Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: Strawberries007 on February 01, 2024, 05:23:18 pm
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Thank you.
I've updated based on the helpful points you raised.
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You could highlight to the assessor that PoFA 9(2)(e)(i) is not complied with. Look it up yourself and understand why this is highlighted. Compare your original NtK to what is required by the Act in that paragraph.
Don’t assume that the assessor is fully clued up on the Act and can spot this lack of compliance. Lead them by the nose to this PoFA failure which means that you cannot be liable as the keeper.
https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
One additional point from PPs evidence pack is their timeline. It shows that they sent your file to DRP+ on 27/03/24 before the appeals process was complete. Did you receive any DRP+ correspondence at all?
They later cancelled the DRP+ action on 04/04/24 but, without having scrutinised the BPA CoP 24.4, you need to check to see if this is a breach of the CoP. Also, check against 23.12a: “If an appeal is being considered by POPLA, the debt recovery process must not be commenced until the outcome of the case is known”.
Again, lead the assessor by the nose to this point. Whilst you cannot introduce new evidence that was not in your original POPLA appeal, you are highlighting evidence provided by the operator which shows a breach of the BPA CoP.
Make sure you read the CoP yourself and don’t just rely on us doing all the work for you.
https://www.britishparking.co.uk/write/Documents/AOS/NEW%20Redesigned%20Documents/Version91.2.2024Highlight.pdf
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Thank you.
I've managed to redact their submitted evidence and uploaded here. (https://ibb.co/238C06R)
Here's the PCN that was issued https://ibb.co/album/Hp1RMf
Here is their evidence pack sent to POPLA. https://ibb.co/238C06R
Please see posted earlier but here for ease of reference:
https://ibb.co/YDCg3MJ operator's response.
Operator Contract https://ibb.co/F5vKLGJ
Operator's Photo Pack https://ibb.co/WDXCx6f
Sunday evening is my deadline to submit my comments to their evidence.
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Just to add a point about something I noticed in the contract; In the "Self Ticketing Schedule", section (Page 13), "Definitions" it mentions in the first paragraph about a "Self Ticketer" must be registered with the IPC. Then in point 2.1, it mentions that the "Self Ticketer" must be registered with the BPA.
I don't think it will help your case but you never know. You can raise this in your rebuttal as it is in effect new evidence as provided by the operator by revealing their contract. It certainly shows that it has not been proof read properly over the years since PP has flip flopped between ATAs.
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Thank you. I suspect I read somewhere that the one jas a maximum of 1000 words. So as I'd already stated and quoted these provisions and made the points in my appeal I wasn't going to reproduce in full again but shall prioritise that following your comment.
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It's a weak case for POPLA. However, you never know on the day. If you are unsuccessful at POPLA, it has no bearing on what happens going forward. PP will certainly start with the debt collector letters which you should, by now, know you can safely ignore. You would only have to react if/when they send you an LoC.
Regarding your arguments about the facts, the point about the "relevant" land is very weak. If there was likely to be any ambiguity about the location, it is not a strong point. The fact that it is 100m from somewhere on a Google maps area for the post code is likely to be dismissed.
When arguing BPA CoP practices, have you actually read the relevant document and why don't you include actual text from the clause that you are arguing. Just statin that the CoP has been breached without going into the specifics of what the clause actually says doesn't really help you. You mention a POPLA decision and give a number but you don't include the man point of that decision and you are expecting the assessor to know what that decision was. Feed it to the assessor. Don't expect them to do your work for you.
What has the Privacy Policy got to do with the PCN? Also, a driver does not have to exit a vehicle for it to be considered parked. I have no idea why you are making a point of that. Are you saying that if a driver stops on private land and then goes to sleep in the car for an hour but never exits the car it is not parked?
You mention keeper liability and PoFA section 8. Section 8 has nothing to do with your circumstances. If you're going to quote the Act, make sure you quote the relevant section (9). You go on about "...specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates." Then it is left hanging there. Aside from the fact that you are quoting the wrong section, what point about that section are you making?
I could go on but the strongest points need to be signage. You don't mention which BPA CoP clauses the signage breaches and why. The landowner contract may have some legs but is more useful if this ever goes to court.
Anyway, good luck and let us know the outcome.
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I received a link to the operator's evidence pack on Monday so I need to reply by Sunday night.
Please see operator's response here (https://ibb.co/YDCg3MJ).
Operator contract (https://ibb.co/F5vKLGJ).
Operator's Photo Pack (https://ibb.co/WDXCx6f).
My response in draft (https://ibb.co/gWmPbdx). Also below.
I write in response to Premier Park Ltd’s (PP) evidence pack.
The PCN does not comply with POFA 2012 Para 9(2)(a) as it fails to name the relevant place. See para 1 of my appeal.
This road is North St. It is not Market Hall. The post code named as the “relevant place” CV21 2JR is Market Place and is over 100ms from the road between 9 (Nat west) and 11(vacant) 13 (New Look) North Road CV21 2AH which is the location of the road in the photos.
PP may monitor the road, but the fact remains that the address stipulated on the PCN is incorrect.
My para 3 has not been rebutted. The Order Form is not signed by the landowner. There’s no proof that the Customer named on the Order Form is the landowner of this road. There’s no land owner contract showing the landowner’s signature, name of the authorised signatory, director or secretary.
There is no proof that the “Customer “has the authority of the landowner. There is no proof of whether the Order Form/Contract was signed by the Owner, authorised representative or managing agent. There is no visible name or signature. The document was valid for a year.
