PCN in Radisson Blu Stansted. Options

[ruddlescounty]

Hi.
I have received a notice from PE ( I was away when it arrived so cant say the date received, but either 1st, 2nd or 3rd Oct), it is dated 27th Sept.
I have since received a reminder, dated 6/10/18.

this was for an offence dated 5/7/18 nearly 3 months ago.

the time shown on the ticket amounts to 11 minutes.


the actual event was that this was a pickup at the Radisson blu entrance, the car did not park, so I think it was driven through the car park to the hotel entrance, waited, collected and drove back out.

could you advise my next steps please?
from reading here it seems I should not ignore. but do I appeal or simply write and reject?

would it help if I scanned and posted my notice.

thanks
Ruddles

This post has been edited by ruddlescounty: Fri, 12 Oct 2018 - 12:13

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[ostell]

So if there was no ticket on the windscreen then the Notice to Keeper has to get to you within 14 days otherwise between days 28 and 56. This seems to have missed both timescales.

Remove the timeline comments as it hints at a driver.

Does the Notice to Keeper mention POFA liability on the back page? If not then they know they have got it wrong and just hope that you don't realise that and do not know any difference.

So send this as an appeal


Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. You cannot, therefore, 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 will not be doing so.

I do not expect to hear from you or your debt collectors, again except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

Yours etc


This post has been edited by ostell: Fri, 12 Oct 2018 - 11:52

[ruddlescounty]

many thanks.
I cant see any reference to POFA anywhere, but have uploaded the letter in case I have missed it.
unless anyone advises anything different, I will send off the response on Monday.
thanks again.
R

Attached File(s)

 pcn.pdf ( 1.1MB ) Number of downloads: 117

 

[ostell]

you wiped out the dates! That's a PE non POFA Notice to keeper, they know they've failed. Just send the suggested letter and wait to see what happens. You may have to appeal to POPLA but that should be successful.

[ruddlescounty]

er… yes, sorry though it should be generic enough not to be recognisable
dates are:
Date of event:5/7/18
date issued: 27/9/18
date: 27/9/18
btw do I send letter or is email preferable?

[SchoolRunMum]

Neither - they have an online appeals page, as the PCN tells you.

Choose 'registered keeper' NOT DRIVER OF COURSE in the dropdown! Unless you are the hirer/lessee in whihc case choose that instead (are you)?

NEVER post letters to a parking firm, PE seem to have a mail black hole.

[ostell]

And take a screen grab of what you put on there before you send.

[ruddlescounty]

as Ostell predicted, i have had my appeal rejected so now i need to appeal to Popla.
is there anything i should know? do i send the same letter to them? do i need to upload anything here?

thanks

[SchoolRunMum]

no, not the same appeal. A LONGER one with several points as safety nets in case POPLA have a nightmare.

Search Google for:

ParkingEye Golden ticket POPLA

and copy one from here or MSE Parking Forum, and adapt it, and show us.

You have a Golden Ticket (a forum phrase for a PE PCN that you cannot lose at POPLA!).

This post has been edited by SchoolRunMum: Mon, 12 Nov 2018 - 21:18

[ruddlescounty]

haha Golden Ticket!
love it.

many thanks i'll do some reading and post back.

[ruddlescounty]

ok after a stressful couple of weeks (not related) I have finally managed to look into this. please find below an appeal letter copied and adjusted from a template on MSE.
before I send to POPLA id appreciate your views and comments on whether this should be sent as is or if any amendments are needed. I have added the part about google maps under sec 2 as this is what was on the driver's timeline - should I bother to include this?
many thanks

*********************

Dear POPLA,

On the 05/07/2018, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”

As the registered keeper I wish to refute these charges on the following grounds:

1) As the registered keeper, I have no liability for this charge.
2) The operator failure to adhere to the British Parking Associations (BPA) Code of Practice Grace’ Periods
3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

1) As the registered keeper, I have no liability for this charge.

