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Tpc2000
Where I work I sometimes park in the private car park, discovery quay. When doing so I use someone else's permit. However on this occasion the permit fell off the dash board and was not on display. When I returned to my car I had a penalty notice issued from armtrac. I cannot get the charge cancelled as the owner does not know I use the permit. Should I appeal?

I am thinking I could appeal on unfair charge - and take a photo of permit so no loss has occurred.

Also the signage is poor at the entrance. I have photos. And there is no signage in the whole row I was in.

Should I write to them before the appeal time is up and should I tell the, I was the driver?

The attached photos are the entrance and the bays where I was parked.

Thanks in advance.
emanresu
How to approach this

1. Use the search box in the top right
2. Find relevant cases like this one: http://forums.pepipoo.com/index.php?showtopic=80102
3. Read
Tpc2000
I have read loads into how to appeal using the information on this site. It's fantastic! However I have not seen any template for the very first letter to send to start the appeal. Should I just admit to being the driver and say I want to appeal?
Jlc
QUOTE (Tpc2000 @ Fri, 1 Nov 2013 - 09:45) *
I have read loads into how to appeal using the information on this site. It's fantastic! However I have not seen any template for the very first letter to send to start the appeal. Should I just admit to being the driver and say I want to appeal?

Never admit to being the driver unless you absolutely must (there are a few times to do this).

The normal procedure is to wait for them to send you the first letter - they have to wait 28 days to do this and appeal as the keeper. (Assuming you are or know the registered keeper)

Bear in mind they almost always reject an appeal - they have no incentive to cancel as it's often their only source of income... It's the POPLA appeal that counts.
Tpc2000
Is it not true that you have 28 days to appeal. It's what the parking charge says.
SchoolRunMum
QUOTE (Tpc2000 @ Fri, 1 Nov 2013 - 16:24) *
Is it not true that you have 28 days to appeal. It's what the parking charge says.






That's how long the driver has. But you are not appealing as the driver.

http://forums.moneysavingexpert.com/showth....php?p=63547395

That link explains about waiting for the Notice to Keeper - or whatever drivel they eventually come up with as a first letter! And it shows on other links leading from it, a couple of simple examples of first challenges. You bide your time and wait because you want a non-compliant Notice to Keeper to add to your appeal grounds at POPLA later on. Don't throw that away by hastily appealing now.
Tpc2000
Ok thanks, will wait for them to send me the letter if this is the best way to pursue.
Tpc2000
I have now received a letter from armtrac for the registered keeper. It's the normal template letter stating a 'formal demand' and to make payment within 28 days. At this point should I send my appeal letter? I have looked at some other cases but as laws etc have changed I don't want to take the wrong action. Am I appealing that I'm not the driver or should I use a template and appeal against unfair costs etc. thanks for any help in advance!
ManxRed
Basically, you are appealing as the registered keeper but without releasing any information as to who the driver was. You're not specifically denying that you were the driver (although if you weren't then feel free to do so). The appeal would be worded along the lines of 'I am the registered keeper of this vehicle, and am appealing against the NtK referring to the Parking Charge ID XXXXXX., the driver did this, the driver did that, etc...'

So, not identifying the driver.

The reason for this, is that in order to pursue the registered keeper in lieu of pursuing the driver (which is what would normally have to happen), they need to fulfill the criteria laid down in Schedule 4 of the Protection of Freedoms Act 2012. One of those criteria (there are several) is that the NtK must be received by the Registered Keeper in the time period between 28 days and 56 days after the incident. Judging by the date of your first post, and your latest post, they may be outside of 56 days. Can you confirm?

If so, then they can no longer pursue you as the registered keeper, and must find out who was driving. You are under no legal obligation to name the driver.

You can see their problem at this point.

In any case, put together a soft appeal, as registered keeper, and naming the driver in the third person only (the driver parked here, the driver did this....etc), and base it on the following points:

1. The signage is insufficient to form a contract with the driver
2. You do not believe that Armtrac hold sufficient rights in the land to offer parking at that location, and need to see proof of this.
3. The sum sought is not representative of any loss to the landowner flowing from any breach of parking terms, and is therefore an unenforceable penalty.
4. Please note that as your Notice to Keeper was received outside of the 56 day time limit laid down in Schedule 4 of the Protection of Freedoms Act 2012, you can no longer invoke Registered Keeper liability for this charge.

Invite them to either cancel the parking charge, or reject your challenge and send you a POPLA code so that you may take this up with the independent appeals process. Only include point 4 if the NtK was received more than 56 calendar days after the ticket was issued.
Tpc2000
That's a great help. It's been way over the 56 days so will include point 4 too. Will write up a letter around those things and send off tomorrow. Will also post a copy on here.
farmerboy
I think Discovery Quay may come under Falmouth Harbour Port Authority therefore their byelaws state that the Operator (A$mtrac) can only pursue
the driver and not the RK. PoFA 2012 wont apply. I've been travelling for 16 hours from abroad so I could be completely wrong but its worth
looking into before you send your challenge tomorrow..