PP have not provided evidence to rebut my para 9 regarding alteration of photos. This violates British Parking Association (BPA) Code of Practice Section 21.5a. As these are not the original images, the NtK is therefore invalid. PP Limited should have produced evidence of the original "un-cropped" images containing the required date and time stamp to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated. They must prove the above statements otherwise. Alteration to any degree is prohibited and calls all images into question rendering the NtK non-compliant. February 2024 POPLA decision citing similar issue as reason for allowing the appeal. Code 2413353469
PP has not proved the accuracy of their camera’s timing to rebut my defence. See para 10. Surveillance cameras whether APNR and CCTVs must be independently calibrated, audited and checked. PP is put to strict proof that the surveillance system has not failed motorists within this site. It cannot be assumed that the camera and timing is correct. I’m not a surveillance operative. I use APNR to mean cameras used by parking operators to record cars. I was not driving so I don’t know what type of camera was used.
It is unreasonable to expect the driver to park and call to find out the privacy policy. This will only further allow PP to claim parking or waiting in a no parking zone. It will take the driver considerable time to search online and read the policy. Perhaps this is what the driver was doing at the time. The text on the sign is too small.
PP have not provided any photo showing the driver exiting the vehicle yet the PCN was issued for “Parking In A No Parking Area” and for “parking in breach of parking terms”.
The PCN should have been worded as “Waiting” as there is no proof the driver left the car at any time. They have showed the car waiting but the PCN claims “Parking”.
There was no entry sign and this makes driver susceptible to driving in as prey. PP state that their entrance signs are compliant with BPA but there’re no warning entrance signs. They also state an entrance sign is included in the image pack but as can be seen there is none.
Para 12. There is no proof of consent to advertise on the signs nor of Planning Permission. This is a criminal offence and POPLA should not allow PP to benefit from illegality.
PP have failed to establish keeper liability as the Notice to Keeper was not fully compliant with POFA 2012 legislation. They have failed to comply with paragraph 8, section (2)(a) which very clearly states: specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
The Order Form is not signed by the landowner. There’s no proof that the Customer is the landowner of this road. There’s no land owner contract showing the landowner’s signature, name of the authorised signatory, director or secretary.
The photos supplied of the signs are stock copies of signs instead of photos of the actual signs on site. The remainder are from over two years ago. They’re unclear, illegible, nothing to show how close the car was to a sign and apart from the entrance photo are of another location. See my paragraphs 4 and 5.
I'm on the road all of today but shall work on it on Saturday.
I'll be most grateful for your comments.
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My almost final Popla Appeal (https://ibb.co/f41xHhQ), thanks to everyone!
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If anyone can please confirm my last day for submission.
Here is the back of the Ntk (https://ibb.co/2WHDYYg).
Thanks.
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Many thanks.
I have effected the correction bar two points.
The recent POPLA judgement about digitally altered photos and the Consumer Rights Act.
I shall aim to do them latest tomorrow as I am delaying others waiting for me at the moment.
https://ibb.co/yBc8BBV
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CoP v8 applied at the time.
Thanks for the correction - some of the content seems to be from an even earlier version so will need updating.
I think the signage point is also decent, but as b789 says I'd lose the part about a lack of lighting.
b789 also makes a good point in relation to a "Wall of text". Make use of paragraphs. Although this isn't a court defence, you may even wish to number the paragraphs as you would in a defence. The easier you can make it for the assessor the better.
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There are a couple of instances where “Smart Parking” are mentioned as it is obvious that some of the POPLA appeal has been cut and pasted from other POPLA appeals. Without trawling back through the whole appeal, they were somewhere in the ANPR bit.
Regarding which version of the BPA CoP should be referenced, this event occurred in January 2024, which means that the CoP v8 applied at the time.
I agree that the “relevant land” argument is flakey. There is enough information in the address details given in the NtK to identify the location. It would need to be so ambiguous when searching the address to identify the location, such that there is more than one distinct, geographical location that is not adjoining the relevant location. Then again, it is for the operator to rebut that point.
There is also some mention in the appeal about the ability to read any signs and lighting conditions. The event occurred in the middle of the day, so lighting conditions are not really relevant.
It will be interesting to see if PP rebut every point and how the assessor will decide. When the rebuttal does come in, make sure that every point you have made is covered. You only need to win on a single point whereas PP need to rebut all of them.
I think the strongest points for POPLA will be failure to invite the keeper to pay the charge as per PoFA 9(2)(e)(i). However that point is lost in the wall of text that tries to swamp the assessor with all the other, less relevant, PoFA breaches.
The other strong point is the one about the digitally altered image in the NtK which breaches the BPA CoP. It is the second image which has been obviously cropped. There was a recent POPLA appeal that was upheld on precisely this point. However, no reference to this is included and the OP should at least try and find the wording of that appeal which is in the POPLA appeals thread over on the MSE forum.
I don’t know why you haven’t included anything about the Consumer Rights Act 2015 relating to ‘prominence’ of terms and ‘consumer notices’. There’s a whole host of points you could raise:
https://www.legislation.gov.uk/ukpga/2015/15/part/2/enacted
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If the discount is gone then I agree there's little to be lost by rolling the dice with POPLA.
Do you have a photo of the back of the notice?
A couple of points:
- Location: You list the location as stated on the notice then immediately follow this with: "CV21 2JR is indeed Rugby Central Shopping Centre" - I'm not sure this sentence particularly helps your case... Also, I'd be minded to see if you are able to get any Screenshots from something such as a Land Registry map rather than Google Maps. I don't think the location point is particularly strong, as it doesn't seem at all ambiguous what location they're referring to, but as above, no real harm in trying.
- PoFA: You list a whole host of ways they do not conform with it, double check them. 9(2)(h) for example, you claim they don't identify the creditor or say how payment can be made, but on the first page of the notice it says "We, the Creditor, now request this amount is paid using one of the payment methods overleaf"
- Grace Periods: You seem to be quoting an old version of the Code of Practice, make sure you are using the most up-to-date one (version 9, Feb 2024, there's a link in my signature). The two periods cannot be added together to allow drivers to park anywhere as long as they don't stay more than 20mins. A consideration period is an opportunity to read the signs and decide to either leave, or park, it's not a period of free parking (it's also a minimum of 5mins, not 10). A grace period at the end is unlikely to apply as this was not a permitted parking event.
