OPS IAS appeal rejected.

BayConfused1234

Hi all,

I have read the NEWBIES thread and understand that after losing at IAS there is nothing I need to do unless I receive a proper Letter Before Claim or court claim.

I wanted some advice on a few specific points in my case and also what I should realistically expect if it does end up in court.

This is an OPS residential parking charge.

The vehicle was in a resident’s allocated numbered bay for around 17 minutes while helping the resident move boxes and belongings into a flat.

There were repeated trips between the vehicle and the flat. Loading and unloading was genuinely taking place as part of the move, although it was not physically continuous every minute because there were periods inside the building.

The resident had given permission for their allocated bay to be used.

For the IAS appeal I supplied:

• A signed witness statement from the resident confirming permission to use the bay and that belongings were being moved.

• Same day WhatsApp messages discussing the move, boxes and using the vehicle because it had more space. Oparater says this proves I was the driver however it just confirms I and my car and others where there.

• The operator’s photographs.

• The operator’s site map.

I also relied on Jopson v Homeguard.

Another point I raised was POFA Schedule 4.

The Notice to Keeper says that the creditor does not know the name of the driver or a current address for service for the driver.

However, I cannot find the warning required by paragraph 8(2)(f), which I understand should warn that if the charge remains unpaid after the relevant period and the driver remains unidentified, the creditor may recover the unpaid charge from the keeper subject to the Schedule 4 requirements.

Instead, the NTK appears to only refer generally to debt recovery and or County Court proceedings.

The driver has never been identified to OPS or IAS.

OPS said they were pursuing the keeper as the driver and relied on Elliott v Loake.

The IAS accepted this and said that because no evidence had been provided showing that the keeper was not the driver, OPS was entitled to assume the keeper was driving.

The IAS therefore said POFA compliance was not relevant because OPS were pursuing the appellant as driver rather than keeper.

They also rejected the loading and unloading argument and said that loading and parking are not mutually exclusive and that the terms contained no unloading exemption.

The main things I am trying to understand are:

If the NTK is missing the paragraph 8(2)(f) wording, does that prevent OPS from relying on keeper liability?

Does Jopson potentially apply where genuine unloading was taking place during a residential move but was not physically continuous every minute?

If this reaches a hearing, can the District Judge directly ask the defendant whether they were driving?

Can the judge also ask who the driver actually was if the defendant has never identified them to the parking company?

Coupon-mad

"If the NTK is missing the paragraph 8(2)(f) wording, does that prevent OPS from relying on keeper liability?"

Yes, if it is missing. No keeper liability.

"Does Jopson potentially apply where genuine unloading was taking place during a residential move but was not physically continuous every minute?"

Yes. IIRC, Jopson was about a lady carrying a table up flights of stairs. The car was photographed unattended.

"If this reaches a hearing, can the District Judge directly ask the defendant whether they were driving?"

Yes, they can ask.

Personally, if driving, I would defend as driver. It's a much more straightforward witness position and Judges hate silly games. They've usually been grumpy old gits in most cases where I've spoken for Defendants in court as a lay rep. You don't want to annoy a judge.

"Can the judge also ask who the driver actually was if the defendant has never identified them to the parking company?"

No. You would not have to name that person. But if it wasn't you, I'd knock this on the head by proving it to OPS now, by evidencing either where you were (at work?), or showing your photo ID if the photos show a different person at the wheel.

Is this at a Brighton or Worthing location?

Le_Kirk

They always "rely on Elliot v Loake" which was a criminal case using forensic evidence and did not relate to a parking case. Check the wording on the NTK against other NTKs you will find in @Coupon-mad's list of non-POFA NTKs linked from the NEWBIE sticky and use its full name to find it - One Parking Solution. If it is non-POFA, then yes, OPS cannot use keeper liability. Jopson v Homeguard is correct to use.

Elliott v Loake (1982) is a criminal case where the court concluded the registered keeper of a car was also the driver because physical and forensic evidence proved it, not because a keeper is automatically presumed to be the driver.

They are trying to con you!

The above recently posted by @James_Poisson

95Rollers

Don't worry too much, its very unlikely for anyone to win at the IAS or OPS appeals stage. There was a newspaper article in The Times where the Director of OPS openly boasted they'll never let anyone off a parking ticket! All useful material should the matter go to court.

BayConfused1234

https://forums.moneysavingexpert.com/discussion/comment/82161290#Comment_82161290

Thank you for your replies, really appreciate the advice.

The location was in Brighton.

The IAS appeal is now closed, so I assume there is not much more I can do unless OPS decides to take the matter further.

Just to clarify, there was a group of us helping with the move, and someone else moved my car from the loading bay to the resident's allocated parking space to make room. I would rather not identify that person.