To support this point further the following areas of dispute are raised:

• The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons
• The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
• The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012.
• The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

The Notice to Keeper is not compliant with Protection of Freedoms Act 2012

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Thursday 5th July 2018. The relevant period is therefore the 14 day period from Friday 6th July 2018 to Thursday 19th July 2018 inclusive. Sub-paragraph 9 (6) states that 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. The “Letter Date” stated on the PCN is Thursday 27th September 2018 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Monday 1st October 2018 (i.e. outside of the relevant period).

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
The notice must be given by—
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;
Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f).


The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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.

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, 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 myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against 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) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods.


The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “…a reasonable period without having their vehicle issues with a parking charge notice.” Subsections 13.2 and 13.4 offer further clarification stating that
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
allow them a grace period to read your signs and leave before you take enforcement action.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Upon receiving the Parking Charge, the document described the vehicle as merely entering the car park at 18:35 and merely leaving at 18:46. The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period. As Kelvin Reynolds of the BPA quoted in the news article ‘Good car parking practice includes ‘grace’ period’: “…there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.” To briefly summaries his definition, an observational period must include sufficient time for a motorist to park, observe the signs, make a decision as to whether they wish to comply with the conditions and pay.

The total time from arrival to exit was 11 minutes. However data obtained from Google maps shows that the vehicle arrived at Stansted at 18:37 and departed at 18:46 calling into question the accuracy of the ANPR camera time settings. It is clear from the evidence that ParkingEye Ltd. have failed to uphold and consider reasonable grace periods set out in the BPA Code of Practice, as the total time within the car park does not allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for finding a parking space, purchasing the ticket and leaving the car park.

3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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


4) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN


This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed. Here, the signs are sporadically and poorly placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on the majority of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operator’s signs would not be clearly visible from a parking space [...] the appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/t...s/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-l...lity-chart.aspx


''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.”
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed, in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgment is an example of a binding case law from the Court of Appeal offers further supports my argument:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, I
request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted, or the driver misinformed.

In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.

[ruddlescounty]

Hi again.
i need to get this appeal submitted so thought i'd better bump this up. would anyone be able to review my appeal on previous post. especially point around the google timeline info (end of point 2). is this relevant, admissible or should i omit as it may identify the driver?
the rest is cut/paste/amended from other threads so i think thats ok, but would appreciate any advice.

many thanks

[ostell]

The first couple of statements about POFA should make it successful

[ruddlescounty]

Thanks Ostell.
i think i will remove the google point and post the rest.
however, the website appeal process gives choices which dont entirely fit. do i select that i was not improperly parked, or the fifth option "other grounds"
see attached screenshot.
thanks in advance.
R

[nosferatu1001]

OTHER
ALL POPLA appeals are conferted to PDF, uploaded to the site under OTHER.

[ruddlescounty]

OK appeal has gone in. I will update when i hear back from them.

[ruddlescounty]

Hi again and seasons greetings!

i have just heard back from POPLA.
they tell me that PE have now uploaded their evidence to the portal. a link is given but it doesnt show anything - just presents me with the logon prompt.
when i login i see no link to nor any evidence docs.

tenacious buggers arent they!

is this standard practice for POPLA?
Obviously they haven't looked at my grounds, otherwise, it being a "Golden Ticket" they would have simply upheld the appeal.

is this anything to worry about?

i have written back to POPLA explaining that the link doesnt work and requesting next steps.

cheers
R

[nosferatu1001]

Don't write. Call. Email might go astray and you only have 7 days total


They do not do any review until after this point.

[ruddlescounty]

the info has now appeared (twice) on the popla portal.
its 47 pages of text and photos, including a heavily redacted and sometime illegible supply agreement with radisson.
should i upload here - will i need to redact my details if so?

i have the ability to add my comments to the popla portal. anything you would suggest i put in there? e.g. that PE have ignored the point about being beyond 14 days.
there are also obviously two camara shots of my vehicle - how does one know that the clocks on each are in sync, esp since this is only 89 seconds over the minimum grace period!
TIA
r

[ostell]

Go through their statement and anything you disagree with then say so. If you don't disagree then it is taken that you agree.