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CEL PCN recieved
ElmoCool
post Thu, 6 Dec 2018 - 23:28
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Hi guys,

Driver of the car went to a late night desert place (24/11/2018) and parked on a non-lit car park just across from the place, they were there for just shy of 3 hours according to the letter, from 20:53 till 23:50 and they're trying to fine for £60 if paid within 14 days or it goes up to £100 thereafter.

The PCN was issued on the 30/11/2018, I received the letter on 05/12/2018

The parking area states it's for permit holders according to the letter but at the parking area there wasn't any obvious clear signage due to the poorly lit area, I'm just curios as to whether I can dispute this and how the best way to go about it was

The letter received was from CEL, what other information do i need?

Thanks in advance!

This post has been edited by ElmoCool: Fri, 7 Dec 2018 - 07:33
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post Thu, 6 Dec 2018 - 23:28
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cabbyman
post Thu, 10 Jan 2019 - 19:04
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EDIT that image in post #17 NOW. You have left thye POPLA code in, which, incidently expires 18/1/19 - 8 days!


--------------------
Cabbyman 10 PPCs 0
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ElmoCool
post Thu, 10 Jan 2019 - 22:11
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Okay so I've drafted this up using various bits I've spotted on here along with MSE i feel it's the most relevant to my situation but would appreciate any input you guys have...


POPLA Ref: ********
Civil Enforcement Parking Charge Notice no: ************

Dear POPLA Adjudicator,

I am the registered keeper of the vehicle ******* and would like to submit an appeal regarding a parking charge from Civil Enforcement Limited

1. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.

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, 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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

2. The signage on the car park site is not compliant with the BPA standards therefore there was no valid contract between the parking company and the driver

Following the initial receipt of charge, I have physically been to see the site in order to assess the signage present. I’ve found that the signs and any phrasing used that Civil Enforcement Limited are using is far from clear enough for any driver to notice upon entry as they aren’t even directed towards the driver at the entrance of the site, more so especially given the time (20:53) of the incident visibility being severely affected due to lack of lighting. I find that the signs do not provide adequate notice to the driver towards the terms of the car park as they do not comply with the BPA code of Practice appendix B. I would like to request that the operator provides clear photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

3. Amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
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Ollyfrog
post Fri, 11 Jan 2019 - 01:25
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GPEoL? I'm pretty certain you've found an old template here as this (AFAIK) is never mentioned now. Others will confirm for sure.
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SchoolRunMum
post Fri, 11 Jan 2019 - 01:31
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Scrap #3 and replace it with the usual 'no landowner authority' POPLA point from MSE.
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nosferatu1001
post Fri, 11 Jan 2019 - 08:52
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If youre looking at appeals from older than 2018, stop doing so.
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ElmoCool
post Fri, 11 Jan 2019 - 21:14
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Okay all advice taken on board, finally figured out how to properly navigate MSE forums, so as you all mentioned I've scrapped point 3 and added the following since it was last updated in 2018:



3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

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SchoolRunMum
post Fri, 11 Jan 2019 - 21:18
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You should also have used the up to date signage POPLA point from MSE which is far longer than yours.
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ElmoCool
post Fri, 11 Jan 2019 - 22:07
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Okay I've added the up to date signage text now, is there anything else you'd recommend adding or personalizing in any way?
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SchoolRunMum
post Fri, 11 Jan 2019 - 23:06
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QUOTE
parked on a non-lit car park


Photos taken in the dark, lots of them, embedded into the POPLA appeal story document, to lead the Assessor to the right decision easily.
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ElmoCool
post Sat, 12 Jan 2019 - 08:24
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I've only got the one so far but i'm heading down that area tonight so i'll get a load more
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ElmoCool
post Sun, 13 Jan 2019 - 20:13
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I've uploaded some images to this imgur: https://imgur.com/a/6UdkOdR
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