DIR Return Create A Forum - Home
---------------------------------------------------------
FreeTrafficLegalAdvice
HTML https://ftla.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Private parking tickets
*****************************************************
#Post#: 47287--------------------------------------------------
Private residential parking - POFA 2012 claimed but not
compliant
DIR By: FaeLLe
Date: November 27, 2024, 9:43 am
---------------------------------------------------------
Hello all,
Can you please advise on the legality of this POFA 2012 notice
(PCN and signs below)? I believe there are several grounds for
appeal, but I would appreciate your guidance. I am trying to
help a neighbour out with this one.
It seems like a very dodgy notice, and it does not even have a
valid address as the alleged contravention site on the notice
(postcode)!
Should I focus on keeper liability and include the other content
(below) as additional points of appeal? Basically, state that
the creditor has not complied with POFA 2012 Paragraph 9(2)
requirements, and there will be no admissions on the identity of
the driver. Specifically,
- Paragraph 9(2)(e): The creditor has not indicated that they do
not know the identity of the driver.
- Paragraph 9(2)(e): The creditor has not specifically mentioned
that the creditor should be provided with the name of the driver
and a current address for service for the driver. The creditor
merely asked the registered keeper to provide the driver with
the notice which is an incomplete requirement.
- Paragraph 9(2)(f)(ii): The creditor has not complied with POFA
2012 requirements which indicate that the registered keeper will
only be pursued for payment if the identity of the driver is not
provided after 28 days.
POTENTIAL GROUNDS FOR APPEAL(Based on Signage and Notice
Compliance)
1. Failure to Specify the Period of Parking
o Regulation Breached: POFA 2012, Paragraph 9(2)(a)
o Issue: The notice does not specify the "period of parking,"
only a timestamp (16:44). POFA requires the notice to state the
duration of the parking event to establish a breach of terms.
________________________________________
2. Lack of a Presumed Delivery Date for the Notice
o Regulation Breached: POFA 2012, Paragraph 9(2)(I)
o Issue: The notice fails to include the presumed delivery date,
which is necessary to determine when the 28-day period for
keeper liability begins. The notice was received after the
28-day period and the postage envelope does not include a
marking which could be relied upon to evidence the presume date
of delivery of the notice.
________________________________________
3. Insufficient Explanation of Keeper Liability Conditions
o Regulation Breached: POFA 2012, Paragraph 9(2)(f)
o Issue: The notice does not sufficiently explain all the
statutory conditions under which keeper liability applies, such
as the need for reasonable efforts to identify the driver and
issuing the notice within the required timeframe. The notice
does not ask the driver to identify the driver and instead
insists that the registered keeper pay the charges.
________________________________________
4. Failure to Clearly Display the Parking Charge
o Regulation Breached: POFA 2012, Paragraph 9(2)(d) & IPC Code
of Practice, Part E
o Issue: The parking charge (£100) is not prominently displayed
on the signage. Key terms like the parking charge must be
prominent and legible to form part of the parking contract. The
sign uses small font for critical information, and the
positioning may not ensure it is visible from all entry points
or parking bays.IPC Code of Practice mandates that a standard
font size is used for key terms and conditions, in this case the
sign is mounted at a height and the parking charges are in a
small font size that makes it clear and legible.
________________________________________
5. Poor Visibility and Positioning of Signage
o Regulation Breached: IPC Code of Practice, Part E.3
o Issue: The signage is mounted at a height that could make it
difficult for drivers to read from within a vehicle. Signs must
be positioned to ensure they are visible and legible upon
entering the site and while parking.
________________________________________
6. No Mention of ANPR Usage
o Regulation Breached: IPC Code of Practice, Part B.2 & Data
Protection Act 2018 (GDPR)
o Issue: The signage does not mention that ANPR cameras are in
operation, even though a CCTV or camera type device is
collecting vehicle data as evident from the photographs taken to
process this parking . This omission breaches transparency
requirements. The data processing notice at the bottom does not
clarify the terms under which personal data is being collected
and processed. This is a breach of IPC Code of Practice and data
protection laws.
________________________________________
7. No Evidence of Authority to Operate
o Regulation Breached: POFA 2012, Paragraph 9(2)(h)
o Issue: The signage does not explicitly state that Parking &
Property Management Ltd is authorised to enforce charges or
manage parking on the land. This is a requirement to validate
the notice.
