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AS Parking - Padstow - non BPA
visor
post Fri, 7 Oct 2016 - 12:42
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Good afternoon all,
I've spent a couple of days now reading through the Pepipoo site, (and others such as MSE), FAQ's and the numerous threads and so I'm hoping I haven't missed something that answers my questions. Apologies if I have.

My partner's car was ticketed in Padstow Harbour Commissioner's car park on Sept 16 for overstaying (23 minutes over). My
partner is the registered keeper but was NOT the driver. The ticket was issued by AS Parking. I have checked with BPA and they are not a member. The ticket looks to be in order in that it seems to contain all the required information according to everything I have read, including the appeal procedure (21 days which is up today). However I have also read that AS use the IAS 'appeal'(!) service.
I have not thus far responded to the windscreen ticket as the advice seems to be to ignore until receipt of Notice to Keeper is received.
Is this correct? Or must I/the RK respond today?
If so, when the NtK is received is it possible to refuse IAS and request/demand POPLA. I'm sure that I have read somewhere on your forum that this is possible.

Advice on how to proceed would be much appreciated.
Many thanks
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post Fri, 7 Oct 2016 - 12:42
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Jlc
post Fri, 7 Oct 2016 - 12:51
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Wait and see what arrives in the post - and specifically whether it claims the keeper is liable. The response is simply that they have written to the keeper and they were not driving.

POPLA is not available.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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ostell
post Fri, 7 Oct 2016 - 12:53
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POPLA and IAS are not interchangeable. IAS will reject any appeal.

Wait for the NTK and do not name the driver. From the description this sounds as though this could be subject to byelaws and therefore not relevant land for AS to hold the keeper liable under POFA. More research for you to do.

Edit: Yes, there are byelaws. Is where the car was parked in the byelaw area?

This post has been edited by ostell: Fri, 7 Oct 2016 - 12:56
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visor
post Fri, 7 Oct 2016 - 13:03
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That was quick Jlc, thank you

Ostell,
Thank you - I'll do some checking. Where the car was parked was the main car park area closest to the town and near the harbour master's offices.
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Jlc
post Fri, 7 Oct 2016 - 13:16
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Indeed, which is why it's worth waiting for them to write to see what they claim...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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visor
post Fri, 7 Oct 2016 - 13:29
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Ostell,
OK, I've viewed the Byelaws and in particular 'interpretation and definition' which refers to the area covered by the bye-laws and I'm certain this car park falls within that area. However, just to be on the safe side I'll phone the commissioners office for confirmation.
Is this all I need to know - that the car park falls within the area covered by the bye-laws?


OK Ostell, spoken to Harbour Commissioners Office - "yes that land belongs to us". Sounded a little unsure but I recollect the signage at the car park made great play about it not being part of the local authority car parking and was run by the Harbour Commissioners

This post has been edited by visor: Fri, 7 Oct 2016 - 13:58
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nosferatu1001
post Fri, 7 Oct 2016 - 13:45
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Yes

If it is within the byelaws, it is not "relevant land" as far as the Protection of Freedoms Act 2012 is concerned. THis is the ONLY bit of legislation that lets them hold the Keeper liable - meaning if it isnt land that counts for POFA, they cannot hold the keeper liable.

In addition byelaws time out after 6 months - so the aim at all stages is to keep ping poing of letters going until it times out, then tell them to sling their hook. Oh, and the parking co CANNOT prosecute, ever, under byelaws. They lack any ability to do so, regalrdless of what they may say!
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visor
post Fri, 7 Oct 2016 - 14:05
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Interesting. Thank you Nosferatu.
When you say can't prosecute EVER, I take it you mean bring it before a County Court - or higher - as a 'debt' (as opposed to 'prosecute' as a criminal offence?)
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nosferatu1001
post Fri, 7 Oct 2016 - 14:22
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Prosecute is criminal , not civil

They have no ability to bring a case at Magistrates court under byelaws

As the byelaws do control parking, they will struggle to claim it is a civil contract law case.
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visor
post Fri, 7 Oct 2016 - 14:33
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Ah, I see what you mean now.
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visor
post Thu, 17 Nov 2016 - 15:16
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OK, NtK received yesterday (Nov 16). NtK dated Nov 10 BUT envelope postmarked clearly Nov14. (2nd class post)
Question is, does it fall outside the 56 day deadline for delivery? The date of issue of the PCN was Friday Sept 16. The 56 days (starting with day one as Saturday Sept 17) takes us to Nov 11. However, have i read somewhere on the site that day 1 starts on the second working day after the date of the issue of the PCN? In which case, day 56 is Tuesday November 15 but presumably still outside -just - the 56 day period because it was sent 2nd class and arrived on the the 16.
I'm assuming that it is the date the NtK was posted that counts as the date on the NtK can be whatever the PPC wants it to be.