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Dear all,
Please see link to my POPLA appeal (https://ibb.co/SdL8ghJ).
Your comments will be most appreciated.
I understand some are of the view there's no point but as I already missed the discount I thought to give it a shot.
PoPLA code received 26th Feb so I assume I have till Friday but prefer to submit tonight please.
Thank you.
Link to NtK here (https://ibb.co/bF3GmbX).
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I wouldn't bother, IMO you're clutching at [pointless] straws which is a distraction.
Using the post code in GSV delineates an area immediately next to the Nat West. You won't win at IAS on such fine margins.
@b789, where does this appear in Schedule 4 either verbatim or its meaning?
the wording in the warning to the keeper does not strictly comply with PoFA, which it must do.
PoFA states:
9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
.....
)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
'Warn', which can take on various forms. It does not have to state the words 'you are warned that....'.
The PCN says:
'You are advised that if ABC and DEF ..we will have the right to recover the unpaid charge from the keeper..'
This is a clear warning in anyone's language IMO.
Don't risk the discount on this point IMO.
Thanks. The discounted period ended a while back. I'm in the last couple of days left for POPLA appeal.
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I wouldn't bother, IMO you're clutching at [pointless] straws which is a distraction.
Using the post code in GSV delineates an area immediately next to the Nat West. You won't win at IAS on such fine margins.
@b789, where does this appear in Schedule 4 either verbatim or its meaning?
the wording in the warning to the keeper does not strictly comply with PoFA, which it must do.
PoFA states:
9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
.....
)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
'Warn', which can take on various forms. It does not have to state the words 'you are warned that....'.
The PCN says:
'You are advised that if ABC and DEF ..we will have the right to recover the unpaid charge from the keeper..'
This is a clear warning in anyone's language IMO.
Don't risk the discount on this point IMO.
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The the parking firm under an obligation to write the correct address on the NtK?
Using Land Registry's Map Search there isn't any such address under that title. The closest is
MANAGEMENT SUITE, 19 MARKET MALL, THE CLOCK TOWERS SHOPPING CENTRE, RUGBY CV21 2JR
The NTK says Rugby Central Shopping Centre 19 Market Hall CV21 2JR.
How do I prove there's no such place as 19 Market Hall at the Shopping Centre and if there is it's not where the car is photographed?
I've put together screenshots from the Land registry's site showing the closest description to the address on the NtK amongst the addresses listed under the title. (https://ibb.co/GcYdW7V)
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How do I prove the address of a location please?
The driver went into this side entrance by Natwest 9 North St, Rugby CV21 2AH (https://www.google.com/maps/place/NatWest+Rugby/@52.3737606,-1.2632598,18.75z/data=!3m1!5s0x487740b79b9ec1ed:0x5058728529e8af7!4m15!1m8!3m7!1s0x487740b79ed25a0f:0xe1a0cc490e3c3dc4!2sNorth+St,+Rugby+CV21+2AH!3b1!8m2!3d52.3737989!4d-1.2623132!16s%2Fg%2F1tf0q3bf!3m5!1s0x487740b79cefbc5f:0x2fb87b5830e11d72!8m2!3d52.3736972!4d-1.2626328!16s%2Fg%2F1tgclt31?entry=ttu)
The NTK refers to it as Rugby Central Shopping Centre 19 Market Hall CV21 2JR (https://www.google.com/maps/place/Rugby+Central/@52.3735604,-1.2634934,18z/data=!3m1!5s0x487740b7a71f80cd:0x7edf0a3a65a277ec!4m6!3m5!1s0x487740b774ec01f9:0xc683fe0e73acbc9!8m2!3d52.3729954!4d-1.2626076!16zL20vMDkzM2hi?entry=ttu).
CV21 2JR (https://www.google.com/maps/place/Market+Way,+Rugby+CV21+2JR/@52.3734047,-1.2638993,18.5z/data=!4m6!3m5!1s0x487740b77493850f:0x2ae7e73152084e4f!8m2!3d52.3731571!4d-1.2631906!16s%2Fg%2F1tgwrs2j?entry=ttu) is show here.
Please see pdf image showing the side entrance on North St beside Natwest (green line) where the car went a few feet, turn, waited then left (red line). I've put both images on the pdf showing the post codes on Google. (https://i.ibb.co/yPLPS8W/Natwest-vs-Shopping-Centre.jpg) Ofcourse Google could be wrong and it might be inadmissible in court but for certain, that road is North Rd not Market Hall.
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My appeal was rejected.
Below is their response. I'll draft my POPLA appeal and post for comments.
PAYMENT DUE DATE: 11th March 2024
TOTAL AMOUNT DUE: £60.00
Dear xxx
Thank you for your appeal against the above Parking Charge Notice (PCN) on behalf of the driver. We have carefully considered your appeal, however on this occasion the appeal has been rejected for the following reason;
Whilst we note the comments and reason for appeal, as per our photographic evidence, the vehicle was parked in contravention of the advertised terms and conditions. As the vehicle was parked in an area where no parking is allowed, we can confirm that this PCN has been issued correctly.
You have now reached the end of our internal appeals procedure and therefore you now have two options; you can either pay or appeal to POPLA - you cannot do both:
You can pay the total amount due as shown above via the following payment options;
Call us on: 01302 513232
Pay online: www.pcnpayments.com
Send a postal order: Premier Park Ltd, PO Box 624, Exeter, EX1 9JG
Or, you can appeal to an Independent Appeals Service, POPLA (Parking on Private Land Appeals) using the POPLA reference code provided above. Please note, should you decide to appeal to POPLA and your appeal is subsequently rejected or you withdraw your appeal, the option to pay a discounted amount will no longer be available and the full amount of the PCN will become due. Please note, if you pay the PCN prior to appealing to POPLA, your appeal will be withdrawn as you will have accepted liability in full.
