Azure Parking - how to appeal "No parking at any time" PCN?

Grizebeck

There's plenty of time 

Ulrich

Grizebeck said:

There's plenty of time 

I thought I have 28 days form the day I received their response (4 Dec 2024).
Considering all holidays, we're almost there, is that correct?

Ulrich

Coupon-mad said:

kryten3000 said:

I don't think they have any other reply than the above.

Have you got the transcript links for Brennan and Shoebridge grabbable from Dropbox?  They were added to the usual BMPA resource when @troublemaker22  obtained them from Jackson Yamba a few weeks back.

Ian emailed the BMPA group and @bargepole put them in Dropbox.

I'm on a phone and can't get them. Just wondered if you can?  If not, no worries, the OP will have to wait for a rare day when I dust off the laptop!

Hello, any chance of you dusting off your laptop?
As far as I understand, there's only a few days left to submit my appeal to POPLA and I don't want to miss the deadline.

Gr1pr

Ulrich said:

Grizebeck said:

There's plenty of time 

I thought I have 28 days form the day I received their response (4 Dec 2024).
Considering all holidays, we're almost there, is that correct?

It's 33 days,  5 extra in case of the posted appeals

Ulrich

Gr1pr said:

Ulrich said:

Grizebeck said:

There's plenty of time 

I thought I have 28 days form the day I received their response (4 Dec 2024).
Considering all holidays, we're almost there, is that correct?

It's 33 days,  5 extra in case of the posted appeals

I'm going to submit it electronically

Gr1pr

Ulrich said:

Gr1pr said:

Ulrich said:

Grizebeck said:

There's plenty of time 

I thought I have 28 days form the day I received their response (4 Dec 2024).
Considering all holidays, we're almost there, is that correct?

It's 33 days,  5 extra in case of the posted appeals

I'm going to submit it electronically

As we tell people to do in the newbies sticky thread in announcements 

 Makes no difference,  it's always 33 days regardless 

Coupon-mad

Yes it is always 33 days anyway. You have until the first days of the new year to use that POPLA Code.

I will use my laptop at some point after Xmas but not this week - too busy!

Ulrich

Coupon-mad said:

Yes it is always 33 days anyway. You have until the first days of the new year to use that POPLA Code.

I will use my laptop at some point after Xmas but not this week - too busy!

Happy New Year!
Any news about that?

Ulrich

Here's my POPLA appeal draft (without references to 2 cases mentioned by @Coupon-mad).

Dear POPLA,

Re: Appeal for Parking charge to registered keeper [Reference Number]

As the registered keeper, I am writing to appeal the Parking charge to registered keeper (PCN) issued by Azure Parking LTD (the Operator) on 30/10/2024 for the vehicle with registration number [Vehicle Registration Number].

[me] refute this charge and require that this PCN be cancelled on the following grounds:

1. The PCN has not been issued correctly with regards to a ‘no parking at any time’.

The evidence put forward by the Operator shows the area in question is a small lay-by off a public road.

Within the PCN, they refer to this as "parking on private land" and as such they state it comes with contractual terms and conditions on offer to any driver who enters this area, stipulating that this constitutes an agreement between themselves and the driver. However, within the same PCN, they also declare this area cannot be used for parking ‘at any time’. This means, therefore, that there are no parking facilities available for any motorist to use, and as such no contract or agreement with regards to the use of such parking facilities, can be entered into. If it allows ‘no parking at any time’, then there is no parking contract on offer meaning it fails the contractual basic test (No Offer, No Consideration resulting in No Contract) as the driver cannot contract to do that which is forbidden. 

As a result the Operator has incorrectly issued a PCN, for a parking violation whereby the driver has broken the contract on offer, when no parking could have taken place.

This is supported by a recent successful POPLA appeal (assessor Richard Beaden), and exert of the summary of the case is included below;

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. I am allowing this appeal I will explain my reasons below. The appellant challenges that a valid parking contract was formed. The signs on site advise that this location is a no parking area and there is no option for a motorist to park in this location. The operator can issue a parking charge notice for trespass but this is not what has happened. The operator has referred to the site as a car park and has advised the PCN advises that the driver was parked in breach of the terms and conditions but there were no parking facilities which the driver could have used. The PCN makes no mention of trespass and the driver would not have to form a contact to have been trespassing. The operator has issued the PCN as though the driver had breached the terms and conditions but the operator should have treated this as a case of trespass. As such I must conclude that the PCN has not been correctly issued and on this basis I am allowing the appeal.

2. The PCN is not compliant with the Protection of Freedoms Act 2012 (POFA)

Under schedule 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if the conditions stated in paragraphs 5, 6, 11 & 12 are met. In particular, these require that the keeper must be served with a compliant PCN in accordance with paragraphs 9(2), (4) and (5), these state –

(2) The notice must -

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

   (e)   state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

      (i)to pay the unpaid parking charges

(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.

The PCN does not specify the period of parking as required by 9(2)(a), which is essential for 9(4) and 9(5).

It also does not state that the creditor does not know both the name of the driver and a current address for service for the driver as required by 9(2)(e).

Nor does it invite the keeper to pay the parking charge as per 9(2)(e)(i).

The PCN therefore fails to comply with the POFA and [me], as registered keeper, cannot be pursued for recovery of the charge.

3. The Operator has not shown that the individual who it is pursuing is in fact liable for the charge

 In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must consider whether they are confident that the Assessor knows who the driver is, based on the evidence received.  

Where a charge is aimed only at a driver, of course, no other party can be made to pay. There has been no admission regarding who was driving, and no evidence has been produced to indicate who it was. [me] is exercising its right not to name that person as it has done throughout.  [me] cannot lawfully be held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains that [me] is 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.

 Furthermore, the vital matter of full compliance with the POFA 2012 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."

4. No evidence of Landowner Authority

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put the 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.

Considering the above points, I kindly request that POPLA carefully reviews my appeal and takes into account that the PCN is not compliant with the Protection of Freedoms Act 2012 (POFA) and the inadequacies in Azure Parking LTD's response.

I look forward to a thorough and impartial review by POPLA. If there is any additional information required from my end, please do not hesitate to contact me.

Ulrich

It's my very first one so appreciate any constructive feedback as the deadline is today (or maybe yesterday, from 4 Dec'24).

@The_Slithy_Tove
@Gr1pr
@Coupon-mad
@KeithP@kryten3000
@Grizebeck
@Umkomaas
@LDast
@Fruitcake what's your advice?