Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: summer day on January 16, 2024, 11:43:47 am
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Thanks, yesterday was my latest day to leave comments so I had to go with what I had.
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IMO, the main part of the 8 v 9 issue is the time frame for serving the notice i.e. an 8 cannot be served until at least the Notice to Driver has expired otherwise this is an attempt at double recovery.
I refer to your Notice to Keeper (NTK) dated **** in respect of an event which occurred on ****. I have read this notice thoroughly and have referred to the references supplied by you for which I am grateful i.e. Schedule 4 of the Protection of Freedoms Act 2012(PoFA).
Your notice states the following:
'You are notified that ......
..you are now invited to pay....further recovery action ......
As your notice is dated 19 November 2023, then paras 8(4)and 8(5) of PoFA make it clear that you may not serve a Notice to Keeper until at least 28 days have elapsed since you issued the Notice to Driver to which para. 8 refers. The date of the incident and therefore presumably the date of the Notice to Driver(NTD) was 19 November and therefore it follows that the earliest that you could serve a NTK would be 18 December and that any notice issued prior to this date would be an attempt at double recovery as well as being proscribed by PoFA, and indeed your Code of Practice.
It therefore follows that you have not complied with the precedent conditions of para.4 of PoFA and therefore are unable to exercise the right to hold the keeper liable.
I cannot comment on the validity of the original NTD and parking charge and you are no doubt free to continue to pursue the driver.
add whatever else you like....
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Is this better?
Non Compliant Notice to Keeper
Elite Parking seeks to hold me, the keeper, liable for a parking charge. However, their attempt fails because they haven't served a compliant Notice to Keeper (NTK) in accordance with Schedule 4 of the Protection of Freedoms Act 2012 (POFA). This serves as the essential condition for their claim against me.
Specifically, when relying on paragraph 8 of POFA, as they are here, a creditor must first issue a Notice to Driver (NTD) and wait at least 28 days before serving an NTK. In this case, the alleged parking violation occurred on November 19th, yet the NTK arrived only on November 23rd. This clearly violates the 28-day waiting period mandated by POFA paragraph 8(5).
For reference, POFA paragraph 8(1) states that a compliant NTK, when relying on paragraph 6(1)(a), must fulfil several requirements, including:
Identifying the vehicle, parking location, and relevant parking period.
Informing the keeper of the driver's unpaid parking charges.
Mentioning the prior issuance of a Notice to Driver and repeating specific information from that NTD (as outlined in paragraph 7(2)(b), (c), and (f)).
Delivering the notice to the keeper within the relevant period (28 days after the 28-day period following the NTD).
Given the blatant disregard for POFA requirements in Elite Parking's NTK, I request POPLA to acknowledge the non-compliance and overturn the issued PCN. The lack of a compliant NTK renders their claim against me invalid
Concerns about signage:
While Elite Parking presents photos as evidence of signage, these pictures raise serious concerns about its accuracy and effectiveness:
Absent sign: The left-hand sign shown entering the street is completely missing in reality. This casts doubt on the completeness and reliability of their overall signage strategy.
Lack of visibility: Notably, their photos lack any signage directly visible from the bay where my vehicle was parked.
Discrepancies: The signs in their photos significantly differ from the actual appearance and location of the on-site signage. This discrepancy raises serious doubts about the trustworthiness of their evidence.
Appeal request:
Given the substantial flaws and discrepancies in Elite Parking's evidence and signage strategy, I respectfully request that POPLA overturn the issued PCN.
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Thanks, found it.
'You are notified under para. 8(2)(b)........'couldn't be clearer.
Is what the evidence states.
Deal with what's in evidence, not what isn't.
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All their evidence is there. Including the notice to keeper. You have to scroll down then there's 7 more files
Thanks I see your point in not mentioning what should be there.
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You haven't included all their evidence, or if you have they'll fail by default because there's no Notice to Keeper which is the key notice.
But assuming they have submitted this in evidence then:
You have not admitted being the driver, therefore your only issue is whether you may be held liable by the creditor, as they have asserted that they may, if the charge is not paid and the creditor doesn't know the name of the driver.