If you decide to appeal to POPLA, you will need to visit their website, www.popla.co.uk where further details of how to appeal (either online or by downloading the relevant forms) can be found. If you are unable to access their website, please call us for further information on how to obtain the forms. Please ensure your POPLA Reference Number, as noted above, is quoted on all correspondence to POPLA. You have 28 days from the date of this email to submit an appeal to POPLA. If you appeal to POPLA we will suspend recovery activity on the PCN and the charge will not increase until the appeal has been determined.
By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.
If you do not make payment or submit an appeal to POPLA within the relevant timeframe, the outstanding PCN may be passed to our appointed debt collection agency for further action. All costs associated with this process will be added to the amount outstanding.
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Unless you are stuck in traffic, if a car is stationary for 15 minutes it is parked, regardless of whether the driver remains in the vehicle, whether the engine is running or whether he is picking his nose.
If you want to peddle that tripe in your appeal, that's your choice, but don't peddle it here.
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A couple of points after reviewing this thread… OP, you stated early on the following:
The driver and passenger went to pick up an order at the restaurant beside the Natwest bank.
From the cctv the wait was at least 15mins.
You then go on to state in your appeal:
The driver did not leave the car at any time nor turn off the engine of the car. The car was not parked and there was no intention to park at any time.
What exactly occurred? Did the driver park the car, switch off the engine and leave the car unattended for 15 minutes or was the car just stopped for a short duration in order to load or unload?
Would someone explain why the NTK is not compliant e.g. it was given in time, it contains the mandatory warning etc?
If it's compliant, then why is the OP claiming - without staring why - it is not?
I wrote early 9n in this thread that there could be a technical flaw with the NtK due to some wording without going into detail at this stage as it will not be for the PPC to determine. As far as I was concerned, there is only a requirement to raise the matter of the flawed NtK in order that it can be dealt with later by a legally trained mind, either at POPLA (questionable) or by a judge.
The technical point is that the wording in the warning to the keeper does not strictly comply with PoFA, which it must do.
PoFA paragraph 9(2) states that a NtK must-
9(2)(f) warn the keeper that if, after the period of 28 days…
The NtK does not warn the keeper. It advises the keeper.
Thank you B789 for your contribution.
The driver and passenger drove to the location in order to pick up an order at the restaurant.
I provided this background because you asked that I fill in some detail.
Can you please fill in some detail as to why the car was at that location? You say that the driver never left the car. However, that is irrelevant. How long was the car stopped, if at all, at that location?....
Was the driver picking up or dropping off a passenger?
The driver and passenger went to the location in the car. The passenger got out of the car and walked to the restaurant to pick up the order while the driver waited in the car. The wait was about 15mins.
Below is my intended reply.
I'll appreciate final comments please.
Thank you.
I appeal as the registered keeper.
I dispute your 'parking charge' and deny any liability or contractual agreement. Further to, I will be making a complaint about your predatory conduct to your client landowner.
There will be no admissions as to who was driving and no assumptions can be drawn.
I am not obliged to identify the driver and decline to do so. You cannot transfer the driver’s purported liability to me. You have not served me with a Notice to Keeper (NtK) that strictly complies with Schedule 4 to the Protection of Freedoms Act 2012 (PoFA) and it is now too late to do so.
According to the driver, no contract could have been agreed as there were no signs that were prominent or even visible at the location, which is a breach of the BPA Code of Practice (CoP), section 19.2.
From the photos, it can be seen that the signs are beyond the gate and a camera mounted before the signs. This arrangement is evidently not in good faith as it all seems set to ambush the driver only for them to realise when it is too late.
The position of the signs does not give the driver an option to read the signs, terms and conditions decide whether or not they wish to enter into such “agreement”. By the time the driver gets to the signs, they’re already in.
Furthermore, according to your Parking Charge Notice (PCN), any signs at the location would have been “forbidding” if they stated “No Parking”, thus proving that there was no contract by conduct on offer.
Your PCN states that it is being issued because of “Parking In No Parking Area”.
The driver did not leave the car at any time nor turn off the engine of the car. The car was not parked.
The charge for parking could not have been agreed as there was no sign at the entrance of the road to that effect. This is in breach of BPA Code of Practice (CoP), section 19.1. “…. the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”
No entrance signs. This is in breach of S.19.2 BPA CoP. “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. Entrance signs must follow some minimum general principles and be in a standard format”.
No contract to park could have been created or agreed. Therefore, there is no debt owed by the driver and I am not liable as the registered keeper.
I now require you to cancel the parking charge or issue me with a POPLA code where a trained assessor will likely agree with me that the PCN has not been issued correctly.
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A couple of points after reviewing this thread… OP, you stated early on the following:
The driver and passenger went to pick up an order at the restaurant beside the Natwest bank.
From the cctv the wait was at least 15mins.
You then go on to state in your appeal:
The driver did not leave the car at any time nor turn off the engine of the car. The car was not parked and there was no intention to park at any time.
What exactly occurred? Did the driver park the car, switch off the engine and leave the car unattended for 15 minutes or was the car just stopped for a short duration in order to load or unload?
Would someone explain why the NTK is not compliant e.g. it was given in time, it contains the mandatory warning etc?
If it's compliant, then why is the OP claiming - without staring why - it is not?
I wrote early 9n in this thread that there could be a technical flaw with the NtK due to some wording without going into detail at this stage as it will not be for the PPC to determine. As far as I was concerned, there is only a requirement to raise the matter of the flawed NtK in order that it can be dealt with later by a legally trained mind, either at POPLA (questionable) or by a judge.