The unloading also took longer than 20 minutes because it was a new build, with several residents moving in at the same time and sharing the lifts. This caused delays between trips to and from the vehicle.

I have already provided a witness statement from the resident and the WhatsApp messages. I would prefer not to keep asking people for further statements.

Given the evidence already provided, the potential POFA issue and the circumstances around unloading, do you think it is worth defending this if OPS takes it to court?

BayConfused1234

And there is no photo of anyone driving it was a windscreen ticket

Half_way

If the PPCs are still mentioning elliot vs loake, shouldn't the CMA be made aware?

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82162404#Comment_82162404

They will be - but there are more pressing issues to highlight, too.

Coupon-mad

"Just to clarify, there was a group of us helping with the move, and someone else moved my car from the loading bay to the resident's allocated parking space to make room. I would rather not identify that person."

That's fine.

"The unloading also took longer than 20 minutes because it was a new build, with several residents moving in at the same time and sharing the lifts. This caused delays between trips to and from the vehicle."

Yep that is normal loading activity, not parking.




"I have already provided a witness statement from the resident and the WhatsApp messages. I would prefer not to keep asking people for further statements."

Good. Keep them safe though, in case of a claim. Those are evidence. And keep all letters too, from the PCN right through to debt demands, all of it. Don't bin them. Keep them in a file in case they are needed,

Also download and keep all the photos currently on OPS' website and their IAS evidence pack, too.

Tell OPS if you move house within 6 years. Open each letter promptly just in case of a Claim Form.

"Given the evidence already provided, the potential POFA issue and the circumstances around unloading, do you think it is worth defending this if OPS takes it to court?"

Yes, absolutely. I've appeared as a lat rep to help defendants v OPS in Brighton, Lewes and Worthing Courts and the judges are good. I've never lost a case.

This isn't a 'parking event' and there might be no keeper liability at this site.

Also Jopson v Homeguard is persuasive. Elliott v Loake does not apply.

And in further support of your case, the MHCLG are soon to release a statutory Code of Practice that should help later on with people defending any claims.

Questions and actions:

Please could you kindly post the IAS Decision in my 'IAS Decisions until (we hope) they are banned' thread? We need more evidence that it's industry-skewed.
And:

• Does the PCN say 'BHCC' as part of the location?
• Is it a BHCC housing estate?
• Did the IAS evidence pack include a landowner authority document? Show that and the PCN here, both sides.

ParkingMad

https://forums.moneysavingexpert.com/discussion/comment/82162387#Comment_82162387

Have you already viewed any photos taken by the attendant? If not, you should be able to see them on OPS' website by entering the PCN number and the vehicle registration.

https://oneparkingsolution.ec6pay.com

Obviously don't proceed to the payment page!

BayConfused1234

https://forums.moneysavingexpert.com/discussion/comment/82162446#Comment_82162446

1. Does the PCN mention BHCC?

No, both the original windscreen PCN and the Notice to Keeper identify the location as "Denman Place (Hyde), Brighton".

2. Is it a BHCC housing estate?

My understanding is that Denman Place is a Hyde Homes development with shared arrangements involving Brighton & Hove City Council (BHCC).

I am not entirely sure about the precise ownership arrangements or whether the whole development would legally be considered a BHCC housing estate.

Interestingly, the parking signs specifically refer to BHCC visitor permits and BHCC professional carers permits as alternatives to the OPS E Permit.

The resident I was helping has an allocated residential parking bay, which she gave permission for the vehicle to use during her move.

3. Landowner authority and the site map

This is something I raised repeatedly throughout the IAS appeal.

I have checked the evidence OPS submitted, and I cannot find any actual landowner authority agreement or contract establishing their right to enforce parking of that bat.

Their initial submission simply stated:

"We are instructed by the freehold landowner to enforce parking on this site in accordance with the displayed terms and conditions."

They provided a site map showing the supposed contracted boundaries marked in red.

However, the map is quite difficult to interpret. One page uses an aerial photograph from when the development was still under construction, and the other shows a low resolution site layout with red lines around sections of the parking bays.

Looking at the layout, I questioned whether the bay was actually within their contracted enforcement area. The red boundary markings do not make this particularly clear.

I raised this with the IAS and specifically asked OPS to demonstrate that the bat was included within their enforcement boundary and that they had contractual authority to enforce there.

Their response was simply:

"We re-iterate our prima facie comments. Bay xx can be seen attached and circled on the site map."

They then provided an annotated version wit

the bay circled in black.

I responded again, explaining that simply identifying the bay on a map does not establish that it falls within their contractual enforcement boundary or prove their authority over that particular bay.

They never provided the underlying landowner agreement or any further explanation of the boundaries.