________________________________________
8. Failure to Prove Reasonable Cause for Accessing Keeper Data
o Regulation Breached: POFA 2012, Schedule 4 & DVLA Access Rules
o Issue: The creditor must demonstrate reasonable cause for
accessing the DVLA’s keeper data. The signage and notice do not
clearly explain the alleged breach or provide sufficient
evidence to justify accessing personal data, if the contract is
not being enforced on legally enforceable terms then the
creditor is breaching data privacy regulations by making false
representations to DVLA.
________________________________________
9. Unfair or Disproportionate Parking Charge
o Regulation Breached: IPC Code of Practice, Part E.4
o Issue: The parking charge (£100, increasing to £170) is
considered disproportionate, particularly if signage and terms
are unclear. Charges must be proportionate and clearly
communicated in order to form a valid contract with the driver.
________________________________________
10. Non-Compliance with Timeframes
o Regulation Breached: POFA 2012, Paragraphs 9(4) & 9(5)
o Issue: The PCN was issued on 18 October 2024 for a
contravention on 15 October 2024. While this appears within the
14-day limit, no evidence has been provided to confirm delivery
within the statutory timeframe.
________________________________________
Additional Signage-Specific Points
11. Lack of Prominence for Key Terms
o Regulation Breached: IPC Code of Practice, Part E.2
o Issue: Key terms, such as the parking charge and conditions
for valid parking, are not sufficiently prominent on the
signage. This fails to meet the requirement for clarity.
________________________________________
EVIDENCE FROM THE WEBSITE OF PPM LTD REGARDING PCN:
HTML https://drive.google.com/file/d/1N4glL0REMeZ4SgZ7SPKUojv4sF3g8I5Y/
PCN FRONT
HTML https://i.imgur.com/XmNEAZX.jpeg
PCN REAR
HTML https://i.imgur.com/fy5EZvm.jpeg
SIGNAGE ON PCN EVIDENCE
HTML https://i.imgur.com/b7KqB4a.jpeg
#Post#: 47298--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: b789
Date: November 27, 2024, 10:35 am
---------------------------------------------------------
Welcome. Whilst you are assisting someone else, any appeal or
subsequent defence can only be done in the name of the Keeper to
whom the PCN was addressed.
We need to know the circumstances of the PCN. Was the driver or
the keeper of the vehicle a resident at the location? If so,
what does their lease/tenancy agreement say about parking? What
it doesn't say about parking is equally important. If they were
only visiting someone at the location, the lease of the person
being visited will also apply.
In the majority of these "residential" cases, the operator does
not have a valid contract with the landowner or they
owner/tenant lease has supremacy of contract and the operator
cannot simply override the terms of the lease just because thy
have been allowed to put up some signs.
Regarding your points of appeal, whilst they are points that
could be used, assuming they were valid (which in this case
almost none of them are), no initial appeal, under any
circumstances is going to succeed. Also, as they are IPC
members, there is less than 4% chance of an IAS secondary appeal
succeeding either.
the most likely outcome will be if a claim is made in the county
court. That is ideally what you want to get this done and
dusted. The county court is the ultimate independent dispute
resolution service and in the majority of cases, when defended,
are either discontinued, struck out or won.
Now, to cover your PoFA points and why they are not necessarily
relevant:
[indent]1. Failure to Specify the Period of Parking:
Whilst that argument has occasionally been successful at POPLA
and in court, it would not work with an initial appeal or with
the IAS.
2. Lack of a Presumed Delivery Date for the Notice:
The notice is "deemed" given on the second working day after the
date of issue. It matters not when it was actually received
unless it can be evidence that it was received after that date.
Good luck with evidencing that. Any argument about "proof of
posting" or "proof of delivery" could be made in court but at
appeal stage, it would never be successful.
3. Insufficient Explanation of Keeper Liability Conditions:
There is a flaw in their wording as PoFA states at 9(2)(f)
"...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". Whereas in their
Notice to Keeper (NtK) they state: "[i]...the case will be
passed to our Debt Recovery Agent which me escalate to
court...[/I]" Again, a technical breach of PoFA requirements but
would only be useful in court, not in an appeal.
4. Failure to Clearly Display the Parking Charge:
Always a good one but, again, only useful in court. You'd have
to point out the obvious with a comparison to the Beavis sign
like this:
HTML https://i.imgur.com/swfdQkf.jpeg
5. Poor Visibility and Positioning of Signage:
Probably too weak to argue in this case but is sometimes useful
in a POPLA appeal or court. With the IAS, forget it!