The technical point is that the wording in the warning to the keeper does not strictly comply with PoFA, which it must do.
PoFA paragraph 9(2) states that a NtK must-
9(2)(f) warn the keeper that if, after the period of 28 days…
The NtK does not warn the keeper. It advises the keeper. Yes, I appreciate that this could be argued as splitting hairs. However, whilst it is likely to be up to a judge to agree or disagree whether this discrepancy in significant wording alters any facts, it should be raised.
The point of how it is argued is in the definitions of “to warn” or “to advise”, specifically in relation to statutes and legal matters. The term "must" in legal language generally indicates a mandatory requirement rather than a suggestion or advisory. Therefore, the failure to meet this requirement could potentially invalidate the ability of the operator to hold the keeper liable.
However, the interpretation and application of legal statutes can be nuanced and subject to legal debate. When something is required by law, it means there are consequences for failing to do it. If you are legally obligated to warn someone about potential risks or dangers and you don't, there could be legal repercussions such as, in this case, transfer of liability from the driver to the keeper. On the other hand, when something is advised, it is more of a suggestion or recommendation without the same level of legal backing.
At the end of the day, it is a point of dispute and is raised as just one of a number of arguments. Having discussed this with a district judge, he told me that if it was raised, he would be obliged to consider that fact. As to whether it would be conclusive, was not determined and it would be up to the individual judge as to whether they agreed or not.
Hence my reason for suggesting that the validity of the NtK to hold the keeper liable under PoFA is raised. I agree that the PPC is not going to consider this and POPLA are just as likely to disappoint on this single issue. However, if this ever progresses to Plan D, it is a valid point to include in a defence.
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Would someone explain why the NTK is not compliant e.g. it was given in time, it contains the mandatory warning etc?
If it's compliant, then why is the OP claiming - without staring why - it is not?
Can we look at what is and is not present and then compare, contrast and conclude rather than launch in with it's not this and it's not that!
The boundary between the public road and private controlled land is marked by a fence within which is a pair of gates which are open at all times to give access to the land. There is not an 'Entrance' sign of the form mandated under the BPA CoP displayed on the fence or gates.
The first sign on the land is erected ***** - see photos.
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If you’re determined to fight this, then the
bribe discount should be ignored.
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Noted. Shall remove the reference to the restaurant.
Is there any disadvantage to sending the appeal today? Ie 14 days not waiting till about the 28th day?
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I wouldn't admit to anything to do with the restaurant. It would be enough to just say that the driver was only loading and unloading, which is not parking.
As to the deadline for submitting,itting the appeal, that should be, for a BPA member, before midnight on the 28th day after the date the NtK was served, which is normally the 2 working days after the date on the NtK (not the date of the alleged infringement).
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I can amend that to add that "the driver dropped off a passenger to pick up an order from the restaurant beside the Natwest bank on the premises".
Am I to submit my appeal by 11:59pm tonight?
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If you feel it strengthens your appeal, then leave it in. However, you have not stated why the driver was there in the first place.
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Thanks for the prompt response B789.
I stated that as the driver did not park. The PCN says the driver parked in a no parking area.
Photos:
https://ibb.co/4YT7Wjd
https://ibb.co/XXSwxSf
https://ibb.co/Hhbz2Sx
https://ibb.co/album/Hp1RMf
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I'd leave out this bit: "The driver did not leave the car at any time nor turn off the engine of the car. The car was not parked and there was no intention to park at any time." as it is not relevant.
Otherwise, it would be good to go. It is probably worth getting an opinion from other more legally trained minds, just to be sure.
The PPC will likely refuse the appeal but you will get a POPLA code and an appeal to Them is much more likely to succeed, especially on the signage.
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Thank you B789 and everyone else who has contributed.
HC Anderson, the driver and RK are indies.
Below is what I intend to send to them. Please let me now your opinion.
The PCN is dated 27th January with 14 days to pay the reduced charge £60.
Today is day 13 by my count, so I can send the appeal till 11:58pm tomorrow the 10th of February?
I appeal as the registered keeper.
I dispute your 'parking charge' and deny any liability or contractual agreement. Further to, I will be making a complaint about your predatory conduct to your client landowner.
There will be no admissions as to who was driving and no assumptions can be drawn.
I am not obliged to identify the driver and decline to do so. You cannot transfer the driver’s purported liability to me. You have not served me with a Notice to Keeper (NtK) that strictly complies with Schedule 4 to the Protection of Freedoms Act 2012 (PoFA) and it is now too late to do so.
According to the driver, no contract could have been agreed as there were no signs that were prominent or even visible at the location, which is a breach of the BPA Code of Practice (CoP), section 19.2.
From the photos, it can be seen that the signs are beyond the gate and a camera mounted before the signs. This arrangement is evidently not in good faith as it all seems set to ambush the driver only for them to realise when it is too late.
The position of the signs does not give the driver an option to read the signs, terms and conditions decide whether or not they wish to enter into such “agreement”. By the time the driver gets to the signs, they’re already in.
Furthermore, according to your Parking Charge Notice (PCN), any signs at the location would have been “forbidding” if they stated “No Parking”, thus proving that there was no contract by conduct on offer.
Your PCN states that it is being issued because of “Parking In No Parking Area”.
The driver did not leave the car at any time nor turn off the engine of the car. The car was not parked and there was no intention to park at any time.
The charge for parking could not have been agreed as there was no sign at the entrance of the road to that effect. This is in breach of BPA Code of Practice (CoP), section 19.1. “…. the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”
No entrance signs. This is in breach of S.19.2 BPA CoP. “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. Entrance signs must follow some minimum general principles and be in a standard format”.
No contract to park could have been created or agreed. Therefore, there is no debt owed by the driver and I am not liable as the registered keeper.
