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#Post#: 33694--------------------------------------------------
PCM - Langley Square - PCN despite insufficient signage (signs
do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 18, 2024, 9:53 am
---------------------------------------------------------
This PCN relates to a long and convoluted series of events,
including an appeal to IAS dismissed by the ‘independent’
adjudicator. Liability has not been accepted, and the driver has
not been named. Moorside Legal has contacted the registered
keeper, offering payment of £170 in instalments) threatening
legal action.
Apologies for not getting advice earlier, but once the PePiPoo
website went down, I was not made aware of this forum till
recently.
There is also a lot of content due to the chain of events so
please let me know if I can help extract and highlight some
information.
Summarily,
- Signs were not visible and maintained and the driver thought
parking was permitted without any conditions at the site.
- IAS was provided several images showing that the terms of
parking were not visible anywhere throughout the journey taken
by the driver.
Evidence from PCM is not relevant and does not address the fact
that sufficient signage was present.
- PCM relied on historical images from several years ago to
state sufficient signage is present, and IAS seems to accept
this (timestamps embedded in the pictures submitted show the
photos of signage and the site are not current) – pictures
supplied by PCM were taken during the construction stage of the
building).
-
PCM indicates that the registered keeper knew the site's T&Cs
since they have a parking permit allocated to the apartment—
registered keeper (who occupied the apartment) was not offered a
parking place by the landlord and hence never used the parking
facilities at the site (the tenancy contract was uploaded as
proof); the tenant was told by the estate agents that no parking
exists for this apartment.
-
Due to the point above, PCM asserts on the balance of
probabilities that the driver was the registered keeper.
As indicated above, this is a false claim (keeper didn’t even
know the apartment had a parking bay as landlord stated ‘no
parking is offered’ in tenancy contract).
The Letter of representation (linked below) includes details and
images of the site and parking location.
If this matter ever gets in front of a District Judge, I believe
the PCN should be dismissed since PCM has failed in its duty to
maintain and advertise traffic conditions as required.
I would appreciate any advice, please. Is there anything else I
should provide to Moorside Legal at this stage?
---------------------------------------------------------
PCN reason
Reason for PCN issue: Parked in restricted area
---------------------------------------------------------
RELEVANT DOCUMENTS (REDACTED TO REMOVE PII)
Latest letter from Moorside Legal:
HTML https://drive.google.com/file/d/1su8KuvYfw37yP8NI-VXPFhxl9mxhiWHX/view?usp=sharing
HTML https://drive.google.com/file/d/1su8KuvYfw37yP8NI-VXPFhxl9mxhiWHX/view?usp=sharing
Initial appeal from registered keeper to PCM:
HTML https://drive.google.com/file/d/1gHJLGOoabA1WHfhm_KXTh6XOqVRO0cFm/view?usp=sharing
HTML https://drive.google.com/file/d/1gHJLGOoabA1WHfhm_KXTh6XOqVRO0cFm/view?usp=sharing
Prima Farce case from PCM to IAS:
HTML https://drive.google.com/file/d/104gEp9rH8jswSptTrqAlg8PXiJqMQDmD/view?usp=sharing
HTML https://drive.google.com/file/d/104gEp9rH8jswSptTrqAlg8PXiJqMQDmD/view?usp=sharing
Letter of Representation to IAS (sent by registered keeper):
HTML https://drive.google.com/file/d/1d6Va3RaxIqtDIWM6cT1utfu_r2OMnl9I/view?usp=sharing
HTML https://drive.google.com/file/d/1d6Va3RaxIqtDIWM6cT1utfu_r2OMnl9I/view?usp=sharing
Second Letter of Representation sent to IAS (sent by registered
keeper):
HTML https://drive.google.com/file/d/1YT0K2UTiL5UMyF5xjP3FggAmi7Wr3a-T/view?usp=sharing
HTML https://drive.google.com/file/d/1YT0K2UTiL5UMyF5xjP3FggAmi7Wr3a-T/view?usp=sharing
---------------------------------------------------------
TIMELINE OF EVENTS RELATING TO PCN
- Alleged date of parking offence – 11 Nov 2023
- Appeal made to PCM (by registered keeper) – Within time 22 Nov
2023
- Rejection of appeal from PCM – 05 Dec 2023 (letter dated 27
Nov 2023)
- IAS appeal submitted – 15 Dec 2023
- IAS decision from the Independent Adjudicator – Dismissed on
11 Jan 2024
- PCM data subject address rectification with PCM – Notified new
address – 05 Aug 2024
- Letter from Moorside Legal (on behalf of PCM) – Offering
payment of £170 in 4 instalments – 13 Aug 2024
---------------------------------------------------------
OUTCOME OF APPEAL FROM IAS
Appeal Dismissed: The parking charge has been upheld.