FB

SchoolRunMum
I was thinking along those lines too, farmerboy, so the OP can add more - that the land appears not to be 'relevant land' under POFA 2012 because it is covered by statutory byelaws instead - making it exempt from POFA2012 and with no 'keeper liability'. The area immediately around the harbour and some adjacent areas fall within the jurisdiction of the Falmouth Harbour Commissioners and over which their bye-laws extend.

But when I Googled the place I found this interesting article from December 2012, so do Armtrac even have a current landowner contract there?

http://www.thisiscornwall.co.uk/Parking-fi...l#axzz2pff9KQ4Z

''Terry Barnes, director of New Cornwall Development, which owns the site near Events Square, Falmouth ... told the West Briton the machine went down last week and was being fixed. But after checking his records, he confirmed that it had ended its contract with Armtrac on November 11 {2012}. He added: "It is out of order and Armtrac should not be ticketing people. Mr Barnes said he would take immediate action, asking Armtrac to "waive the fines" from the site, which is controversially earmarked for a new Premier Inn. He also said he would go to court with any motorists threatened with legal action as a result of non-payment of fines received since November 11.

and:

http://www.thisiscornwall.co.uk/Suspension...l#axzz2pff9KQ4Z

"In a statement the BPA said: "We investigate all enquiries we receive relating to members of our approved operator scheme (AOS), following an enquiry we are currently investigating Armtrac. We have a robust sanctions scheme in place and members who are found to have breached our code of practice will receive sanctions points which may lead to them being expelled from the AOS."

But that was a year ago! But then I remembered this:

http://www.thisiscornwall.co.uk/Stolen-par...l#axzz2pff9KQ4Z

So an email is needed to the DVLA and BPA, using the email addies in this MSE link:

http://forums.moneysavingexpert.com/showthread.php?t=4816822

...email addies near the bottom of that linky.

State that you are aware that Armtrac were being investigated over this site where the landowner is on public record as stating the contract was terminated in November 2012 - over a year ago - and yet you received a Notice to Keeper (Demand) this week which relates to an alleged incident at Discovery Quay more than 56 days ago. Although it seems Armtrac are not suggesting that 'keeper liability' applies {as per this thread I gather their documents don't mention it} you are concerned that your data has been given to a firm with apparently no landowner contract who were recently being investigated when an employee was arrested for fraud. Ask whether Armtrac are suspended and whether they are ticketing here without lawful authority.

Could be they are one complaint away from suspension - who knows? Give it your best shot as well as the letter of appeal going to Armtrac to hook that POPLA code sharpish.


Tpc2000
Thats great information. Will keep you posted.
Tpc2000
Reply from DVLA email:-

Dear Mr ..

Thank you for your recent email.


I can confirm that KBT Cornwall Limited t/asArmtrac Security Services & MBC Parking Services are not currently listed as being suspended from accessing data from the DVLA. If you believe that your data has been obtained from the DVLA fraudulently, please fully explain the circumstances and provide your vehicle registration number to allow the DVLA to investigate this matter.

 

Without this information, the DVLA would be unable to identify whether this company are acting without authority of the landowner.

 

Kind regards

 

David Dunford

Vehicle Data Customer Assurance and Compliance Practitioner

Data Sharing Team

Strategy and Policy Directorate | D16 | DVLA


Reply from BPA

Dear Mr ....
 

Many thanks for your note about your parking experience with Armtrac.

 

We would appreciate some additional information from you including copies of any correspondence that may have been exchanged between you and the operator.

 

We are not aware that the contract for Discovery Quay Falmouth has been terminated by the landowner but we consider this a potentially serious matter and will be investigating – we do need a copy of either your PCN or your Notice to Keeper to do this please.

 

Armtrac are not suspended at this current time.

 

We are not prepared to comment on the arrest of a former Armtrac employee for fraud as we understand this case remains ongoing.

 

I have copied in my Operations Manager as it is his team that will be handling any investigation.

 

We will be in contact again shortly.

 

Kind regards

 

Steve Clark

Head of Operational Services
Tpc2000

This is the letter I sent to Armtrac


Dear sir/madam

I have received a formal demand notice from yourselves for the driver of vehicle reg............ @...... on .............at Discovery Quay car park , Falmouth. I am the regestered keeper of the vehicle and am appealing against the notice to keeper ref - 00............., this is due to the following reasons:-

1. The signage is insufficient to form a contract with the driver

2. I do not believe that Armtrac hold sufficient rights to the land to offer parking at 'Discovery Quay' and I need to see proof of this.