I now require you to cancel the parking charge or issue me with a POPLA code where a legally trained assessor will likely agree with me that the PCN has not been issued correctly.
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Thank you.
I'm prepared to fight it if my chances are good and I can see how others have been successful in similar situation.
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There are only 2 signs which are not necessarily obvious nor prominent. There are no entrance signs indicating that you are entering private land which is being managed and that there are terms and restrictions in place.
Also, from the photos you have provided and the GSV view, it would appear that there are only 2 signs on the wall to the right as you drive in. One is sign that Staes that parking restrictions are in place, which means that parking is allowed, subject to restrictions. The other sign is just a list of prohibitions with a minuscule notice that £100 will be charged if you enter into a contract by conduct.
You cannot enter into a contract by conduct if there is no offer of a contract in the first place. Whilst you are dealing with an intellectually malnourished parking company, they are not likely to uphold any appeal. You will need to convince a POPLA assessor that the PCN has not been issued correctly based on any legalities or breaches of the BPA CoP. Even if POPLA dismiss the appeal, it is not binding on the motorist.
Are you prepared to go all the way and fight this at a hearing where a judge would decide whether you owe any debt to the PPC?
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Please see five new photos uploaded showing the signs at the private road.
It says £100 PCN on the second sign.
https://ibb.co/album/Hp1RMf
https://ibb.co/album/Hp1RMf
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OP, who is 'we'?
In simple terms, the registered keeper is either an individual or a company.
So, is 'we' a company? If so, are you a vehicle-hire company? If so, separate considerations apply.
If another form of company then remember that nothing formal may be submitted other than by an officer of the company.
But before getting too immersed in procedure, who is 'we' i.e. a person or company?
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For a PoFA compliant NtK to be able to hold the keeper liable, as far as dates are concerned, it must be delivered by day 14 after the alleged contravention. In your case, the alleged contravention was on Sunday 21st January. Unless you have an envelope with a different dated post mark, the date on the NtK says Saturday 27th January. It is deemed as having been delivered (served) 2 working days later. In this case on Tuesday 30th January.
21st January to 30th January is 9 days and so, as far as it relying on PoFA, it is able to do so as far as the requirements of service of the NtK.
You have not entered into a contract by driving on to the relevant land just because they have a sign that states that it is private land. There must be sufficient signs that are prominent enough to be noticeable by the driver. The driver should not need to go searching for a sign. There should be a sign very near where the vehicle was parked.
The driver is not obliged to read the sign to have entered into a contract by conduct. However, if there was no obvious or prominent sign near the vehicle and it can be proven evidentially by photo, no contract could have been formed.
Additionally, the wording on the sign and more specifically the charge for breaching the terms of the contract must specify the sum and be adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. In many cases, the charge of £100 (or whatever the charge for a location is) is either hidden or difficult to read in a relatively small font or anything that does not adequately bring it to the notice of a driver.
You can have a read of PoFA and get your own understanding of here:
https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
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Thank you.
When are thy supposed to have provided the Notice to Keeper (NtK)?
The incident happened on the 21st and they wrote on the 27th of January.
Someone on a Facebook group has kindly offerd to take the photo tomorrow. I hope they remember.
Someone else had a similar situation and posted this.
"Same happened to me...they say you have entered into the terms and conditions when entering through the gates as the signs on the left say..I explained that I wasn't aware I was agreeing to the terms as once in the gate the camera has you so therefore If the sign was located before the gates then that would of given me the option to make a decision if I wanted to enter into their terms and conditions..they also said I was parked.. however I explained that I was stopped as the engine was still running (they couldn't prove it wasn't) and I had not vacated the vehicle..to be " parked" with the intention of leaving the car then you must vacate the vehicle and turn the engine of...I won my argument and they dropped the fine ..hope that helps."
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As it is unlikely that any appeal to the operator will succeed, it may be best to make the initial appeal as minimal as possible in order to get a POPLA code. I don’t know what I was thinking when I suggested the above. :-[
Maybe try this:
I appeal as the registered keeper. I am not obliged to identify the driver and decline to do so. You cannot transfer the driver’s liability (if any) to me as you have not served me with a Notice to Keeper (NtK) that strictly complies with Schedule 4 to the Protection of Freedoms Act 2012 (PoFA) and it is now too late to do so.
According to the driver, no contract could have been agreed as there were no signs that were prominent or even visible at the location, which is a breach of the BPA Code of Practice (CoP), section 19.2. Furthermore, according to your NtK, any signs at the location would have been “forbidding” if they stated “No Parking”, thus proving that there was no contract by conduct on offer.
No contract to park could have been created or agreed. Therefore, there is no debt owed by the driver and I am not liable as the registered keeper.
I now require you to cancel the parking charge or issue me with a POPLA code where a legally trained assessor will likely agree with me that the PCN has not been issued correctly.
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My personal view would be to leave out the request for a photo of the signage. They're not required to provide it at this stage, and I'd suggest an appeal is better focused on stating why you don't owe the money, rather than providing them opportunities to say why you do.
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It is unlikely that the restaurant has any influence on the PPC so that avenue is not likely to result in any cancellation. However, you may as well try... just in case.
Re PCN number:
I dispute your 'parking charge' as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.
There will be no admissions as to who was driving and no assumptions can be drawn. Whilst your Notice to Keeper (NtK) attempts to transfer liability from the driver to the keeper using some limited wording from Schedule 4 of The Protection of Freedoms Act 2012 (PoFA), it fails on several points which I will eagerly put to POPLA and, if necessary, to a judge.
I require an explanation of the allegation and the evidence you are relying on. Most importantly, I require a close-up, actual photograph of the signage you contend was at the location on the material date, a photograph showing the location of the sign on the premises, photos showing the text on the signage, as well as your images of the vehicle in relation to any signs under the same nighttime lighting conditions.