Adjudicator's Appeal Dismissal

"The Appellant should understand that the Adjudicator is not in a position to give legal advice to either of the parties but they are entitled to seek their own independent legal advice. The Adjudicator's role is to consider whether or not the parking charge has a basis in law and was properly issued in the circumstances of each individual case. In all Appeals the Adjudicator is bound by the relevant law applicable at the time and is only able to consider legal challenges and not factual mistakes nor extenuating or mitigating circumstances. Throughout this appeal the Operator has had the opportunity consider all points raised and could have conceded the appeal at any stage. The Adjudicator who deals with this Appeal is legally qualified and each case is dealt with according to their understanding of the law as it applies and the legal principles involved. A decision by an Adjudicator is not legally binding on an Appellant who is entitled to seek their own legal advice if they so wish.

In all Appeals the burden of proof is the civil one whereby the party asserting a fact or submission has to establish that matter on the balance of probabilities. If the Operator fails to establish that a Parking Charge Notice was properly issued in accordance with the law then it is likely that an Appeal will be allowed. If the Operator does establish that a Parking Charge Notice was properly and legally issued then the burden shifts to the Appellant to establish that the notice was improperly or unlawfully issued and if the Appellant proves those matters on the balance of probabilities then it is likely that the Appeal will be allowed. However the Appeal will be dismissed if the Appellant fails to establish those matters on the balance of probabilities. The responsibility is at all times on the parties to provide the Adjudicator with the evidential basis upon which to make a decision.

I am satisfied that the Appellant was parked in an area where the Operator has authority to issue Parking Charge Notices and to take the necessary steps to enforce them. The Appellant has provided no evidence to support his claim that Bay xx was outside of the Operator's area of enforcement. The Operator's evidence, which includes the annotated site map clearly shows it is within the enforcement area.

The Appellant accepts that he was the keeper of this vehicle but denies that at the time of the incident he was the driver. In the case of ELLIOTT v LOAKE in 1982 the principle was established that in the absence of sufficient evidence to the contrary the keeper of a vehicle is assumed to be the driver of that vehicle at the time of an incident such as arises in this Appeal. The burden of proof is then on the keeper of the vehicle to prove on the balance of probabilities that he/she was not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that he was not the driver and therefore, contrary to the Appellant's assertion, the Operator is entitled to assume that as the registered keeper on the date of the parking event, he was also the driver.

Images have been provided to me by the Operator which shows the signage displayed on this site. After viewing those images I am satisfied that the signage is sufficient to have brought to the attention of the Appellant the terms and conditions that apply to parking on this site.

The terms and conditions of parking at this location are such that either vehicles must be registered with a valid OPS e-permit which entitles them to park there or they must display a valid BHCC visitor permit or carer's permit. In the photographs provided to me I can see that the Appellant's vehicle was observed parked in Bay xx from 14:16 to 14:33 (this being the relevant observation period) with no valid permit on display. In the data provided I can see that no valid e-permit was registered for the Appellant's VRN. It is the driver's responsibility to ensure that they conform with the terms and conditions of the Operator's signage displayed at this site. Whilst I appreciate the circumstances raised by the Appellant as to the reason for parking on the site, mitigating/extenuating circumstances cannot be taken into account. Third parties, including residents cannot authorise drivers to park in contravention of the displayed terms and conditions.

The argument seems to be they were not parked but unloading and loading. The acts of loading/unloading and parking are not mutually exclusive. One must first park to load. The terms make no exception for loading or unloading. The Courts have determined that vehicles stationary on private land are parked within the meaning of the signage, irrespective of the period parked and factors such as whether the driver remains in the vehicle or the engine remains running. On the basis of the evidence provided, I am satisfied that the Appellant was parked on this occasion and his assertion to the contrary is not accepted.

The Appellant raises as an issue the Protection of Freedoms Act 2012 and purports that the Operator has failed to comply with the requirements therein. I must point out that whilst the Act does need to be complied with in cases where the Operator wishes to avail themselves of the keeper liability provisions under Schedule 4, they are not obliged to do so where they do not. Instead, the Operator is entitled to rely either on the legal presumption that the keeper of the vehicle was also the driver (which they are entitled to do in the absence of credible evidence to the contrary) or on an acceptance that they were driving at the material time. On the present facts, the compliance or otherwise with the Act, is not a relevant issue. The Operator is pursuing the Appellant as the driver.

For the reasons set out above, on the basis of the evidence provided I am satisfied that the Appellant was parked in breach of the displayed terms and conditions and that the PCN was correctly issued on this occasion.

I have considered all the issues raised by both parties in this Appeal and I am satisfied that the Operator has established that the Parking Charge Notice was properly issued in accordance with the law and therefore this Appeal is dismissed.