Farmfoods Blackburn, ParkingEye ticket Options

[MHU]

Hi

This ticket was received whilst shopping at Farm foods then went into town. Did not realize the maximum time allowed in the car park was 60mins and was there for 1 hour 59mins

Can i appeal this or ignore or anything at all?


Thanks

This post has been edited by MHU: Fri, 7 Sep 2018 - 21:03

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[MHU]

So would it be correct to go ahead with this instead:

I was the hirer of the vehicle relating to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.


1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice



2) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

In order to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, an operator must deliver a Notice to Hirer in full compliance with POFA’s strict requirements. In this instance, the Operator’s Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14(2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and © a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). The Operator did not provide me with copies of any of these documents.
Should the Operator try to suggest that there is any other method whereby a vehicle’s keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA.
I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......
.......... However keeper information is obtained, 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”.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle’s hirer. For this reason alone, POPLA may determine that the Operator’s claim against me is invalid.

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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

[bearclaw]

You need to sort the numbering out.

Dont ask POPLA to consider, tell them that you (the keeper) are not liable for ALL these reasons any ONE of which is fatal to being held liable.

Put in ALL points that can be used. Although the lack of NTH is a slam dunk win stick in everything, make it so that PE find it too hard to refute them all..

So - signage - get copies point out how it's deficient and the driver didnt see it. Signage is poor quality and small and confusing lettering. Is there advertising consent if not that's an offence stick in something about ex turpi causa. Driver was there for two hours, clearly the signage is inadequate if they didnt see the one hour clause.

This post has been edited by bearclaw: Fri, 30 Nov 2018 - 13:06

[nosferatu1001]

Bearclaw - this is PE, not VCS.

[bearclaw]

Doh... well spotted.

Hangs head in shame and walks off muttering.

[MHU]

You need to sort the numbering out.

Dont ask POPLA to consider, tell them that you (the keeper) are not liable for ALL these reasons any ONE of which is fatal to being held liable.

Put in ALL points that can be used. Although the lack of NTH is a slam dunk win stick in everything, make it so that PE find it too hard to refute them all..

So - signage - get copies point out how it's deficient and the driver didnt see it. Signage is poor quality and small and confusing lettering. Is there advertising consent if not that's an offence stick in something about ex turpi causa. Driver was there for two hours, clearly the signage is inadequate if they didnt see the one hour clause.

numbering sorted ..

but do i change anything else?



This post has been edited by MHU: Mon, 3 Dec 2018 - 09:45

[MHU]

Hello


is the above ok? So i can do the appeal online today

[bearclaw]

Lets see the final appeal text before you send it. Did you get any pictures of the signs?

[MHU]

I could not get the pictures due to where it is, and where i was over the weekend ..
and wont be able to go all week again

I was the hirer of the vehicle relating to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below:

1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice



1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

In order to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, an operator must deliver a Notice to Hirer in full compliance with POFA’s strict requirements. In this instance, the Operator’s Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14(2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and © a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). The Operator did not provide me with copies of any of these documents.
Should the Operator try to suggest that there is any other method whereby a vehicle’s keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA.
I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......
.......... However keeper information is obtained, 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”.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle’s hirer. For this reason alone, POPLA may determine that the Operator’s claim against me is invalid.

2) 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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


This post has been edited by MHU: Mon, 3 Dec 2018 - 10:41

[bearclaw]

Your numbering scheme goes 1) 2) 2) 3)

The titles for numbers 2) and 3) are the same.

How long do you still have before you have to submit the POPLA appeal?

[MHU]

I have amended the numbering above ..

The letter was sent on 15/11 so by the 14th December

[bearclaw]

So time to check if the signs have advertising consent then - find out from the local authority. If not then you need to draw attention to that and stick something in about ex turpi causa too.

[MHU]

ok, so i managed to get someone to drive there and get pics for me.

Pretty sure the first sign was not updated .. before .. but can not recall .. as the ticket is sent afterwards there was no need to take pics at the time of incident ..

At the Entrance, but on the oncoming vehicles side:



View of signs from entrance of Car Park


One of the signs

[MHU]

Have you had a chance to check the above

[bearclaw]

Rather small text, the entrance sign doesnt look like it's easily readable from a moving car. I'd probably not put the pictures in the appeal as it's not that relevant as the NTH issues is the main one here. Certainly mention that the signs are obscure, unremarkable and not seen, containing a font too small to read from the seat of a moving vehicle when the driver is fully occupied in driving the vehicle safely.

Did you check with the council about advertising consent and have you looked up ex turpi causa?

[Sheffield Dave]

Those signs are similar to the ones the Supreme Court ruled were fine and dandy :-(

[MHU]

Rather small text, the entrance sign doesnt look like it's easily readable from a moving car. I'd probably not put the pictures in the appeal as it's not that relevant as the NTH issues is the main one here. Certainly mention that the signs are obscure, unremarkable and not seen, containing a font too small to read from the seat of a moving vehicle when the driver is fully occupied in driving the vehicle safely.

Did you check with the council about advertising consent and have you looked up ex turpi causa?

i checked with council, and they pass me from one team to another and do not even know the answer them self properly!

not sure what is meant by Ex turpi causa? Can you please elaborate?

[nosferatu1001]

That they cannot win a court case based on an illegal action
Failing to obtain Advertising Consent is a criminal offence
Using that criminal offence to support a charge in civil court is not something a court should support.

[MHU]

That they cannot win a court case based on an illegal action
Failing to obtain Advertising Consent is a criminal offence
Using that criminal offence to support a charge in civil court is not something a court should support.

Thanks, i will try call the council again. .. but what if i get nothing from them?

[bearclaw]

Rather small text, the entrance sign doesnt look like it's easily readable from a moving car. I'd probably not put the pictures in the appeal as it's not that relevant as the NTH issues is the main one here. Certainly mention that the signs are obscure, unremarkable and not seen, containing a font too small to read from the seat of a moving vehicle when the driver is fully occupied in driving the vehicle safely.

Did you check with the council about advertising consent and have you looked up ex turpi causa?

i checked with council, and they pass me from one team to another and do not even know the answer them self properly!

not sure what is meant by Ex turpi causa? Can you please elaborate?

If you stick ex turpi causa on the search box on here you should get plenty of hits and references and examples.

You will want the Planning Dept at the town hall probably. I presume that Blackburn and Craven council will be the one you want - tell them you want to look at all the Advertising consents for the car park at whatever the address is.

[nosferatu1001]

You jsut ask Planning.
they will know
If they dont know of any ADVERTISING applications then there arent any.