3. The sum sought is not representative of any loss to the land owner flowing from any breach of parking terms and is therefore an unenforceable penalty

4. Please note that as your notice to keeper was received outside of the 56 day time limit laid down in scedule 4 of the protection of freedom act 2012, you can no longer invoke registered keeper liability for this charge

Please either cancel the parking charge or reject my challenge and send me a POPLA code so I can take this up with the independent appeals process.

Yours sincerely,

.........
Tpc2000
Today I received a letter back from Armtrac rejecting my appeal. They enclosed photos of my car and the signage with popla forms and BPA's code of practice. I have take a photo of their response to the 4 points I put in the letter to them. It seems they do not need to respond in 56 days. Any advise on the appeal to POPLA. Thanks
Jlc
For keeper 'liability' following a NtD the NtK has to be delivered within 56 days of the event. If they choose not to invoke the right to pursue the keeper under the PoFA (which is in addition to 'contract law') then they can only pursue the driver. Fact.
ManxRed
"Genuine Pre-Estimate of Costs."

Ha ha!! Whooooshhhh!
emanresu
QUOTE
Dear Armtrac

Thank you for the clarification of your status.

Since you are not claiming against the Registered Keeper under POFA why have you written to the Registered Keeper? The only conclusion I have come to is that you are deliberately flouting the BPA Code of Practice and will be making a complaint to them and the DVLA as such.

If you feel you need to be paid, please take this up with the driver whose name I decline to offer.

Love and kisses



Tpc2000
Any help on POPLA appeal? And if I lose the appeal does this mean I should pay the charge or ignore as I was not the driver ;-)
emanresu
Why would you lose? The have confirmed they are not using POFA but are harassing you as the RK. This is a breach of the code of practice. Even if you do lose, there is still no requirement to pay.

Look at the completed cases for how to appeal to POPLA. Signs, contract, GPEOL, no POFA.
Tpc2000
Thanks for great advice so far.....
I am in the middle of writing my popla appeal but I am wondering if I should mention the parking permit that I use or not bother. I know my main case is that I am the registered keeper but not the driver so should I aim more at this and include other points used in other letters I've seen.
SchoolRunMum
How to win at POPLA

HTH and show us your draft if you are still in time - when is your code's 28 days up?
Tpc2000
This is my popla letter. Please let me know what you think. I am also waiting for a reply from Falmouth Harbour authority to see if their by laws are enforced here....

Dear Sir/Madam

POPLA CODE

I as the registered keeper of vehicle.........I have received a Parking Charge Notice from Armtrac Security Services requiring payment of a charge for £100 for the alleged parking at 'Discovery Quay Car Park' on the........

As the registered keeper, I would like to appeal this notice on the following grounds:

1. No breach of contract and no genuine pre-estimate of loss.

2. No contract with the landowner

3. Armtrac acting under Contract Law so can only persue driver

4. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
Armtrac Security Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I requested that Armtrac Security should send me a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Armtrac cannot lawfully include their operational day to day running costs (e.g. provision of signs and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

2. Contract with landowner
I have requested a copy of the contract between the landowner and Armtrac but this has not been received. The landowner was quoted in the West Briton on December 13th 2012 that he has no contract with Armtrac and advised drivers not to pay any charges issued. I believe Armtrac do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Armtrac has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Armtrac to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

3. Notice to Keeper is acting under contact law
The rejection Notice I have received, as the registered owner of the vehicle, states in rejection point number 4, that Armtrac are not acting under 'protection of freedoms act' but under contract law. This means that they cannot pursue the registered keeper but need to peruse the driver for whom is not known.

4. Unclear and non-compliant signage, forming no contract with drivers.
Due to the position of the signage it is difficult to read as a driver enters the car park. It is positioned on the passenger side and is around a bend at the entrance (see attached) this can easily be missed by a driver entering the car park. Also the photos that Armtrac have sent of ,where the vehicle was allegedly parked, have no signage at all. I contend that the signs and any core parking terms that Armtrac are relying upon were not position correctly for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in this car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Many regards



emanresu
Looks good to go but I would move signs to the top as if they are missing, there is no contract to argue about in the first place.
SchoolRunMum
QUOTE
I am also waiting for a reply from Falmouth Harbour authority to see if their by laws are enforced here....


Don't wait for an answer, just cite it in your appeal anyway and the burden shifts to Armtrac to disprove!! You haven't said when your POPLA code runs out yet either! (I gave you the link that includes the Parking Cowboys Code checker). Please tell us when you have to submit your POPLA appeal by.

- I would add to the signage paragraph that you require in Armtrac's evidence, a November 2013 map of the signs in that car park because POPLA will notice there are gaps where there are no signs.