To hold the keeper liable they must serve a compliant Notice to Keeper.
They haven't.
They have not complied with Schedule 4 of PoFA which is the precedent condition for them to hold you liable. Specifically, when a creditor relies upon para. 8 of PoFA, which is the case here, they must have issued a Notice to Driver and may not serve a NTK until at least 28 days have elapsed following service of that notice.
In this case, the date of the alleged breach is 19 Nov. and the NTK was served on 23rd.
Para 8 in part:
8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(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;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
......
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 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
It is not your task to guess, deduce, divine or whatever that the notice should refer to other matters e.g. should be para. 9 etc. Think about it, if you were to do this then why not guess that it says all the things it doesn't, even if it should have referred to para.9 and not appeal at all.
You have received the notice AS IS.
You are entitled to deal with it as such.
But I suspect this view won't be mainstream.
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Are you saying you don't agree with what I have written to submit as the comments?
All of the documents in their evidence are here
https://imgur.com/a/V9uxItz
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Can't agree.
I like to deal with what is in evidence and not what we think should be.
In this case, the PCN NTK refers to 8(2) etc. It is not the keeper's task to think this should be something else (e.g. 9) and address the alternative, neither could the keeper be criticised or placed in jeopardy for not doing so.
The NTK says what it says and the keeper is perfectly entitled to address it as such. Subject to what other correspondence they might have had with the creditor and which we have still not seen but must exist otherwise there wouldn't be a POPLA code - what I referred to as the keeper's appeal to Elite and not their appeal to POPLA), IMO the keeper cannot be presumed to know anything about matters and may act upon the NTK as written, not as we think it should have been written.
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Do I need to reword this in any way?
This is an appeal by the keeper. The driver has not been identified. The operator has put into evidence their PCN which does not comply with the requirements for keeper liability in Schedule 4 to the Protection of Freedoms Act 2012 (‘POFA’).
Missing mandatory warning:
There being no notice to driver in evidence, the notice to keeper should have included the mandatory warning required by POFA paragraph 9(2)(f). The warning contained in the NTK does not come close to satisfying that condition. Quite apart from referring to paragraph 8 instead of 9, it does not state that the operator’s right to recover from the keeper is subject to all applicable conditions under POFA being met. Therefore the appeal must succeed.
Concerns about signage:
While Elite Parking presents photos as evidence of signage, these pictures raise serious concerns about its accuracy and effectiveness:
Absent sign: The left-hand sign shown entering the street is completely missing in reality. This casts doubt on the completeness and reliability of their overall signage strategy.
Lack of visibility: Notably, their photos lack any signage directly visible from the bay where my vehicle was parked.
Discrepancies: The signs in their photos significantly differ from the actual appearance and location of the on-site signage. This discrepancy raises serious doubts about the trustworthiness of their evidence.
Appeal request:
Given the substantial flaws and discrepancies in Elite Parking's evidence and signage strategy, I respectfully request that POPLA overturn the issued PCN.
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I just looked at the PCN you linked. It only shows the front. So it’s possible that there’s correct POFA language on the back. But if not, the NTK is not POFA compliant- not so much because of the typo “8” for “9” but because it doesn’t contain the mandatory warning required by 9(2)(f), which is the same as the mandatory wording required by 8(2(f).
Try to work this into the comments. Even if it is rejected by POPLA you’ll be putting down a marker for the next stage.
Maybe something like:
“This is an appeal by the keeper. The driver has not been identified. The operator has put into evidence their PCN which does not comply with the requirements for keeper liability in Schedule 4 to the Protection of Freedoms Act 2012 (‘POFA’). There being no notice to driver in evidence, the notice to keeper should have included the mandatory warning required by POFA paragraph 9(2)(f). The warning contained in the NTK does not come close to satisfying that condition. Quite apart from referring to paragraph 8 instead of 9, it does not state that the operator’s right to recover from the keeper is subject to all applicable conditions under POFA being met. Therefore the appeal must succeed.”
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Will do, thanks
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If the NTK is not POFA compliant and the driver has not been identified then obviously that should have been the main point of the appeal.
