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Messages - b789

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1
It's your money and as long as you don't mind being marked as a "mug" for future scamming, by all means try and pay them. Don't think for a minute that you are dealing with a company that cares about your frustration of contract. They are a firm of ex-clamper thugs whose only interest is how much of your money that can scam out of you.

They have been labeled "cowboys" and "scammers" in parliament. When the upcoming "Private Parking Code of Practice" Act becomes law, hopefully later this year or early next year, they won't be allowed to rip off victims in circumstances like yours where you were broken down. However, for now, your best option is to defend any claim should they decide to pursue you for the alleged debt.

As you have already experienced, they don't make it easy for you to pay the bribe discount, charge. They have now upped it to £100. You can decide that you don't mind paying them or you can fight it. Your choice.

If this ever got to court, your defence would include the fact that you were no "parked". You were broken down which is a vicissitude that has been used as a defence on many cases. The appeal court decision in Jopson v Homeguard [2016] B9GF0A9E, is the persuasive argument that would be used.

One question though... why did you disappear for 15 minutes? Were you aware that you were on private land and that you may be liable for a charge? Was the NtD on your windscreen PoFA compliant and did the follow up NtK arrive within the prescribed time and with the necessary wording to hold the keeper liable? The driver and the keeper are two separate legal entities in private parking cases.

2
Always "Other". Do not be fooled into ticking something that is making you admit to being the driver.

Just create your appeal as a PDF document and upload it.

You can show us the content before you send it if you'd like a critique.

The POPLA deadline is actually 32 days after the date it is issued, even if they say 28 days.

3
The NtK is not PoFA compliant at all. What makes you think it is compliant?

PoFA 9(e) {The Notice MUST} state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i) to pay the unpaid parking charges; or

(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

Nowhere does it state that. Nowhere is there any invitation for the keeper to pay the charge. Nowhere does it state that if the keeper was not the driver they should notify the creditor of the name and address for service for the driver or to pass the notice to the driver.

The NtK mentions the "motorist". There is no such term in PoFA. The "driver is liable for any alleged breach of contract. They don't know who the driver is. They only know who the "keeper" is. The driver and the keeper are two separate entities. No inference can be made that the keeper must also be the driver.

PoFA 9(2)(b), (c}, (d)(i) and (ii), (e)(i), and (f)(i) and (ii)  are not complied with.

Additionally, they have breached the BPA ATA CoP 21.5 in that the images on the NtK must bear an accurate time and date stamp applied at the point the picture was taken. It does not matter if they are on the file images when you view them on their website. They must be unaltered and not cropped just so they fit on the NtK.

A recent POPLA appeal was successful on this point alone:


POPLA case 2413353469

Decision: Successful
Assessor Name: ***** Stanton

Assessor summary of operator case

The operator has issued the PCN because the vehicle was parked on the site and the pay and display permit did not cover the date and time of parking.

Assessor summary of your case

The appellant has raised the following grounds of appeal:

  • The signage is inadequate
  • The Notice to Keeper (NTK) does not meet PoFA requirements.
  • The NTK does not accurately describe the circumstances so there is no keeper liability.
  • The operator has not shown that the individual it is chasing is the driver.
  • No landowner authority
  • Grace period- Non compliance with the British Parking Association (BPA).
  • No evidence of the period parked.
  • Images of the vehicle contained within the NTK are not compliant with the BPA.
  • The ANPR system is not reliable or accurate. The appellant has provided a document detailing their appeal and they have commented on the operator’s case file.

Assessor supporting rational for decision

In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. I am allowing this appeal, with my reasoning outlined below:

The Images of the vehicle contained within the NTK are not compliant with the BPA. The appellant has stated in the comments that although the operator has provided full date stamped photographs in the case file, the images on the NTK are not compliant.

I acknowledge the appellant’s grounds of appeal and I have reviewed the evidence provided by the operator. The British Parking Association (BPA) Code of Practice Section 21.5a states: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

I have reviewed the copy of the NTK provided by the operator and I am not satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice.

These images are not date stamped and after seeing the full images in the case file they appear to have been digitally altered or cropped to fit on the NTK. This is especially apparent on the colour image on the NTK.

The image recorded of the vehicle entering the site is also not very clear I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.


So, the Assessor says the images in the NtK are "cropped to fit on the NTK" and not date stamped.

