Author Topic: PCN for parking outside of the parking bay  (Read 317 times)

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Sunshineoncov

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PCN for parking outside of the parking bay
« on: February 13, 2024, 03:48:33 pm »
The driver parked over the line as the vehicle is big and there was a bay out of use due to a temp barrier next to it.  The registered keeper received a charge in the post.
Looking for advice on how to respond please.

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b789

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Re: PCN for parking outside of the parking bay
« Reply #1 on: February 13, 2024, 04:47:25 pm »
Have you initiated Plan A? Plan A is to make complaint to the landowner or whichever managing agent contracted Premier Park and ask them to get them to cancel it.

At this point, whilst the NtK attempts to hold the keeper liable by using some wording from PoFA 2012, it has technical flaws and can be argued later, that it is not fully PoFA compliant with the strict requirements of the Act. This would mean that only the driver can be liable and they have no idea who the driver is.

Do not identify the driver. You are under no legal obligation to do so. You respond to anything solely as the keeper.

Plan B will be an appeal to PP where you can argue several points and any mitigation you want to rely on. Should Plan B fail, you will then receive a POPLA code for your Plan C appeal. A POPLA appeal will not consider mitigation. It will only consider BPA CoP and legal matters.

If Plan C fails, not to worry as any POPLA decision is not binding on the appellant. You would then enter a limbo period where you would receive reminders and debt collector letters which can be ignored. Up to 6 years after the date of the parking event, PP can initiate a county court claim which is when Plan D kicks in. PP may or may never progress to this stage. However, if they they ever do, it would then be up to a judge to decide whether you owe them any debt.

You must understand that what you have received is a speculative invoice from an unregulated private parking company for an alleged breach of contract. The majority of victims of these 30,000+ issued daily invoices just pay up. Many try Plan B and Plan C but then capitulate due to their incorrectly held understanding of civil law. Threats of CCJs and bailiffs are often enough for the PPCs to harvest the low-hanging fruit of the gullible tree.

Those that do feel aggrieved enough and believe that their PCN was issued unfairly that go on to fight them with the advice they receive here, are much more likely to get them overturned at one of the Plan stages.
« Last Edit: February 13, 2024, 04:50:26 pm by b789 »

H C Andersen

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Re: PCN for parking outside of the parking bay
« Reply #2 on: February 13, 2024, 05:25:48 pm »
You should challenge first then try Plan B.

Why?

Because the sooner you submit a challenge the sooner the charge is put on hold at the prevailing rate i.e. £60 up to issue date + 14.

Let them take their sweet time over answering because while they're considering - at no cost to you - you try Plan B. Whereas if you try Plan B and go past issue date +14 then you're in for £100.

And when is 'issue date' you've blanked it out!

@b789, Could I ask that these flaws referred to be posted for peer review pl:

At this point, whilst the NtK attempts to hold the keeper liable by using some wording from PoFA 2012, it has technical flaws and can be argued later, that it is not fully PoFA compliant with the strict requirements of the Act. This would mean that only the driver can be liable and they have no idea who the driver is.

I can't find any substantive defects which would prevent the creditor from relying upon keeper liability in ADR or court, but maybe I've missed a key point.

OP, let's look at the photo objectively pl.

There is clear encroachment into the bay on the right.
The van hasn't even taken up the full allotted space to its left.

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b789

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Re: PCN for parking outside of the parking bay
« Reply #3 on: February 13, 2024, 06:07:09 pm »
After discussion with a very long serving district judge about the issue of "technical flaws" in a NtK regarding PoFA compliance, it was agreed that any flaws, including the one I will describe below, would be considered and decided on whether it was factually correct if raised in a defence.

In the case of the NtK in this case, the wording "You are advised that if, after the period of 28 days..." does not strictly comply with the wording required by the Act. Paragraph 9(2) states that the NtK MUST and 9(2)(f) WARN the keeper...

When something is required by law, it means there are consequences for failing to do it. If the operator is legally obligated by the Act to warn someone about potential risks, and the operator doesn't, there could be legal repercussions such as, in this case, a lawsuit. On the other hand, when something is advised, it is only a suggestion or recommendation without the same level of legal backing.

So in a legal context, there is a significant difference between advice and a warning. A legal requirement to "warn" someone carries a much stronger obligation and consequence compared to when it is merely "advised."

Additionally, in this NtK, there is a failure to adhere to PoFA 9(2)(e) which MUST state that if 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...

There is no invitation as per 9(2)(e)(i).