6. No Mention of ANPR Usage:
Weak in this case as they show a symbolic camera and mention
"images". It would probably be a good one to point out in court,
as breach of the Data Protection Act 2018.
7. No Evidence of Authority to Operate:
Would only work if it went to court and they were put to strict
proof of a valid contract flowing from the landowner.
8. Failure to Prove Reasonable Cause for Accessing Keeper Data:
A non-starter as they have stated the cause as "Not displaying a
valid permit".
9. Unfair or Disproportionate Parking Charge:
Only useful in court. A charge of £100 is not considered
disproportionate as long as it is not a penalty. The fake £70
added fee is arguable in court only and, in this case, it is
mentioned on the sign.
10. Non-Compliance with Timeframes:
Already discussed in point #2 above. Delivery does not have to
be "confirmed". It is "deemed" delivered on the second working
day after issue. Only arguable in court if the cannot provide
proof of posting or proof of delivery.
11. Lack of Prominence for Key Terms:
Again, as an IPC operator, only valid if it went to
court.[/indent]
#Post#: 47304--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: FaeLLe
Date: November 27, 2024, 10:58 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> Whilst you are assisting someone else, any appeal or
subsequent defence can only be done in the name of the Keeper to
whom the PCN was addressed.
>
--- End Quote ---
Well noted, I will ask the registered keeper to submit the
appeal. The registered keeper is not earning an income and I was
trying to help them.
--- Quote from: b789 link ---
>
> We need to know the circumstances of the PCN. Was the driver
or the keeper of the vehicle a resident at the location?
>
--- End Quote ---
Resident at one of the apartments (the address on the notice is
weird, not sure if you had any comments about that).
Holds a valid council parking permit (but due to signage piled
up two PCNs - one other similar to this).
--- Quote from: b789 link ---
>
> If so, what does their lease/tenancy agreement say about
parking? What it doesn't say about parking is equally important.
If they were only visiting someone at the location, the lease of
the person being visited will also apply.
>
--- End Quote ---
The RK is a private tenant. I am unsure they can get the details
from their landlord.
The RK has a council parking permit. The council permit parking
signage is a mess which confused them and they thought they were
parking on the council permit parking area. I attempt to explain
this through the image below.
Green shading: Private parking area.
Yellow shading: Council permit parking area - the yellow star at
the start of CADET DR is the only entry and exit out of this
entire area.
Pink shaded area (overlapping with the text): Interestingly, at
the entrance of the private parking area, the first parking
space on the left is on private land (where neither the council
nor the private parking operator has the authority to operate).
RED X marks the entry and exit of the private parking area:
There is no 'END OF PERMIT PARKING' and 'START OF PERMIT
PARKING' signs before and after entering the private parking
area; usually councils are supposed to put these up and
Southwark Council has indicated that the entire CADET DR is a
permit parking area.
HTML https://i.imgur.com/3qRUujT.png
--- Quote from: b789 link ---
>
> In the majority of these "residential" cases, the operator
does not have a valid contract with the landowner or they
owner/tenant lease has supremacy of contract and the operator
cannot simply override the terms of the lease just because thy
have been allowed to put up some signs.
>
--- End Quote ---
Going to be hard to ascertain in this case as the landlord would
be unlikely to handover their leasehold documents to the private
tenant.
--- Quote from: b789 link ---
>
> Regarding your points of appeal, whilst they are points that
could be used, assuming they were valid (which in this case
almost none of them are), no initial appeal, under any
circumstances is going to succeed. Also, as they are IPC
members, there is less than 4% chance of an IAS secondary appeal
succeeding either.
>
--- End Quote ---
I am not surprised at the bias shown by IAS :/
--- Quote from: b789 link ---
>
> the most likely outcome will be if a claim is made in the
county court. That is ideally what you want to get this done and
dusted. The county court is the ultimate independent dispute
resolution service and in the majority of cases, when defended,
are either discontinued, struck out or won.
>
--- End Quote ---
Given the circumstances of this case do you think with the
information we have we could succeed?
--- Quote from: b789 link ---
>
> Now, to cover your PoFA points and why they are not
necessarily relevant:
>
> [indent]1. Failure to Specify the Period of Parking:
>
> Whilst that argument has occasionally been successful at POPLA
and in court, it would not work with an initial appeal or with
the IAS.