You may view the adjudicator's comments in the section below.
Adjudicator's Decision: (emphasis added by me within the text
below)
The adjudicator made their decision on 10/01/2024 09:10:07.
It is important that the Appellant understands that the
adjudicator is not in a position to give his legal advice. The
adjudicator's role is to look at whether the parking charge has
a basis in law and was properly issued in the circumstances of
each particular case. The adjudicator's decision is not legally
binding on the Appellant (it is intended to be a guide) and they
are free to obtain independent legal advice if they so wish.
However, the adjudicator
is legally qualified (a barrister or solicitor) and decides the
appeal according to their understanding of the law and legal
principles.
The terms of this appeal are that I am only allowed to consider
the charge being appealed and not the circumstances of other
drivers or other parking events. The guidance to this appeal
also makes it clear that I am bound by the law of contract and
can only consider legal challenges not mistakes or extenuating
circumstances. I am satisfied that the Operator's signage, which
was on display throughout the site and seemingly visible from
the position of the vehicle, makes it sufficiently clear that
the terms and conditions are in force at all times and that a
PCN will be issued to drivers who fail to comply with the terms
and conditions, regardless of a driver's
reasons for being on site or any mitigating factors. While
noting their comments, it is clear from the evidence provided to
this appeal that the Appellant did indeed enter and use the site
otherwise than in accordance with
the displayed terms by allowing their vehicle to be parked in a
restricted area as alleged by the Operator, having been allowed
an adequate consideration period prior to the charge being
issued. It is the driver's (rather than a
third party's) responsibility to ensure that the terms and
conditions of parking are properly complied with. I am satisfied
on the evidence provided that the Operator has the authority to
issue and enforce PCNs at this site. I
am further satisfied as to the location of the contravention,
that the correct vehicle has been identified parked at the time
suggested in the images provided and that the correct Appellant
is pursued. I note the Appellant's comments with regards to
service however the Operator's code of conduct states that
'Where notification of a parking charge is not affixed to the
vehicle or given to the driver at the time of the parking event
then you may provide postal
notification of the charge to the registered keeper.' On the
evidence provided I am satisfied that the charge has been served
correctly using the postal system.
I am satisfied that the Operator has proven their prima facie
case. Whilst having some sympathy with the Appellant's
circumstances, once liability has been established, only the
Operator has the discretion to vary or cancel the
parking charge based on mitigating circumstances. Accordingly
this appeal is dismissed.
Motorist Details:
You reported that you were the registered keeper but is not
prepared to state who was driving at the time the parking charge
was issued.
You reported that you are being held liable for the parking
charge.
My Appeal:
You completed the appeal on 15/12/2023 11:39:44.
Please find attached our detailed Letter of Representation to
support the appeal.
Operator's Prima Facie Case:
The operator made their Prima Facie Case on 15/12/2023 13:12:09.
The operator reported that...
The appellant was the driver.
The appellant was the keeper.
ANPR/CCTV was used.
The Notice to Keeper was sent on 15/11/2023.
A response was received from the Notice to Keeper.
The ticket was issued on 11/11/2023.
The Notice to Keeper (ANPR) was sent in accordance with PoFA.
The charge is based in Contract.
Appellant's Response:
The appellant made their response on 15/12/2023 22:21:07.
Please find attached our further response as a 'Second Letter of
Representation' along with a supporting Exhibit with the
filename 'REDACTED - Assured Shorthold Tenancies - Flat REDACTED
The Duke.pdf'.
The operator made the following comments...
Please see attached.
