DIR Return Create A Forum - Home
---------------------------------------------------------
FreeTrafficLegalAdvice
HTML https://ftla.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Private parking tickets
*****************************************************
#Post#: 4699--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: DWMB2
Date: September 9, 2023, 11:37 am
---------------------------------------------------------
The Code of Practice is binding insofar as they agree to comply
with it, and if they do not you could complain to the BPA. The
Code of Practice is just that, not the law (although the Supreme
Court did describe it as "in practice binding" in the Beavis
case).
My point was more that them not complying with the code would be
poor practice (and something you could point out), but wouldn't
immediately invalidate the charge or prevent them taking further
action.
#Post#: 5417--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: Chaseman
Date: September 18, 2023, 3:53 pm
---------------------------------------------------------
Well, no great surprise, Parking Eye have rejected my appeal.
Not that they considered the fundamental point raised i.e.
imprecise location nor the secondary point inasmuch as they sent
a second PCN with a different date but referring to the same
"offence". No they came out with this cracker:
--- Quote ---
> We have reviewed the details outlined in your appeal, but we
are not in receipt of
> sufficient evidence to confirm that the terms and conditions
were not breached. These
> terms are clearly displayed on the signage located throughout
the above car park.
--- End Quote ---
Irrelevant that I had never questioned the terms and conditions
nor whether they were properly displayed nor whether I had
breached them or not. I simply pointed to the fact that they had
not given me the address for St Michael's Court so they "had not
specified the relevant land" as required by the legislation.
That point has been completely ignored. They have also
completely ignored the incoherent para on the back of the second
purported PCN in which they alleged that I as RK had identified
myself as the driver (which I hadn't) and if I wasn't the driver
(with my driver hat on) could I please identify who was the
driver (which I had already said I was not going to do).
So you will see from the letter attached that they have given me
all the blurb for appealing to POPLA but NOT the 10 digit number
they need to send with their letter of rejection. I assume this
is deliberate to try and snooker an appeal to POPLA. I have
never appealed to POPLA before. I assume it is fairly
straightforward - do they do telephone hearings or do you just
get a written verdict?
[attachment deleted by admin]
#Post#: 5421--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: DWMB2
Date: September 18, 2023, 4:16 pm
---------------------------------------------------------
--- Quote from: Chaseman link ---
>
> they have given me all the blurb for appealing to POPLA but
NOT the 10 digit number they need to send with their letter of
rejection.
>
--- End Quote ---
They have, it's immediately above 'Dear Sir/Madam'.
And yes, they seldom address the specificities of appeals, far
cheaper to send out a boilerplate.
The process of appealing to POPLA is fairly straightforward, and
can be done entirely online via their website. There are no
telephone or in-person hearings, it's all done 'on the papers'.
The general advice with POPLA appeals is to be more thorough
than your initial appeal to the parking company, as the POPLA
assessor does not have the benefit of any prior knowledge of the
case, and the more thorough you are, the less room for
misinterpretation there is.
It may help to look at other POPLA appeals to get a feel for how
they are constructed - the MSE Forum has a decent introduction
guide here
(
HTML https://forums.moneysavingexpert.com/discussion/comment/64350600/#Comment_64350600
HTML https://forums.moneysavingexpert.com/discussion/comment/64350600/#Comment_64350600)<br
/>- and a search of that forum and the PePiPoo should yield some
good recent examples. Ideally, find a couple that have argued
similar points to you (I provided a link to a similar case early
on in the thread).
#Post#: 5484--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: Chaseman
Date: September 19, 2023, 12:17 pm
---------------------------------------------------------
Here is my draft appeal to POPLA. Any comments gratefully
received.
--- Quote ---
> I received a Parking Charge Notice (“PCN”) to Keeper ref
226902/075498 dated 1 August 2023 for vehicle VRM LF64SFY of
which I am the registered keeper, alleging a parking “offence”
on 27 July. I was not the driver of the car on the date in
question.
>
> This Notice failed to comply with the requirements of Schedule
4 of The Protection of Freedoms Act 2012 namely, but not limited
to, failing to specify the location of the relevant land as
required by section 9 (2)(a) of the Act. It is not possible to
determine the location of the alleged breach of their conditions
because the PCN stated the address as just "St Michaels Court".
A quick check on Google Maps finds at least nine St Michaels
Courts in England including Aylsham, Amersham, two addresses in
London, South Shields, Gloucester, Derby, Litchfield and
Weybridge. Parking Eye therefore cannot transfer liability for
the alleged charge from the driver at the time to me, the
keeper. There is no legal requirement to name the driver at the
time and I have not done so.