This was the POPLA appeal as submitted:

https://www.dropbox.com/scl/fi/y410nf9lbh2x8q4l6byan/POPLA_ECP_redacted.docx?rlkey=xggasv1r1l58guloq8m6vd4dt&dl=0

4
Easy one to beat. Britannia are not relying on PoFA 2012 to hold the keeper liable. Only the driver is liable.

They have no idea who the driver is. Do not identify the driver. You appeal only as the keeper with the following:

This is an appeal by the registered keeper - No driver details will be given. Please do NOT try the usual trick of asking for driver details in order to get around the fact your NtK does not comply with PoFA. As there is no keeper liability, therefore, liability cannot flow from the driver to the keeper and so, is an automatic win at POPLA. Please cancel the notice or issue a POPLA code at which point you will auto withdraw.

Nothing more than that is needed so don't try and embellish it.

6
In March 2022, according to GSV, there was a sign that says "Permit Parking Only". You've not shown us the dates or the back of the NtK so it is impossible to check whether the NtK fully complies with the requirements of PoFA in order to be able to hold the keeper liable for the charge.

From what we can see, the NtK is, loosely compliant with the requirements of PoFA, at least enough to rule out any chance of the IAS considering not so. However, if, as you claim, there was no signage that brought adequate notice to the driver of the sum charged for unauthorised parking and was not adequate to bring the charge to the notice of drivers who park vehicles on the relevant land, then you nay have a defence.

Can you get some photos of the signage at the location with an overview to show if the notices they claim are there are adequate in oder to bring to the notice of the driver, the sum charged for parking there? Also, what is the keeper or the drivers relationship to the person that went in to do their task"? Is that person or the driver or the keeper a resident/leaseholder of the property?

Have you tried Plan A, getting the landowner/leaseholder of there property to get the PCN cancelled? IF there is a lease for the property, what does it say about parking and rights of way? What does it say about requiring a permit? What the lease doesn't say about parking is equally important.

You need to understand that remaining in the vehicle with or without hazard lights and with or without the engine running for more than 5 minutes will be considered as having considered the signage and agreeing to the terms on the signage. In other words, the driver entered a contract by conduct with the PPC. However, if it can be shown that the vehicle was parked in order to load or unload goods or drop or pick up passengers or was stuck there due a vicissitude, that is not considered parking.

So, the dates on the NtK need to be shown. The back of the NtK needs to be seen. Can you get some photos of the location including any entrance signs and other signs at the location. Ideally, any photos should show the view from where the vehicle was parked/waiting in order to see if the signage was prominent and adequate enough to bring to the attention of the driver that there were terms that should have been adhered to in order to avoid paying a charge. How is a driver supposed to get a permit to park there?

7
You should be checking your MCOL history on a weekly basis to see when the DQ was sent. As soon as it showed as sent you could have downloaded the form and sent it off. No big deal as you are given extra time to submit it. It is all part of the expected process.

I cannot check to see on Imgur the claim form. Please remind us who is acting for the claimant. Is it DCB Legal?

Once you have returned your N180DQ, the claim will be assigned to the small claims track and sent to your local court. You will then receive directions from your local court with a hearing date and a date by which your WS must be filed. If this is a DCB Legal claim, it will never reach a hearing as they will discontinue just before the hearing.

Once the claim has been allocated to your local court, you can disregard MCOL as the CNBC will have no further part to play in this.

8
You have 7 days from "service" of the letter. "Service" is 5 days after the date of the letter. So if the letter is dated 5th April, the date of service is 10th April. So you have until 4pm on Wednesday 17th April to submit your N180DQ.

So you now complete the form you have shown and send it as a PDF attachment to the NEW email address which is dq.cnbc@justice.gov.uk

If you have any questions about the form just ask.

9
In 1.1 you incorrectly state "If the land is not 'relevant land' then there cannot be any driver liability for a parking charge...". I think you mean that there cannot be any keeper liability.

I found an old but successful POLA appeal that worked and includes a few extra points APCOA will have to rebut:

POPLA Ref ...................
APCOA Parking PCN no .......................