The driver states that there is no entrance sign at the location in breach of the BPA Code of Practice (CoP), paragraph 19.2. Additionally, the driver states that there were no obvious or prominent signs visible at the time they stopped at the location.
If no signs were visible or prominent, then there could not be any offer of a contract. Even if any signs had been visible and prominent, no contractual term could have been breached because the NtK states that the signage said "NO PARKING" which is not an offer.
In order for a contract to be agreed by conduct, there has to be an agreement, ie:
A contract is an agreement. Such agreements MUST include:
- An offer
- Acceptance of that offer
- Consideration - something of value must pass both ways
- Intention to create legally binding obligations.
Agreements meeting those conditions are enforceable in law.
The signs at this location, according to the NtK, are what are known as forbidding. They contain no offer - "NO PARKING" is not an offer. If there is no offer, then there can be no contract.
By stopping, the driver was not agreeing to a contractual term but was potentially trespassing. That is a completely different area of law. No sign can set out contractual terms for trespass.
Additionally, there is no obvious signage that mentions that CCTV or ANPR is being used to enforce any conditions. This is a breach of the BPA CoP section 22, the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).
In light of the above points, I suggest that the PCN is cancelled or else please provide a POPLA code so that I can put this to an assessor with some legal training and is able to better understand the validity of the case I am making as the keeper of the vehicle.
The above is just a suggestion but it may be worthwhile waiting to see what other forumites suggest before submitting your appeal.
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Please note that any further correspondence from yourself or your agent with respect to this vehicle implies that you wish for it to be read and thereby agree to a charge of £100 per correspondence. Each corresponding charge increasing by 50% upon every new correspondence
Leave this bit out, it's nonsense. They're allowed to contact you to pursue an alleged debt, and you can't charge them for doing so.
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The driver and passenger went to pick up an order at the restaurant beside the Natwest bank.
From the cctv the wait was at least 15mins.
I rang the restaurant but received no reply. I'm not sure they have dealing with the car park company.
Below is the intended reply.
Re PCN number:
I dispute your 'parking charge' as the keeper of the vehicle.
I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.
There will be no admissions as to who was driving and no assumptions can be drawn.
I require an explanation of the allegation and your evidence.
Most importantly, I require a close up actual photograph of the signage you contend was at the location on the material date, photograph showing the location of the sign on the premises, photos showing the text on the signage, as well as your images of the vehicle.
From Google's Street View photos I see that the painting on the road says "keep clear".
There was no contract to be breached because the signage is prohibitive, "forbidding", "No Parking" means they contain no offer - "you must not park here" is not an offer.
In order for a contract to be agreed by conduct, there has to be an agreement, ie:
An offer
Acceptance of that offer
Consideration - something of value must pass both ways and
Intention to create legally binding obligations.
There is no mention that CCTV or ANPR is being used. This is another breach of the BPA CoP, the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).
Please note that any further correspondence from yourself or your agent with respect to this vehicle implies that you wish for it to be read and thereby agree to a charge of £100 per correspondence. Each corresponding charge increasing by 50% upon every new correspondence.
However, where said correspondence is simply to notify the keeper that all demands and actions with respect to your "parking charge" or this vehicle are forthwith concluded and nothing further will be pursued by yourselves or other person deriving authority from you, there shall be no charge for that correspondence.
NAME AND POSTAL ADDRESS OF THE KEEPER IN THE RELEVANT BOX ON THE APPEALS PAGE.
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The PCN is dated 27th January 2024, to be paid within 14 days ie 10th of February.
The time stamps from the CCTV show a 15min wait.
I've rang the restraunt to see if they could help but go no reply.
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I think the GSV picture is recent enough to show that they have not complied with the BPA CoP with regards to informing motorists that they are entering on to private land and that there are terms and conditions for doing so.
I can see from the GSV that there is a sign to the right after the gate and maybe one further along. However, it is difficult to see if they are compliant enough to forma contract, especially as they are unlit and not facing a driver so as to alert them to the fact that they are terms of parking on private land.
No contract can have been entered into. What is the date of the NtK and the deadline to submit your Plan B appeal? Show us here, what you intend to put in that appeal so we can give you an idea on any corrections that may necessary.
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Yes, that is the location (https://www.google.com/maps/place/NatWest+Rugby/@52.3738059,-1.2624609,3a,19.6y,263.79h,88.64t/data=!3m6!1e1!3m4!1s9dEqm8RGJrIuwgkqFBwmLQ!2e0!7i16384!8i8192!4m16!1m8!3m7!1s0x487740b79cefbc5f:0x2fb87b5830e11d72!2sNatWest+Rugby!8m2!3d52.3736972!4d-1.2626328!10e5!16s%2Fg%2F1tgclt31!3m6!1s0x487740b79cefbc5f:0x2fb87b5830e11d72!8m2!3d52.3736972!4d-1.2626328!10e5!16s%2Fg%2F1tgclt31?entry=ttu). Over 100 miles away.
The driver and passenger went to pick up an order at the restaurant beside the Natwest bank.
Below is the intended reply.
Re PCN number:
I dispute your 'parking charge' as the keeper of the vehicle.
I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.
There will be no admissions as to who was driving and no assumptions can be drawn.
I require an explanation of the allegation and your evidence.
Most importantly, I require a close up actual photograph of the signage you contend was at the location on the material date, photograph showing the location of the sign on the premises, photos showing the text on the signage, as well as your images of the vehicle.
From Google's Street View photos I see that the painting on the road says "keep clear".
There was no contract to be breached because the signage is prohibitive, "forbidding", "No Parking" means they contain no offer - "you must not park here" is not an offer.
In order for a contract to be agreed by conduct, there has to be an agreement, ie:
An offer
Acceptance of that offer
Consideration - something of value must pass both ways and
Intention to create legally binding obligations.