But we are where we are. Regardless of the POPLA rule against raising new points at the comments stage, I would raise it anyway as a comment on the NTK put in evidence.
Most importantly, remember that a loss at POPLA is not binding so it’s important not to give up the POFA point which could be important if it’s decided to continue the fight post POPLA. So at the very least, change those “I” “me” statements to statements about the motorist or driver
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The appeal is in the first post, they didn't name the driver
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Where's the keeper's appeal to Elite?
Has the keeper named the driver?
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I was working with the information I was able to gather.
I have already submitted the POPLA appeal with no reference to the NTK, As I was informed I can't introduce anything new, does that mean I can't use this?
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..almost as if in passing when IMO it is key.
The appeal waffles on about internet-derived snippets when IMO it should focus on the objective evidence:
The PCN states that 'You are notified under paragraph 8(2)(b) etc.... So why not play a straight bat and not trawl the internet? Sorry, but it's a beef of mine.
Dear Adjudicator,
The PCN states that I have been notified under paragraph 8(2)(b) ....which I have now had the opportunity to examine and I note that the PCN omits the following............
Consequently, it fails to comply with Schedule 4 and as this is a precedent condition for pursuing the keeper for the driver's alleged breach I, as keeper, have no liability and I look to the assessor to notify the creditor accordingly. I would also add that as the PCN fails to comply with PoFA it necessarily follows that it also fails to meet the requirements of the BPA Code of Practice which is a precedent condition of having Landowner Authority.
But it's probably too late for all of the above.
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The keeper has not admitted driving.
Is it a POFA NTK, as the warning doesn't warn about keeper liability?
Also Elite are referring to para 8(2)(b) when it should be para 9(2)(b) for a postal NTK.
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"I was not adequately informed of the regulations, and it is unfair to penalise me for navigating misleading and confusing information."
Is this a case where the keeper has admitted driving or it doesn't make a difference because POFA has been correctly engaged by the NTK?
If not change to:
"The signage is inadequate, and it is unfair to penalise the motorist for the consequences of misleading and confusing information."
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Is this OK for my comment response
Elite Parking's evidence includes photos of signage they claim are present at the location. However, these photos do not accurately reflect the actual signage situation. Specifically:
The sign marked left on entering the street in their photos is entirely absent in reality. This raises concern about the completeness and accuracy of their signage strategy.
Their photos fail to show any signs visible from the specific bay where my vehicle was parked. This lack of readily visible signage in the immediate vicinity of the parking space significantly weakens their case.
The signage in their photos differs significantly from the actual appearance and placement of the signs on-site. This discrepancy casts doubt on the reliability of their evidence and the overall effectiveness of their signage strategy.
The inconsistent, ambiguous, and potentially misleading nature of the signage creates an unfair and confusing situation for drivers
Based on the discrepancies and flaws in Elite Parking's evidence and signage strategy, I respectfully request that POPLA overturn the issued PCN. The lack of clear, prominent, and consistent signage renders the parking restrictions unenforceable in this instance. I was not adequately informed of the regulations, and it is unfair to penalise me for navigating misleading and confusing information.
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I'll see if I can take a look at this in more detail later, but in the comments stage, your job is to essentially comb through the evidence Elite Parking Management have provided, and draw attention to any points that you made in your appeal that they have failed to address in their evidence, as well as any evidence they have adduced that supports your case. You cannot use the comments to advance any new arguments not previously made, so stick to reinforcing these.
From a quick glance, I'd say their own photos of the signage support your point that it is insufficient. Their photos show that the sign is so high up as to be illegible from street level, and the £100 charge is certainly not prominently displayed. Their photos of the vehicle also seem to support the point that there is no particularly prominent signage near where the vehicle was parked, such that a motorist would be aware he was parking in a space to which restrictions applied.
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The seven days includes the day you were notified by POPLA, so if that was the day before yesterday (15 January) the deadline is 21 January. I'm sorry but I don't have time to look at this before the deadline. I hope one of the other regulars can help
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Can anyone help with this? I only have 5 days to reply
@DWMB2, @H C Andersen, @Nosy Parker @Hippocrates
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A friend was helping me move into my house and got this ticket, so I am trying to help with it.