---------------------------------------------------------
DOCUMENTS SENT BY PCM TO IAS
Sitemap 1 – Aerial view map showing which signs are located
where – IAS ignored the fact that the signs are not visible and
maintained (vandalised)
HTML https://drive.google.com/file/d/1Y2b-szP1a2lRscoGXgw2ODTwUizQJjQz/view?usp=sharing
HTML https://drive.google.com/file/d/1Y2b-szP1a2lRscoGXgw2ODTwUizQJjQz/view?usp=sharing
Various PDF files showing the design template of several sign
boards (none of which were visible and some irrelevant e.g.
there are no bays with signs stating Red Resident Permit
anywhere) :
HTML https://drive.google.com/drive/folders/1RYGJsW5IvV4t7Ye150dVrdsdpTzQA1re?usp=sharing
HTML https://drive.google.com/drive/folders/1RYGJsW5IvV4t7Ye150dVrdsdpTzQA1re?usp=sharing
[center]Standard Permit Marked bay (PAR0091-289) – Large version
of the design of a sign board the (physical site
does not show a sign with all these details visible)
1855 - ENTRANCE SIGN 2021 (PAR0091-1855) – As per my evidence to
IAS this sign cannot be seen when entering the road or parking
location
NP - AREA TC (PAR0091-375)
2464 - Loading Bay - 30min max - NO PERMIT (PAR0091-2464)
NO Parking AREA (PAR0091-302)
Standard Permit MB GDPR Aug 2020 (PAR0091-1313)
BP SIGN - Numbered - Red Resident Permit (PAR0091-1108)[/center]
#Post#: 33698--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 18, 2024, 10:02 am
---------------------------------------------------------
HTML https://i.imgur.com/zKFSx0E.jpeg
#Post#: 33724--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: b789
Date: August 18, 2024, 12:43 pm
---------------------------------------------------------
Good job that the driver has not been identified. The NtK does
not fully comply with ALL the requirements of PoFA to be able to
hold the keeper liable for the charge.
--- Quote ---
> PoFA 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.
>
> 9(2) The notice must—
>
> 9(2)(e) 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—
>
> 9(2)(e)(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;
--- End Quote ---
Show me where in that NtK there is any mention of passing the
notice to the keeper. There isn't as far as I can see in the low
quality image of the NtK.
Partial or even substantial compliance is not sufficient.
#Post#: 33731--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 18, 2024, 2:20 pm
---------------------------------------------------------
PCM argue that this is an invitation to volunteer the
information.
Unfortunately, would the below text not meet the requirements of
PoFA 2012 9(2)(e)?
--- Quote ---
>
> This notice is being given to you in line with Schedule 4 of
the Protection of Freedoms Act 2012 ('the Act'). In relation to
a parking contravention that occurred on 11/11/2023. Records
from the DVLA show that you were the registered keeper at the
time of the contravention and as we do not know the name and
current address for service of the driver, this notice is served
to you
> [..]
>
--- End Quote ---
--- Quote ---
>
> [..]
> As the registered keeper of the vehicle, you are invited to do
one of the following
> [..]
> ii. if you were not the driver at the time of the
contravention, pleae provide us with the full name and
serviceable address of the driver to which this notice can be
served.
> [..]
>
--- End Quote ---
#Post#: 33738--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: b789
Date: August 18, 2024, 3:14 pm
---------------------------------------------------------
It is missing this little bit on the end of that sentence you
have shown: "and to pass the notice on to the driver". It is
crucial that ALL the requirement of PoFA are FULLY complied
with. As I have mentioned already, partial or even substantial
compliance is not sufficient.
#Post#: 33740--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 18, 2024, 3:23 pm
---------------------------------------------------------
--- Quote from: b789 link ---
>
> It is missing this little bit on the end of that sentence you
have shown: "and to pass the notice on to the driver". It is
crucial that ALL the requirement of PoFA are FULLY complied
with. As I have mentioned already, partial or even substantial
compliance is not sufficient.
>
--- End Quote ---
Thanks a lot, I missed out the 'pass the notice' bit of the
requirement.
Should I just write to the legal firm asking that they cease
enforcement due to non-compliance with PoFA?
Do we need to highlight the specific manner in which they have
not complied with PoFA? I guess not but thought of confirming.
I will look for a template on here and share back a draft for
review if you believe this is the only thing that needs
#Post#: 33760--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: b789
Date: August 18, 2024, 6:55 pm
---------------------------------------------------------
This is way beyond any appeal stage and there is no point
corresponding with the claimants solicitor unless it is to
respond to an actual Letter of Claim (LoC).
The PoFA flaw is only one arrow in the quiver. It simply means
that they cannot sue the keeper for the charge. Not that that
will stop them trying.
What about the lease. What does it say about parking? What it
doesn’t say about parking is equally important. Any mention of
requiring permits or being liable to a third party to pay
invoices for breaching any specified terms?