A Notice to Keeper (NtK) was issued on 14th February 2024 and received by me, the registered keeper of ........ for an alleged contravention of ‘Dropping off or picking up outside of designated areas’ at Luton Airport. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Registered keeper cannot be liable
2) Amount demanded is a penalty
3) Not relevant Land under PoFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
4) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
5) Misleading and unclear signage
6) No landowner contract nor legal standing to form contracts or charge drivers
7) Photo evidence appears doctored
8) No consideration Period Given (Clause #13 BPA Code of Practice)

1) APCOA cannot hold the registered keeper liable. As a matter of fact and law, APCOA (as a longstanding BPA Parking operator) will be well aware that they cannot use the PoFA provisions because this is not 'relevant land'. If the Airport wanted to hold owners or keepers liable under Airport Byelaws, that would be within the landowner's gift and another matter entirely, but not only is that not pleaded, it is also not legally possible because APCOA is not the Airport owner and the 'parking charge' is not and never attempts to be a penalty. It is created for APCOA’s own profit (as opposed to a byelaws penalty that goes to the public purse) and APCOA has relied on contract law allegations of breach against the driver only. The registered keeper cannot be presumed to have been the driver, nor pursued under some twisted interpretation of the law of agency.

2) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

3) Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of PoFA 2012. "As the site is not located on ‘relevant land’, the operator is unable to rely on PoFA 2012 in order to transfer liability to the keeper. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal."

4) In cases with a keeper appellant, yet no PoFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the PoFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the PoFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the PoFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

"There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {PoFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass
."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 3 above.

5) The alleged contravention, according to APCOA, is in 'Dropping off or picking up outside of designated areas'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. APCOA are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

6) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to issue parking charges, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOAParking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

7) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

8) As per section 13 of the BPA Code of Practice: "You should allow the driver a reasonable 'consideration period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action." Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. 90 seconds, I would argue does not breach a fair 'consideration period', and therefore APCOA are in breach of the BPA Code of Practice.

I therefore request that POPLA uphold my appeal and cancel this PCN.

10
It is a contract by conduct. By entering the private land you are entering into a contract by parking there. The terms of the contract are the signs at the location.

Whether you choose to read the signs or not is not relevant. . . Unless those signs are not prominent, legible or contain unfair terms.

The NtK is PoFA compliant so the keeper can liable for the charge. The only way it could fail PoFA compliance is if the details of the charge are not adequately brought to the notice of the driver. Do you have any pictures of the signs? Can you get some with an overview of the car park?

You have not redacted the VRM or PCN number on your pictures which means anyone with that info can log into the DE website and cause you some pain if they were so inclined.

Have you tried Plan A yet? Contact the landowner/business who contracted DE and asked them to get the PCN cancelled? Plan B has failed, especially with that appeal. Plan C will be a waste of time but you can try an appeal to the IAS.

Plan D will be where you get the best chance to get this cancelled because the only truly independent arbiter is a judge who would decide whether you owe DE a debt.

11
Private parking tickets / Re: National Parking Control - NTK
« on: April 11, 2024, 03:29:31 pm »
The signage has to be not only prominent but the information on the signs has to be clear, unambiguous, legible and so on. If you can, go back and take your own photos of the signs as they would be visible from a car and where you parked. Preferably in the same lighting conditions as they were on the day of the alleged breach.

12
Private parking tickets / Re: National Parking Control - NTK
« on: April 08, 2024, 09:12:35 pm »
Of course there would. Signage, landowner contract.

13
Essentially, those are your options. Have you tried Plan A?

Have you any photos of the signs at the site? Are there any GSV images of the signage?

14
As BVRLA members, they are required to follow BVRLA a guidance:

https://www.bvrla.co.uk/static/uploaded/61b3298b-a918-499b-9ac8b8bea2b726a0.pdf

Of course there are CRA issues also. However, at this point, whether the PCN is or would have been PoFA complaint is moot. The hire company has paid the PCN and charged the hirer. This an obvious breach of their own terms and so the hirer should sue them for the money they’ve been charged.

The PPC doesn’t care about any of this. They’ve been paid. End of, for them. Let the hire company figure out how to get their money back.

15
OK, so the NtK is PoFA compliant which means the keeper can be held liable for the charge.

Are there any other evidential photos on the PPCs website? You can go as though to appeal and see what photos they have. Just showing photos only a few seconds apart is not evidence that the driver has breached any contract.

There must be a consideration period for the driver to read and understand the terms before being bound by those terms. Additionally, picking up, dropping off, loading and unloading are not parking.

Have a read of this persuasive appeal court decision (Jonson v Homeguard) that states so:

https://www.dropbox.com/s/9ezhkj6epu66l1r/JOPSON-V-HOMEGUARD-2906J-Approved.pdf?dl=0

Unfortunately, it would be a judge and not the incestuous IAS that accepts that fact.

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