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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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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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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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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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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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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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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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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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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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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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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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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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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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If you’re determined to fight this, then the
bribediscount should be ignored. -
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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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