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syd16
Hi, I received a PCN from Parking Charge Limited (a member of the BPA) for parking in a sports centre car park. I appealed on the following grounds:


I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle.

If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner.


I subsequently received a letter from PCL stating they reject my appeal:

Should I pay up or do you think it is worth appealing to POPLA?
DWMB2
Hard to offer specific advice without more info.

Upload a copy of the PCN you received. Was the driver a customer at the sports centre?
Jlc
QUOTE (syd16 @ Thu, 4 Nov 2021 - 16:03) *
Should I pay up or do you think it is worth appealing to POPLA?

It's that horrible template appeal we see every so often...

Can we see the original PCN?
syd16
Yes of course, see original PCN below.

The driver is not a member of the sports centre but was a customer on the day using their facilities.


syd16
Any thoughts anyone?
nosferatu1001
Anything on the back?

Have you read other threads, on constructing a popla appeal?
syd16
See below image of the back.

I have read some threads on Popla appreals and have come up with the following, appreciate any pointers here and whether this makes it a strong enough case. Could I include anything around their inability to identify the driver?


1. The amount of the charge is disproportionate to the loss incurred by PCL and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because PCL have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).


2. I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give PCL any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, PCL's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require PCL to demonstrate their legal ownership of the land to POPLA.


3. I contend that PCL are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


4. The BPA code of practice contains the following:

21 Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our
compliance team or our agents.

21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

21.5 If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).

I have had no evidence that PCL have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.


5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. PCL entities are probably not the same and I put PCL to strict proof that the company on the signs and paperwork is the same one that signed any landowner contract.

I need to see landowner authority for this Ltd company alone and not another firm, like 'PCL Services Ltd', who are a completely unrelated legal entity, whose company name is not on the signs or NTK and cannot be taken to be the same and are not legally the same.

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


DWMB2
QUOTE (syd16 @ Wed, 10 Nov 2021 - 22:31) *
1. The amount of the charge is disproportionate to the loss incurred by PCL and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because PCL have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).

Make sure you're looking at recent POPLA appeals - this point hasn't been a good one since 2015 (thanks to ParkingEye vs Beavis in the Supreme Court).
syd16
Thanks for the advice. I will remove that one. Does the rest look fine or should I add anything else?
The Rookie
You were told to start with a recent one, not just delete the bad bit, they have evolved since.

1. Is still a dead duck
2. Is meaningless, they don’t need one.
3. Is also meaningless.
4. Without evidence it’s, you’ve guessed it, meaningless.

1/ PoFA fails
2/ signage, is it ‘there to be seen’
3/ Signage does it create a contract
4/ Standing

That’s all you need (put properly).
syd16
OK I had a look around for some templates - wasn't really straightforward to understand which are recent and 'evolved' vs bad ones.

So if I go with your arguments:


1. PoFA fails

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 give notice of keeper liability as prescribed by section 9 (2) (f) 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 again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

2. signage, is it ‘there to be seen’
I don't think a strong argument can be made about the clarity of signage.

3. Signage does it create a contract
Can you point me to any arguments on that as I cannot seem to locate anything on here?

4. Standing
Is this in relation to whether PCL have any legal standing to charge? I think I mentioned that in 2. below. Again if you can give any pointers would appreciate it.
The Rookie
1. So which bits of PoFA have they failed on? You need to detail them

2. Refer to the BPA code of practice requirements and see if they failed to comply with any.

3. How about a photo of the sign? Arguments are case specific not generic!

4. You just require that PCL prove that they have standing.

Look in recent threads and find a suitable starting point, you need to understand your points!
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