Is the PPC relying on a contract flowing from the landowner
through the managing agent? If so, is there anything in the
lease that gives that right? Has the managing agent changed or
altered anything in the head lease and if so, did they comply
fully with the Landlord & Tenant Act
HTML https://www.legislation.gov.uk/ukpga/1987/31/section/37
Section 37 5(a) or 5(b) applies
#Post#: 33762--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 18, 2024, 7:10 pm
---------------------------------------------------------
--- Quote from: b789 link ---
>
> What about the lease. What does it say about parking? What it
doesn’t say about parking is equally important. Any mention of
requiring permits or being liable to a third party to pay
invoices for breaching any specified terms?
>
--- End Quote ---
The tenancy contract the registered keeper had have specifically
prohibits them from applying for permits.
The registered keeper does not have a copy of the leasehold
agreement as I was merely a tenant.
Should the registered keeper obtain the authority to act from
PCM through correspondence?
If they refuse to share this then they can show un reasonable
litigation conduct when/if this proceeds to a claim?
--- Quote from: b789 link ---
>
> Is the PPC relying on a contract flowing from the landowner
through the managing agent? If so, is there anything in the
lease that gives that right? Has the managing agent changed or
altered anything in the head lease and if so, did they comply
fully with the Landlord & Tenant Act
HTML https://www.legislation.gov.uk/ukpga/1987/31/section/37
>
> Section 37 5(a) or 5(b) applies
>
--- End Quote ---
What do you suggest is the best way to obtain this? FOIA?
#Post#: 33768--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: H C Andersen
Date: August 19, 2024, 3:29 am
---------------------------------------------------------
OP, are you the registered keeper?
As regards what has been posited as a silver bullet in terms of
PoFA, I suggest that you do not hitch your wagon to this point.
Let's see it in its correct context:
4));
(e)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;
Elsewhere in PoFA you will see similar references, for example
when a car is hired and the creditor issues a Notice to Hirer
this must include a copy of the original Notice to Keeper to the
hire company.
What does this mean?
The law doesn't want a hirer or, in your case, the driver to
receive a demand from the creditor without any legal context. In
a hirer's case they get a copy of original NTK sent by the
creditor, in yours the driver would also get the NTK but this
time sent by the keeper....'to pass to the driver'.
This is the provision's sole purpose.
But you did NOT provide the driver's details, so the point is
irrelevant as regards the option which you chose i.e. to make
reps as keeper.
Does the NTK omit these words, yes?
Would this save you in front of a judge who interprets these
provisions in a purposive manner? IMO, no.
But this is why you get a range of views here, we do not all
agree.
#Post#: 33786--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 19, 2024, 6:05 am
---------------------------------------------------------
I think we cannot rely on PoFA non-compliance due to my comments
below Requirements for Notice to Keeper – Second condition as
per p(6)
Markuped up comments against the legislative requirements is
provided below.
Conditions that must be met for purposes of paragraph 4 –
Protection of Freedoms Act 2012 (2012 c9)
FIRST CONDITION
--- Quote ---
>
> Conditions that must be met for purposes of paragraph 4
> 5
> (1) The first condition is that the creditor—
> (a) has the right to enforce against the driver of the vehicle
the requirement to pay the unpaid parking charges; but
> (b) is unable to take steps to enforce that requirement
against the driver because the creditor does not know both the
name of the driver and a current address for service for the
driver.
>
--- End Quote ---
Okay the driver is unknown at this point.
--- Quote ---
>
> (2) Sub-paragraph (1)(b) ceases to apply if (at any time after
the end of the period of 28 days beginning with the day on which
the notice to keeper is given) the creditor begins proceedings
to recover the unpaid parking charges from the keeper.
>
--- End Quote ---
The creditor can enforce charges against the keeper; if driver
not named after end of 28 days.
SECOND CONDITION
--- Quote ---
>
> 6
> (1) The second condition is that the creditor (or a person
acting for or on behalf of the creditor)—
> (a) has given a notice to driver in accordance with paragraph
7, followed by a notice to keeper in accordance with paragraph
8; or
>
--- End Quote ---
Does not apply in this scenario as we are NtK stage and driver
is unknown (so a notice to driver cannot be issued by the
creditor).
--- Quote ---
>
> (b) has given a notice to keeper in accordance with paragraph
9.
>
--- End Quote ---
Okay so a PoFA compliant notice as per p9 is required, let us
look at that next.