I'd really appreciate a response to POPLA now that Elite has uploaded their evidence.
PCN
https://imgur.com/a/QbNE8K3
Parking Signs
https://imgur.com/a/6zsaEse
The blown up Elite parking sign has open parking still referenced on it, and a sticker to change some information.
This is what I sent in the POPLA appeal
I am writing to formally appeal against the Parking Charge Notice (PCN) issued by Elite Car Parking Management on the grounds of inadequate signage, lack of grace period, improper ticketing method, and potential non-compliance with the British Parking Association (BPA) Code of Practice.
1. Inapplicability of Grace Period Clauses:
The PCN cites a single contravention at a specific time, implying a breach of a "parking contract." However, the BPA Code of Practice regarding grace periods (specifically clauses 13.2 and 13.4) is intended for situations where a driver consciously enters into a contractual agreement with the parking operator. In this instance, I was legally parked in a marked bay on a public street, not within a defined car park where such a contract would be established.
2. Inadequate Signage and Lack of Reasonable Opportunity:
The BPA Code of Practice emphasises providing drivers with a reasonable opportunity to understand parking restrictions and make informed decisions. However, Elite Car Parking Management failed to fulfil this obligation due to the following significant shortcomings in signage:
(a) Excessively High and Illegible Signage:
Entrance signs are absent from the street and not visible from the parking bays. I only discovered them later, positioned excessively high with tiny fonts. Reading these terms requires extensive effort, like photographing and zooming, effectively negating any potential grace period.
ParkingEye v Beavis established that the penalty law is in play for parking charges and that a charge of £85 was not a genuine pre-estimate of loss. It would not be a penalty or unfair consumer contract however if the charge was clearly brought to the attention of the motorist. In the Beavis case this was achieved by the £85 charge being in the largest font on the sign and in contrasting colours.
I submit a copy for comparison.
Figure 1. Beavis Sign Figure 2. Elite Parking Management SIgn
In contrast the £100 charge here is buried in the small print. As ParkingEye v Beavis is binding case law I submit the charge must be found to be either a penalty or an unfair consumer charge. I refer to the following paragraphs of the judgement to support this.
Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”
Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.
(b) Confusing and Contradictory Information:
The presence of multiple parking companies' logos and information, including references to OpenParking.co.uk alongside Elite Car Parking Management, creates a misleading and confusing environment. This raises concerns about legitimacy and compliance, hindering informed decision-making within a reasonable timeframe.
(c) Lack of Transparency Regarding Enforcement Methods:
The omission of any mention of ANPR on the signage constitutes a lack of transparency regarding enforcement methods. Drivers have a right to be informed about such practices.
(d) Incapable of Forming a Legally Binding Contract:
Due to the aforementioned shortcomings, the signage fails to meet the standards set in the Beavis case. This renders it incapable of forming a legally binding contract. Therefore, no contract exists with the driver to pay the demanded amount, and any additional punitive charges are invalid.
3. Lack of Clarity Regarding Landowner's Permission and Legal Standing:
The PCN fails to provide any clarity regarding the landowner's permission for Elite Car Parking Management to enforce parking restrictions on this public street. Additionally, there is no information about the legal standing of Elite Car Parking Management to act on behalf of the landowner in issuing PCNs.
4. Conclusion:
In light of the aforementioned issues, I respectfully request that the POPLA adjudicator overturn this PCN. The combination of factors, including:
Inapplicability of grace period clauses due to the absence of a parking contract.
Inadequate signage, lack of transparency, and a lack of reasonable opportunity to comprehend parking restrictions.
Unclear landowner permission and legal standing of Elite Car Parking Management.
warrant a thorough review of the PCN's validity. I am confident that a fair and impartial assessment of the evidence will support the overturning of this unfair charge.
I heard from POPLA yesterday that Elite have uploaded their evidence and I had 7 days to respond.
Elite's Evidence is attached below
[attachment deleted by admin]