There is no mention that CCTV or ANPR is being used. This is another breach of the BPA CoP, the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).
Please note that any further correspondence from yourself or your agent with respect to this vehicle implies that you wish for it to be read and thereby agree to a charge of £100 per correspondence. Each corresponding charge increasing by 50% upon every new correspondence.
However, where said correspondence is simply to notify the keeper that all demands and actions with respect to your "parking charge" or this vehicle are forthwith concluded and nothing further will be pursued by yourselves or other person deriving authority from you, there shall be no charge for that correspondence.
NAME AND POSTAL ADDRESS OF THE KEEPER IN THE RELEVANT BOX ON THE APPEALS PAGE.
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Is this the location that the car was stopped at? (the image can be clicked to a GSV of the location)
(https://i.ibb.co/SVpBNWS/Screenshot-2024-02-02-at-11-08-31.png) (https://maps.app.goo.gl/wMF7jMJHZnU2Bbvh9)
If so, there is no sign at the entrance stating that it is private land. This is breach of the BPA Code of Practice, namely paragraph 19.2. Read it here: https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf
They've had since at least July 2018 to have the necessary signage erected.
If they do not cancel on initial appeal, this is winnable at POPLA.
Edited to add; There is no mention that CCTV or ANPR is being used which is another breach of the BPA CoP, never mind a breach of the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).
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Not quite correct so far IMO.
The driver passes a sign which states that the land beyond is private and where parking controls apply.
The driver is advised in this sign to check the detailed Ts and Cs on other signs which would be in plentiful supply and clear.
The driver has to exit the car to read these, staying in the car is no excuse or defence.
I disagree with b789 as regards this being a no parking/stopping area and therefore no contract was offered. The exact terminology is not key IMO, instead for this to apply it is whether without exception all the controlled land prohibited parking, not just this part. IMO, if the controls indicated a mix of terms including those which applied to parking correctly then the argument that where the driver was is somehow excluded from this offer would fail i.e. you may enter and park provided you *** and *** and do not park on **** parts marked as follows ****. A breach of any of these conditions would mean the driver agreed to pay a parking charge (AKA penalty) of £***.
It's a set menu, not a la carte.
But as others have posted we need more info.
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Can you please fill in some detail as to why the car was at that location? You say that the driver never left the car. However, that is irrelevant. How long was the car stopped, if at all, at that location?
You say that the driver did not see any signs. Can you go back and get some photos of the location showing the lack of signage? That is a very strong point for defeating this.
Whilst the PPC may try and insist that double yellow lines (DYL) mean no parking, that only applies on the public highway. DYL do not mean no stopping. Too many people misunderstand the meaning of DYL. As long as there are no kerb blips associated with the DYL, you are allowed to stop for loading and unloading purposes.
The definition of any yellow lines in the Highway Code states:
(https://i.imgur.com/K183dYW.png)
As for what they mean on private land is anyones guess. It is up to the landowner or their agent to provide an interpretation.
Was the driver picking up or dropping off a passenger?
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Thank you for your prompt response.
We didn't receive any Notice prior to this one where it is inferred we would have received it but hadn't paid.
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It says in the last sentence of the first paragraph the PCN has not been paid in full. That is incorrect. We didn't receive anything.
The driver was in the car all the time and hadnt seen any sign.
I don't quite understand how "we didn't receive anything" relates to "their PCN has not been paid in full". Can you please elaborate on that so my confusion can be corrected?
That aside, this is a defendable but will probably have to go as far as Plan C. Plan A, depending on your reasons for being at the location, have you tried to contact the landowner and get them to get this PCN cancelled?
In order to be able to progress to Plan C, you must do Plan B which is an appeal to Premier Park, which they no doubt will reject but that rejection gets you a POPLA code which is required to progress to Plan C.
Hopefully, a good POPLA appeal will be successful. However, if it isn't, never mind. A POPLA decision is not binding and you would then progress to Plan D which is have a judge decide whether you owe a debt to Premier Park.
Whilst the NtK is mostly PoFA compliant, there are technical issues with it that could be argued that invalidate it being able to hold you, the registered keeper liable for the charge. So, appeal only as the keeper, not the driver. Do not identify the driver with words like "I parked..." or "I drove..." etc.
They are claiming a brach of contract but there was no contract to be breached because the signage is prohibitive. In order for a contract to be agreed by conduct, there has to be an agreement. Such agreements MUST include:
An offer
Acceptance of that offer
Consideration - something of value must pass both ways and
Intention to create legally binding obligations.
If the signs are what is known as "forbidding", "No Parking" means they contain no offer - "you must not park here" is not an offer.
By stopping there, you were not agreeing to a contractual term, you were potentially trespassing. That is a completely different area of law. No sign can set out contractual terms for trespass.
So, appeal as the keeper and tell them that, according to the driver, there were no prominent or obvious signs visible from within the vehicle that offered any contract to park at the location for £100. You deny any liability as the registered keeper.
After the inevitable rejection, you move on to a POPLA appeal which will go much further into the legal and BPA Code of Practice details as well as technicalities that make the NtK non-PoFA compliant. POPLA does not consider mitigating circumstances, only whether the PCN/NtK has been issued correctly according to the BPA CoP and the law.
Show us what you propose to put in your Plan B appeal to Premier Park before submitting anything.
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If you haven't paid the PCN, how is their claim that it has not been paid in full incorrect?
The rest of it might be utter bollox, but the bit you chose to refute appears to be true.
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Hi all,
We just received this in the post.
It says in the last sentence of the first paragraph the PCN has not been paid in full. That is incorrect. We didn't receive anything.
The driver was in the car all the time and hadnt seen any sign.
Please see link to PCN https://ibb.co/album/Hp1RMf
Thank you.