>
> Even if the address is more specifically noted in another
medium or at a later date, the PCN needs to specify the location
of the relevant land and it does not. I appealed to Parking Eye
on these grounds on 14 August.
>
> On 30 August I received a response which neither accepted nor
rejected my appeal.
>
> The PCN set out four options as follows:
>
> To pay the driver's alleged parking charge;
> To name the driver;
> To appeal;
> To pay and appeal.
>
> I elected to appeal which then gave Parking Eye 35 days to
serve their substantive response. The 30 August response asked
again for the driver's details and implied that if I did not
comply my appeal "may well be rejected". This appeared to tie
their consideration of the merits of my appeal to my willingness
to supply the driver's details, which I am under no legal
obligation to provide. They were effectively fettering their
discretion.
>
> Such a response is not permitted under the BPA Code of
Practice and ranks alongside the fourth 'option' of paying the
parking charge and appealing which is similarly proscribed under
the code.
>
> On 1 September I wrote to Parking Eye bringing this
extra-procedural response to their attention.
>
> They responded by post in a letter received by me on 4
September by issuing a second PCN, bearing the same number as
the original but dated 30 August in respect of the same alleged
parking charge, asking for a penalty to be paid within 28 days
of the [new] issue date.
>
> On the back of the “new” PCN is a paragraph that says as
follows:
>
> “We originally wrote to the registered keeper [that is me] of
the vehicle whose details were held by the DVLA at the time of
the parking event and they [me again] have informed us that you
[me again] were responsible for this vehicle at the time of the
parking event [which I did not]…..if you were not the driver at
the time [I had already told them I was not] you should tell us
the name and current postal address of the driver [I am under no
legal obligation to do this]”.
>
> They had thus sent me two separate PCNs on different dates of
issue for the same “offence” and a letter which is misinformed
and thoroughly confusing.
>
> Finally on 16 September Parking Eye sent a letter rejecting my
appeal. The reason given for the rejection was as follows:
>
> “We have reviewed the details outlined in your appeal, but we
are not in receipt of sufficient evidence to confirm that the
terms and conditions were not breached. These terms are clearly
displayed on the signage located throughout the above car park.”
>
> This signally fails to address the fundamental point of my
appeal which is that the PCN does not identify the location of
the car park where the “offence” is alleged to have taken place.
Simply telling me it was “St Michael’s Court” does not give me
sufficient detail to allow me to locate the car park in question
and hence any discussion of the terms and conditions that were
or were not displayed and were or were not breached is simply
irrelevant. I made no reference in my appeal to such terms and
conditions. Thus I contend that there is a defect in the
original PCN which renders it non-compliant with section 9(2)(a)
of POFA 2012 and as such liability cannot be transferred to me
as the registered keeper. No subsequent further specification of
the address (of which there has been none) can remedy this
defect.
>
> As a secondary point of appeal I note Parking Eye’s issue of a
second PCN dated 30 August but alleging the same offence date of
27 July, which bore an incoherent paragraph on the back (as set
out above) claiming I had done or said things as the registered
keeper that patently I had not. Taken together with the implied
threat that if I did not identify the driver my appeal “may well
be rejected” this is an example of outrageous bad faith that
should call for the PCN to be dismissed immediately.
--- End Quote ---
#Post#: 5507--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: DWMB2
Date: September 19, 2023, 3:35 pm
---------------------------------------------------------
I think this draft would benefit from more structure, and a
change of focus. Your main point of argument is (or should be),
the PoFA fail, but currently around 75% of your draft focuses on
a timeline of who sent what when, and the issue of the 2nd PCN,
which potentially acts more as a distraction than a help in its
current form.
By all means mention the debacle of them sending 2 PCNs, and the
request for driver's details, as examples of their poor
practice, but in my opinion your appeal would be far stronger if
it focuses on the key issue of PoFA compliance. After all, this
is a reason why no money is owed by you as the keeper. Them
sending two PCNs on the face of it, isn't.
Have you looked at the examples on the MSE post I linked to?
They often include a clear structure that guides the assessor
through the points. I'd recommend setting it out your reasons in
a similar structure, such as:
- The operator has not shown that the individual who it is
pursuing is in fact the driver who may have been liable for the
charge- I'd be minded to set this point out clearly before your
point about PoFA. After all, their lack of compliance with PoFA
is only relevant if it has not been established who was driving,
so make this point clearly, and leave the assessor in no doubt
that you are appealing as keeper, and that they therefore need
to consider your liability as the keeper.