NOTICED TO KEEPER REQUIREMENTS – REQUIRED BY SECOND CONDITION –
p6(1)(b)
--- Quote ---
>
> 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.
> (2) The notice must—
> (a) specify the vehicle, the relevant land on which it was
parked and the period of parking to which the notice relates;
>
--- End Quote ---
Vehicle specified – OK
Period of notice – OK
Relevant land it was parked on – NOT OK – Creditor uses the term
LANGLEY SQUARE, this seems to be a marketing name for the
development no one recognises and there are no sign boards that
state this name.
(Judge – might not agree as the appeal to IAS highlights the
relevant land using aerial maps)
--- Quote ---
>
> (b) inform the keeper that the driver is required to pay
parking charges in respect of the specified period of parking
and that the parking charges have not been paid in full;
>
--- End Quote ---
OK – PCN states amount paid £0.
--- Quote ---
>
> (c) describe the parking charges due from the driver as at the
end of that period, the circumstances in which the requirement
to pay them arose (including the means by which the requirement
was brought to the attention of drivers) and the other facts
that made them payable;
>
--- End Quote ---
OK – I guess given the text in 2nd and 4th paragraph of PCN.
Please share thoughts.
--- Quote ---
>
> (d) specify the total amount of those parking charges that are
unpaid, as at a time which is
> (i) specified in the notice; and
> (ii) no later than the end of the day before the day on which
the notice is either sent by post or, as the case may be, handed
to or left at a current address for service for the keeper (see
sub-paragraph (4));
>
--- End Quote ---
OK.
--- Quote ---
>
> (e) 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—
>
--- End Quote ---
First paragraph of PCN seems to cover this (as per my previous
post).
(i) to pay the unpaid parking charges; or
[/quote]
OK
--- Quote ---
>
> (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;
>
--- End Quote ---
PARTIALLY COMPLIANT – the underlined text is not covered. Hence,
the driver does not have the PCN if keeper did not know legally
they should have given it to them.
But as per the previous post, I think a Judge might decide to
enforce the keeper's liability because the driver would have
received the notice in either case if they had been identified
by the keeper (the creditor would have re-issued the PCN).
This could be risky as a ‘sole defence’.
--- Quote ---
>
> (f) 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;
>
--- End Quote ---
OK – cant see any non-compliance here (yet).
--- Quote ---
>
> (g) inform the keeper of any discount offered for prompt
payment and the arrangements for the resolution of disputes or
complaints that are available;
>
--- End Quote ---
OK
--- Quote ---
>
> (h) identify the creditor and specify how and to whom payment
or notification to the creditor may be made;
>
--- End Quote ---
OK – reverse side of PCN has this.
--- Quote ---
>
> (i) specify the date on which the notice is sent (where it is
sent by post) or given (in any other case).
>
--- End Quote ---
TO VALIDATE – can the date of notice be ‘one day after’ the
‘date of posting’? Forgot what the standard is.
--- Quote ---
>
> (3) The notice must relate only to a single period of parking
specified under sub-paragraph (2)(a) (but this does not prevent
the giving of separate notices which each specify different
parts of a single period of parking).
>
--- End Quote ---
OK.
--- Quote ---
>
> (4) The notice must be given by—
> (a) handing it to the keeper, or leaving it at a current
address for service for the keeper, within the relevant period;
or
> (b) sending it by post to a current address for service for
the keeper so that it is delivered to that address within the
relevant period.
> (5) The relevant period for the purposes of sub-paragraph (4)
is the period of 14 days beginning with the day after that on
which the specified period of parking ended.
> (6) A notice sent by post is to be presumed, unless the
contrary is proved, to have been delivered (and so “given” for
the purposes of sub-paragraph (4)) on the second working day
after the day on which it is posted; and for this purpose
“working day” means any day other than a Saturday, Sunday or a
public holiday in England and Wales.
> (7) When the notice is given it must be accompanied by any
evidence prescribed under paragraph 10.
> (8) In sub-paragraph (2)(g) the reference to arrangements for
the resolution of disputes or complaints includes—
> (a) any procedures offered by the creditor for dealing
informally with representations by the keeper about the notice
or any matter contained in it; and
>
> (b) any arrangements under which disputes or complaints
(however described) may be referred by the keeper to independent
adjudication or arbitration.
>
--- End Quote ---
All seems OK.
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