Free Traffic Legal Advice

Hi!

Received a PCN in the mail a few days ago...

Britannia accused us of failing to make a valid payment, but we did pay but was late to exit by about 20 minutes. We were visiting Flamborough and made the mistake of going on a boat tour that left late by about 30 minutes.

The carpark was very busy and we had a toddler with us, so it took us time to find locate the car, strap her in, exit etc.

How can I appeal this? Thank you!

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Looking at GSV photos of the location from 9 months ago, the driver could not have entered a contract as there are no obvious signs with the contractual terms visible in the car park.

Hopefully, this will be won at POPLA.

One additional point that POPLA will need to be made aware of is that the photos on the NtK are not time stamped. In other words, they have been altered or cropped. That is a breach of the BPA CoP 21.5a.

We can't tell you what to do, it's not our money that is at stake, and therefore not our decision to make. What we can do is advise on your options.

If you do decide to fight this - b789 has already outlined some appeal points. The signage one, as you indicate, is potentially slightly weakened by the fact that the driver did make payment (you can't reasonably claim the driver was unaware of the existence of terms and conditions if they paid), but you can still make the point that it is not up to scratch, as per the code of practice.

Also, is the location actually in the port or dock area? If so, it may be land under statutory control which means that they cannot use PoFA to transfer liability from the driver to the keeper.

Have you checked this point? You should do some digging to see if byelaws apply where the vehicle was parked.

One additional point that POPLA will need to be made aware of is that the photos on the NtK are not time stamped. In other words, they have been altered or cropped. That is a breach of the BPA CoP 21.5a.

Unfortunately on the website they have more images which has the timestamp on it

The full POPLA decision:

POPLA Case Number
2413353469

Decision
Successful

Assessor Name
Gayle 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.

You have to appeal to Britannia first. You will only get an opportunity to appeal to POPLA if Britannia reject your appeal (which they will).

In your appeal to Britannia, irrespective of whether you paid or not, you should not be the liable person to pay. The liable person is the driver. Britannia have no idea who the driver is. You, as the keeper, are under no legal obligation to reveal the identity of the driver and Britannia are not allowed to simply presume or infer that because you are the keeper, you must also be the driver.

If the NtK had contained the all the required wording of PoFA and had been delivered within the required timescale, Britannia, because they don't know the identity of the driver, pass that liability to you, the keeper. However, they have failed to fully comply with the strict requirements of PoFA and so, cannot pass that liability on to you, the keeper.

Because they cannot rely on the provisions of PoFA to hold you, the keeper, liable, the burden of proof falls on Britannia to prove you were also the driver. The only way they can get that proof is if you tell them you were the driver. Remember, you are under no legal obligation to identify the driver, whether it was you or not.

So, appeal to Britannia 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 fully comply with the strict requirements of 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.

No need to expend a lot of wasted effort at this stage as they will reject the appeal, no matter what. No need to inform them about which specific element of PoFA they have failed. They will just say that their NtK was PoFA compliant. It is at POPLA stage that your best chance of having this cancelled.

The discount is not available by the time you get to POPLA, so the full charge of £100 will be in play. Regarding it going up to 'even more' - if you decide to go all the way, they will inevitably add on debt collector fees of around £70, however, these can generally be contested in court successfully, even if you lose the overall case.

If it did go all the way to court (which is a long way down the line, and depends on (a) you losing at POPLA, (b) them deciding to take it that far, and (c) following through and turning up to a hearing), a loss generally costs in the region of £220-240.

If you win at any of these stages, the amount owed is of course £0.