- Failure to comply with PoFA - Make this as thorough as you
can. Explain what they need to do to comply, and how what they
have done is insufficient. To do this, make it clear why simply
saying "St Michael's Court" does not specify where the incident
took place, ideally providing examples of the fact that it could
refer to multiple locations (perhaps include a list of car parks
you identified that bear such a name, and how their vague
location therefore does not specify where the incident
occurred).
- If you wish, you can then mention the issues around them
issuing a second PCN etc., as examples of their poor practice,
and failure to consider the substantive points raised in your
appeal
- Landowner Authority - this is what you might describe as a
'speculative' appeal point, so it's your call whether to include
it. The MSE link I provided in a previous post sets out this
appeal point. It basically puts ParkingEye to proof that they
have a valid contract to manage parking on the site in question.
If they don't produce one, result.
- Finish with a brief summary explaining that for the various
reasons outlined above, your appeal should be upheld and the
charge should be cancelled.
To make the appeal more readable, and easier to follow, I'd
recommend using headings and numbering your appeal points. Clear
grounds of appeal in headings, with the detailed explanations
underneath.
#Post#: 5554--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: Chaseman
Date: September 20, 2023, 1:58 pm
---------------------------------------------------------
Thanks for your comments DW. I have amended the draft along the
lines you suggest. See what you think of the below. I
incorporated a para (the Greenslade quote) from a POPLA appeal
on MSE. PE has not alleged that I was the driver (other than
obliquely in their second PCN) and are pursuing me as Reg Keeper
so I concentrate on the POFA point. I have decided on reflection
not to include the Landowner Authority point. The reason is that
my whole appeal rests on not knowing where the car park in
question is. If I start asking them for details about their
contract with the landowner it might imply that I do know where
the car park is or even if not, it allows PE to open up the
whole question of where it is i.e. if I show this level of
interest then I am derogating from my main argument.
--- Quote ---
> Registered Keeper/Driver
>
> I received a Parking Charge Notice (“PCN”) issued by Parking
Eye (“PE”) to Registered Keeper ref ###### dated 1 August 2023
for vehicle VRM ###### of which I am the registered keeper,
alleging a parking “offence” on 27 July. I was not the driver of
the car on the date in question and I have made this clear in my
appeal to PE. They are therefore pursuing me for payment of the
PCN as Registered Keeper and not as the driver. This brings the
PCN within the ambit of the Protection of Freedoms Act 2012
(“POFA”).
>
> Failure to Comply with POFA
>
> This PCN fails to comply with the requirements of Schedule 4
of POFA namely, but not limited to, failing to specify the
location of the relevant land as required by section 9 (2)(a) of
the Act. It is not possible to determine the location of the
alleged breach of their conditions because the PCN states the
address as just "St Michaels Court". A quick check on Google
Maps finds at least nine St Michaels Courts in England including
Aylsham, Amersham, two addresses in London, South Shields,
Gloucester, Derby, Litchfield and Weybridge. PE therefore cannot
transfer liability for the alleged charge from the driver at the
time to me, the Registered Keeper. There is no legal requirement
to name the driver at the time and I have not done so. Even if
the address is more specifically noted in another medium or at a
later date, the PCN itself needs to specify “the location of the
relevant land” and it does not.
>
> Furthermore, the vital matter of full compliance with the POFA
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 [my emphasis], 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 me as keeper of the vehicle, where an operator
cannot transfer the liability for the charge using POFA, because
(as is the case here), Schedule 4 has not been strictly complied
with.
>
> Appeal to PE
>
> The PCN set out four options as follows:
>
> To pay the driver's alleged parking charge;
> To name the driver;
> To appeal;
> To pay and appeal.
>
> I elected to appeal which I did on 14 August and which then
gave PE 35 days to serve their substantive response.
>
> On 30 August I received a response which neither accepted nor
rejected my appeal but asked again for the driver's details. It
went on to say that “if this information is not provided within
28 days the appeal may well be rejected". This appeared to tie
their consideration of the merits of my appeal to my willingness
to supply the driver's details, which I am under no legal
obligation to provide. They were effectively fettering their
discretion.
>
> Such a response is not permitted under the BPA Code of
Practice and ranks alongside the fourth 'option' of paying the
parking charge and appealing which is similarly proscribed under
the code.
>
> On 1 September I wrote to PE bringing this extra-procedural
response to their attention. They responded by post in a letter
received by me on 4 September by issuing a second PCN, bearing
the same number as the original but dated 30 August in respect
of the same alleged parking charge, asking for a penalty to be
paid within 28 days of the [new] issue date.