>
> 3. Insufficient Explanation of Keeper Liability Conditions:
>
> There is a flaw in their wording as PoFA states at 9(2)(f)
"...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". Whereas in their
Notice to Keeper (NtK) they state: "...the case will be passed
to our Debt Recovery Agent which me escalate to court..." Again,
a technical breach of PoFA requirements but would only be useful
in court, not in an appeal.
>
--- End Quote ---
Would IAS really choose to not uphold the need for strict
compliance with the POFA wording?
--- Quote from: b789 link ---
>
> 4. Failure to Clearly Display the Parking Charge:
>
> Always a good one but, again, only useful in court. You'd have
to point out the obvious with a comparison to the Beavis sign
like this:
>
--- End Quote ---
I will prepare a sign. Could you reference some past cases where
this was relevant so I can include it in the appeal nonetheless.
--- Quote from: b789 link ---
>
> 11. Lack of Prominence for Key Terms:
>
> Again, as an IPC operator, only valid if it went to
court.[/indent]
>
--- End Quote ---
Any grounds for raising a consumer rights complaint against the
parking operator?
#Post#: 47311--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: b789
Date: November 27, 2024, 11:21 am
---------------------------------------------------------
If they are a tenant, then they will have a Tenancy Agreement
(TA). What exactly does that agreement say about parking at the
location? Get some photos of the signage at the entrance to the
location, not just the terms signs within the car park.
Looking at the location in GSV, the images are from 2022 but it
is still the same operator. The councils signage is irrelevant
as far as this is concerned. What is important is the operators
signage. As you can see in this GSV image from 2022, the
entrance sign is obscured by foliage:
HTML https://i.imgur.com/Q5RzPlD.jpeg
HTML https://maps.app.goo.gl/1yfA5RaMYiSVynF9A
If the situation is similar at the time, in this case, anyone
driving in through that entrance and immediately parking in the
first bay on the left, would not see any signs that make it
obvious that it is a privately controlled car park. Again, all
good argument for a defence in court.
#Post#: 47334--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: mickR
Date: November 27, 2024, 2:46 pm
---------------------------------------------------------
have I missed where there is any mention by them of relying on
Pofa ???
#Post#: 47337--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: FaeLLe
Date: November 27, 2024, 3:23 pm
---------------------------------------------------------
--- Quote from: mickR link ---
>
> have I missed where there is any mention by them of relying on
Pofa ???
>
--- End Quote ---
Lol yes this is an interesting point.
[member=26]b789[/member] how does this work (the fact that they
have not cited the legislation that makes them entitled to the
drivers identity?).
For the charge t looks like they will be pursuing payment under
contract act.
#Post#: 47345--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: DWMB2
Date: November 27, 2024, 4:22 pm
---------------------------------------------------------
PoFA doesn't necessarily state that you must explicitly
reference it by name to comply (although many do) - one can
still make the arguments b789 suggests either way.
#Post#: 47361--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: mickR
Date: November 27, 2024, 5:13 pm
---------------------------------------------------------
really? I thought it was a requirement it had to be referenced
and correctly referenced on the NTK
#Post#: 47372--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: b789
Date: November 27, 2024, 6:21 pm
---------------------------------------------------------
PoFA itself does not have to be referenced or even mentioned.
Only the requirements of PoFA have to be complied with.
#Post#: 54079--------------------------------------------------
Re: Private residential parking - POFA 2012 claimed but not
compliant
DIR By: FaeLLe
Date: January 19, 2025, 1:44 pm
---------------------------------------------------------
The RK appealed at the onset when they received the original PCN
(without consulting me), which was refused, but they did not
give them an IAS code to appeal. We assumed an IAS code would
follow shortly but received a letter from BW Legal (included at
the end of this post) demanding payment or threatening to face a
Letter of Claim.
What would you advise them to do? Should we write to BW Legal
and ask them to contact their client to issue an IAS code since
they have not provided one yet?
The sign at entrance is really deficient and was in this manner
on the date the PCN was issued.
Answers to some previous questions are below,
This is what the RK's tenancy contract says.
HTML https://i.imgur.com/ADBClHn.png
Sign at the entrance of the apartment parking (off Cadet Drive)
as below.
HTML https://i.imgur.com/lB1Ol6h.jpeg
HTML https://i.imgur.com/Jyka9bi.jpeg
---
BW Letter below
HTML https://i.imgur.com/zboV9iO.jpeg
*****************************************************
Page 1 of 4
DIR Next Page