally altered, resized and trimmed/cropped.

4. Insufficient authorisation set out.

5. Unreliable payment machines - the fault of the operator.

6. The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis.

If just one of these points is upheld, then the charge is invalid and the appeal should be upheld. Please note, I was not the driver of the vehicle.

Notice to Hirer is non-compliant with POFA 2012

POFA 2012 outlines very strict criteria outlining how a notice should be issued, which the operator has not followed, thus rendering this an invalid PCN, regardless of any of the other grounds raised in this appeal.

The creditor has not given a copy of the relevant documents mentioned in POFA 2012:

14 (2) The conditions are that—

1. the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

The documents specified in paragraph 13(2) were not provided - no signed statement of from the vehicle-hire firm, no copy of the hire agreement, no statement of liability:

13 (2) … the creditor is given—

(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b)a copy of the hire agreement; and

(c)a copy of a statement of liability signed by the hirer under that hire agreement.

Furthermore, the following requirement was also not met:

13(3) The statement of liability required by sub-paragraph (2)(c) must—

(a)contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer;

Failure to comply with these POFA 2012, means the alleged parking charge is not valid, as the operator relies upon this to establish a meaningful contract. They have failed to do so in this case.

Notice to Keeper is non-compliant with POFA 2012

POFA 2012 outlines very strict criteria outlining how a notice should be issued, which the operator has not followed, thus rendering this an invalid PCN, regardless of any of the other grounds raised in this appeal.

In addition to the following section on the images displayed, the Notice to Keeper was delivered to Arval, who by POFA 2012 are the “Hire Company” for this vehicle. However, the Hire Company is not the “Keeper” of the vehicle as defined by POFA 2012, thus violating the following paragraph:

9 (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.

We refer to the definition of Keeper as follows: “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper;

In this case it is clear that the Hire Company would not be the “Keeper” of the vehicle as they have not had possession of the vehicle for some time. This means that the NtK was not delivered to the “Keeper” of the vehicle as required by 9(4) and is thus invalid.

Images on the NtK and NtH are digitally altered, resized and trimmed/cropped

The images provided on the NtK and on the NtH were digitally altered, resized and cropped/trimmed, with dates and times removed. This is a breach of the following:

21.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered

Both the NtK and NtH are invalid on this point alone, as seen in POPLA case 2413353469.

Insufficient authorisation set out

Regarding Section 7.3 of the BPA Code of Practice, there is no evidence of

full compliance of the following, which the driver states was not available to them on the day, thus is insufficient to establish a contract for a £100 charge:

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.

Faulty Payment Machines - the fault of the operator

The driver was dismayed to have heard about this alleged PCN as they went out of their way to ensure that parking was paid for As the machine near them was broken, they had to twice walk the length of the car park to a machine at the back of the cafe. There was a large queue of people also struggling to pay, which meant a long wait.

Even the working machines appear to have difficulty processing payments correctly, at no fault to the paying users of the car park. It appears that rather than ensure these machines are working correctly, the operator instead chooses to pursue paying customers for extortionate speculative charges, as contesting a parking charge is very stressful and imitating for the average person. It is not difficult to find similar cases where this has happened, as seen on the next page. <2 images on next page from social media of people noting similar cases>

The charge is a penalty, breaches the CRA and is not saved by ParkingEye v Beavis.

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parkingbeing purchased in good faith and produced by a faulty set of machines and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court ofAppeal stage-which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law-fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

This is not a complex case by any stretch of the imagination and it remains clear that a £100 charge for a brief period of parking is entirely out of proportion to the regular tariff, that the driver went to great lengths to ensure was paid due to the broken payment machines and unclear instructions.

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, it breaches the Consumer Rights Act 2015, which states that ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This means that the parking charge notice is not enforceable and should be dismissed.

Joptito

Submitted the above to POPLA and a couple of weeks later was informed that the operator chose to cancel the parking charge.

Hope this helps anyone in a similar position in the future.

Gr1pr

Lol, they chickened out having seen that appeal. Well done  !

Coupon-mad

Joptito said:

Submitted the above to POPLA and a couple of weeks later was informed that the operator chose to cancel the parking charge.

Hope this helps anyone in a similar position in the future.

Yay! Well done.

Nice example of a POPLA Appeal re the main fact: 'Notice to Hirer non-compliant with POFA 2012'