However, perhaps the advice I suspect I'm about to get (and as previously advised by JLC, Ostell and Nosferatu) is that all the above is of no consequence because the the land is not relevant land for POFA to be applicable and therefore even if the NtK was delivered within the 56 days there is no requirement for the keeper to name the driver.

I can see no reference at all on the NtK to POFA applying. The PPC invites me to i) pay the unpaid parking charge or ii) "if you were not the driver of the vehicle, to notify us (in writing) of the of name the driver and service address for the driver and pass this notice on to them"
"Please be warned that if[bold] after the period of 28 days beginning with the day after that on which this notice is given (i)the amount of the unpaid Parking Charge specified in this notice has not been paid in full and (ii) we don not know both the name of the driver and a current address for service for the driver, we may pursue you for so much of that Parking Charge as remains unpaid, based on the fact that on the balance of probabilities (as the keeper has not provided alternative driver details) the keeper was indeed the driver"

So, does the Keeper simply reply that this is not relevant land and therefore decline to name the driver. or reply that the NtK was received outside the 56 day period and decline to name the driver. Or both?

All advice gratefully received
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farmerboy
post Thu, 17 Nov 2016 - 15:35
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QUOTE (visor @ Thu, 17 Nov 2016 - 16:16) *
So, does the Keeper simply reply that this is not relevant land and therefore decline to name the driver. or reply that the NtK was received outside the 56 day period and decline to name the driver. Or both?


Both. I would include any evidence that the registered keeper wasn't driving. You are not required to name the driver unless ordered to by the judge. That way should Bouncy Kev issue a claim which he may do you can apply for costs due to their unreasonable behaviour. He's been having mixed results in his recent days out to Truro Court.
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nosferatu1001
post Thu, 17 Nov 2016 - 16:05
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It must be *received* in time. There is no presumed delivered date for 2nd class mail that I am aware of, so Nov 14th is fine.
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ostell
post Thu, 17 Nov 2016 - 16:55
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The NTK was dated Nov 11 'cause they knew they had to get it in within 56 days but forgot that it is the date received that is the relevant date.
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visor
post Thu, 17 Nov 2016 - 17:00
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Thanks Farmerboy. The keeper can provide that evidence with letters from two others with whom the keeper was dining in a restaurant at the time of the alleged overstay while the driver went to move the car. (the keeper didn't even know where the car was parked). Would that suffice?
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ostell
post Thu, 17 Nov 2016 - 17:09
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You don't have to prove anything at all, it is up to AS. Just say that as this is not relevant land because of the existence of byelaws then they cannot hold you, the registered keeper, liable. Remind then that even if they tried to rely on POFA then the NTK arrived too late to comply with the requirements of keeper liability. State that you you were not driving and if the charge is not dropped then you can provide that evidence to any court. There can be no assumption that the keeper was driving and Elliot v Loake is not applicable.

This post has been edited by ostell: Thu, 17 Nov 2016 - 17:09
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visor
post Thu, 17 Nov 2016 - 17:11
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Many thanks Nosferatu and Ostell.
I'm assuming your advice is the same as Farmerboy's and stays the same as per your original advice on posts #3 and #7?
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ostell
post Thu, 17 Nov 2016 - 17:16
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Yes, you throw as much as you can at them but let them ponder on the evidence. If it gets to court the statements would have to be proper witness statements.
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visor
post Thu, 17 Nov 2016 - 17:23
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Ostell - that wouldn't be a problem, the witnesses have already stated that they are quite happy to provide sworn afffidavits.
But in reality, what are the prospects of the PPC pursuing this to court if this is not "relevant land" and they don't have the name of the driver?
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Jlc
post Thu, 17 Nov 2016 - 17:27
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The tactic seems lean towards issuing a claim as the process is daunting to some...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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