>
> On the back of the “new” PCN is a paragraph that says as
follows:
>
> “We originally wrote to the registered keeper [that is me] of
the vehicle whose details were held by the DVLA at the time of
the parking event and they [me again] have informed us that you
[me again] were responsible for this vehicle at the time of the
parking event [which I did not]…..if you were not the driver at
the time [I had already told them I was not] you should tell us
the name and current postal address of the driver [I am under no
legal obligation to do this]”.
>
> They had thus sent me two separate PCNs on different dates of
issue for the same “offence” including a paragraph in the second
which is misinformed and thoroughly confusing.
>
> Rejection of Appeal
>
> Finally on 16 September PE sent a letter rejecting my appeal.
The reason given for the rejection was as follows:
>
> “We have reviewed the details outlined in your appeal, but we
are not in receipt of sufficient evidence to confirm that the
terms and conditions were not breached. These terms are clearly
displayed on the signage located throughout the above car park.”
>
> This signally fails to address the fundamental point of my
appeal which is that the PCN does not identify the location of
the car park where the “offence” is alleged to have taken place
and hence I have no opportunity to inspect any signage. Simply
telling me it was “St Michael’s Court” does not give me
sufficient detail to allow me to locate the car park in question
and hence any discussion of the terms and conditions that were
or were not displayed and were or were not breached is simply
irrelevant. I made no reference in my appeal to such terms and
conditions. PE has wilfully ignored the whole question of
“location of the relevant land” which demonstrates that my
appeal has not been properly considered.
>
> Summary
>
> I contend that there is a defect in the original PCN which
renders it non-compliant with section 9(2)(a) of POFA 2012 and
as such liability cannot be transferred to me as the registered
keeper. No subsequent further or better specification of the
address (of which there has been none) can remedy this defect.
>
> As a secondary point of appeal I note PE’s issue of a second
PCN dated 30 August but alleging the same offence date of 27
July, which bore an incoherent paragraph on the back (as set out
above) claiming I had done or said things as the registered
keeper that patently I had not. Taken together with the implied
threat that if I did not identify the driver my appeal “may well
be rejected” this is an example of outrageous bad faith that
should call for the PCN to be dismissed immediately.
>
> Finally, my appeal has been rejected in what looks like a
standard form letter that fails to address the key ground for my
appeal and demonstrates that it has not been properly considered
at all.
>
> I request that the appeal be upheld and the charge cancelled.
--- End Quote ---
#Post#: 5557--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: DWMB2
Date: September 20, 2023, 2:17 pm
---------------------------------------------------------
--- Quote from: Chaseman link ---
>
> my whole appeal rests on not knowing where the car park in
question is.
>
--- End Quote ---
Not quite - your appeal rests on them having failed to specify
the relevant land, as required by PoFA to recover the charge
from the keeper. If you don't know where it was, that doesn't
mean you don't owe the money. But if they've not complied with
PoFA, then that does mean you don't owe the money.
But nevertheless, I can see a decent argument for leaving out
the landowner authority part.
I'd say this latest draft flows a lot better than the previous.
I would remove the word 'offence', perhaps refer to a 'parking
event' instead.
(I've edited your post to remove your ParkingEye Reference # and
your VRM).
#Post#: 5560--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: Chaseman
Date: September 20, 2023, 2:28 pm
---------------------------------------------------------
DW, yes I see your point and I have to agree your logic, but it
comes down to the same thing - they didn't specify the address
of the car park in sufficient detail and hence I maintain I
don't know where it is which leads to a) I can't inspect any
signage and b) they have not complied with POFA. I agree that me
just not knowing where the car park is does not get me off HAD
THEY actually complied with POFA.
I have picked this up off Pepipoo in the Vale Road case which
also hinged on imprecise location. I would hope the POPLA
assessor would follow the same thinking here.
HTML https://i.imgur.com/0DWBTykl.jpg
Are you happy that I now file that appeal? I will change
"offence" to parking event.
#Post#: 5561--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: DWMB2
Date: September 20, 2023, 2:35 pm
---------------------------------------------------------
That's certainly the sort of logic you want the assessor to
follow. I wasn't disagreeing with your point around knowing the
location - my point was more that even if you had figured out
which location it was, that wouldn't mean they have
automatically complied. It's their job to specify, not yours to
turn detective and work out where they mean.
Unless anyone else has any contrary views, I think it covers the
main points you're looking to make.
#Post#: 5562--------------------------------------------------
Re: Private PCN St Michael's Court
DIR By: Chaseman
Date: September 20, 2023, 2:37 pm
---------------------------------------------------------
If anyone is interested this is the Pepipoo topic link and the
judgment appears in post #65.
HTML http://forums.pepipoo.com/index.php?showtopic=144900&st=60
*****************************************************
Page 5 of 9
DIR Previous Page
DIR Next Page