There are plenty of PPCs that do strictly adhere to the wording requirements of the Act. It is not beyond the remit of this operator to adhere strictly to the requirements of the Act when they could easily have chosen to.
« Last Edit: February 13, 2024, 06:12:16 pm by b789 »

DWMB2

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Re: PCN for parking outside of the parking bay
« Reply #4 on: February 13, 2024, 06:18:02 pm »
It would be a far braver sole than I who went to court on such an argument alone.

andy_foster

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Re: PCN for parking outside of the parking bay
« Reply #5 on: February 13, 2024, 07:05:30 pm »
In the English language, "warned that", "said that", etc. are indicative of indirect quotes. I would be wary of relying on it being interpreted as prescribed wording unless there is case law in which the law has defined the words accordingly.

I am responsible for the accuracy of the information I post, not your ability to comprehend it.
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b789

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Re: PCN for parking outside of the parking bay
« Reply #6 on: February 13, 2024, 07:14:55 pm »
Nowhere am I suggesting that a defence should be based solely on those one or two points. They are arguments that can be used to towards the bigger picture that the operator is abusing the process by not strictly adhering to the requirements of statute.

We already know that the template defence used from the MSE forums covers many more points of law. The argument I have posed about the validity of the NtK to hold the keeper liable for the alleged debt points out some facts that the judge would have to consider on top of all the other arguments.

PoFA has been around for 12 years and many operators, including this one, still can't get the wording right. There are too many instances of operators using wording that is not strictly as prescribed in PoFA but mention PoFA but relying on it to hold the keeper liable and there are also plenty of operators who use wording exactly as prescribed but don't actually mention PoFA.

Is the suggestion that the operators can have it both ways? Can an operator rely on PoFA if they don't include the precise wording, only an approximation of it?

In the English language, "warned that", "said that", etc. are indicative of indirect quotes. I would be wary of relying on it being interpreted as prescribed wording unless there is case law in which the law has defined the words accordingly.

Without having access to a database of case law, I will not know unless someone else can provide it. However, there is always the possibility that at some point, there will be an appeal based on the points.

H C Andersen

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Re: PCN for parking outside of the parking bay
« Reply #7 on: February 13, 2024, 07:33:56 pm »
@andy_foster, spot on IMO.

The wording of the para. is:

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.

'Requirements are met', not state word for word.

We then get:

specify; inform; describe; specify; state; warn; inform; identify; specify.

IMO, any attempt to apply a requirement that every word must be included in a NTK is very, very wide of the mark and a registered keeper would be foolish to attempt to defend a claim on this basis alone.

Substantive and material omissions would be required IMO.

 

b789

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Re: PCN for parking outside of the parking bay
« Reply #8 on: February 13, 2024, 07:49:48 pm »
Well, we can nitpick over interpretation and meaning until the cows come home. Nowhere have I suggested that argument about precision in language versus the the requirements of the Act would be a valid, single point of defence.

Why wouldn’t it be worthwhile raising the issue as one of multiple defence points? By raising it, the judge can then consider whether it is a valid point of fact… or not.

DWMB2

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Re: PCN for parking outside of the parking bay
« Reply #9 on: February 13, 2024, 09:06:46 pm »
I'm wary of us having too much more debate around this in a live case thread that currently hasn't even reached the "initial appeal to the operator" stage.

For now, the OP might be wise to focus on contacting the landowner, and drafting up an appeal here for critique.

Sunshineoncov

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Re: PCN for parking outside of the parking bay
« Reply #10 on: February 13, 2024, 09:14:05 pm »
The issue date is February 9th, the day after the photos were taken.

I have contested the charge with Premier Park as advised. I need to find out who owner of the land is. I think it’s  Tesco. The driver visited Nando’s on the day and can prove this with the online receipt.

DWMB2

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Sunshineoncov

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Re: PCN for parking outside of the parking bay
« Reply #12 on: February 14, 2024, 08:34:53 am »
I said what is recommended on this site, that I’m not at liberty to disclose who the driver is.

DWMB2

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Re: PCN for parking outside of the parking bay
« Reply #13 on: February 14, 2024, 08:37:42 am »
What exactly did you send as your appeal? Just "I am not at liberty to disclose who was driving"?

This site recommends not to reveal who was driving unless we advise otherwise, it does not recommend saying that and nothing else in an appeal.

Sunshineoncov

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Re: PCN for parking outside of the parking bay
« Reply #14 on: February 14, 2024, 07:08:41 pm »
My response to them was

Dear Sirs,

I have received your Parking Charge Notice (Ref: ________) for vehicle registration mark ____ ___, in which you allege that the driver is liable to pay a parking charge. I note from your correspondence that you are not seeking to hold me liable as the registered keeper, under Schedule 4 of the Protection of Freedoms Act 2012 ("The Act").

There is no obligation for me to name the driver and I will not be doing so. I am therefore unable to help you further with this matter, and look forward to your confirmation that the charge has been cancelled. If you choose to decline this appeal, you must issue a POPLA code.

Yours,