- I would have paragraph that's headed up 'no keeper liability' and include the byelaws thing (not relevant land). And the fact (and admission by Armtrac) that the NTK was not properly given under POFA2012 and so there is no keeper liability on this issue either.
Tpc2000
Sorry for the long delay. My appeal runs out on the 24th February. I have re worded my letter and will post up later.
Tpc2000
This is the final letter that has been sent to POPLA. Even put in about the land owner being quoted that he didn't have a contract with Armtrac, Now awaiting response.





Dear Sir/Madam

POPLA CODE ...............

I as the registered keeper of vehicle ?............I have received a Parking Charge Notice from Armtrac Security Services requiring payment of a charge for £100 for the alleged parking at 'Discovery Quay Car Park' Falmouth on the..... of .....2013.

As the registered keeper, I would like to appeal this notice on the following grounds:

1. No breach of contract and no genuine pre-estimate of loss.

2. No contract with the landowner

3. Notice to Keeper acting under Contract Law.

4. Unclear and non-compliant signage, forming no contract with drivers.

5. NO KEEPER LIABILITY

To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
Armtrac Security Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I requested that Armtrac Security should send me a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Armtrac cannot lawfully include their operational day to day running costs (e.g. provision of signs and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

2. Contract with landowner
I have requested a copy of the contract between the landowner and Armtrac but this has not been received. The landowner was quoted in the West Briton on December 13th 2012 that he has no contract with Armtrac and advised drivers not to pay any charges issued. I believe Armtrac do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Armtrac has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Armtrac to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

3. Notice to Keeper is acting under contact law
The rejection Notice I have received, as the registered owner of the vehicle, states in rejection point number 4, that Armtrac are not acting under 'protection of freedoms act' but under contract law. This means that they cannot pursue the registered keeper but need to pursue the driver for whom is not known.

4. Unclear and non-compliant signage, forming no contract with drivers.
Due to the position of the signage it is difficult to read as a driver enters the car park. It is positioned on the passenger side and is around a bend at the entrance (see attached) this can easily be missed by a driver entering the car park. I require evidence that Armtrac provide evidence of a November 2013 map of signage in the car park. Also the photos that Armtrac have sent of ,where the vehicle was allegedly parked, have no signage at all. I contend that the signs and any core parking terms that Armtrac are relying upon were not position correctly for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in this car park - and therefore I contend the elements of a contract were conspicuous by their absence

.

5. NO KEEPER LIABILITY
In the rejection letter that Armtrac sent to the registered keeper they admit the 'notice to keeper' was not properly issued under POFA 2013 so there is no keeper liability. Also the Discovery Quay car park is covered under the Falmouth Harbour by laws which means that Armtrac can only pursue the driver and that POFA 2013 will not apply.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Many regards






SchoolRunMum
That's fine, it will do the job!
Tpc2000
So today I received an email to say my popla appeal has been won!!!
Thanks to the fantastic information on this site and the brilliant people that post replies.
I would like to thank you all!

Would advise anyone with a similar case to use this process and my letters as it's proven.

Anyway below is the email.

cabbyman
Interesting wording from the assessor hinting that Armtrac almost made it over the hurdle. It would be interesting to see some of the experts analyse this decision.

Well done on your win, anyway. It still counts! :-)
Tpc2000
So today I received an email to say my popla appeal has been won!!!
Thanks to the fantastic information on this site and the brilliant people that post replies.
I would like to thank you all!

Would advise anyone with a similar case to use this process and my letters as it's proven.

Anyway below is the email.

Tpc2000
I read it differently... It seemed to me that the case was easily won and that the assessor only needed to look at one of my many appeal points. If that failed there were plenty more. ;-))
farmerboy
Ive got 2 appeals due next week from this bunch. Could you post up the assessors findings. I cant see the email. Tpc2000. Congrats on you win, by the way. Did Armtrac include in their
evidence their full page statement on GPEOL and if so what did the assessor have to say about it?
SailDog
Just a point of interest...

Surely any GPEOL is invalid if an overstay is involved for the simple reason that the GPEOL is pre-determined (as mentioned on the signage) and therefore cannot be related to time, which obviously is a continuous metric?

If we can get a case or two proven for this, then surely that is the only defence anyone overstaying by any length of time would need??

For example, my 10 minute overstay in a half empty car park can not - by any stretch of the imagination - be comparable to one of many hours when the car park is busy, although the charges are identical!



TPC... If you want to claim for costs from the parking company, let me know... I'm like a dog with a bone on this one now.
Tpc2000
Not sure where photos went but here's the email from popla again

Armtrac did send a 20 page case for there appeal with photos and letters but still lost
farmerboy
Thanks. It was the 'while the individual items listed may amount to GPEOL they have failed to provide an estimate of the amount lost under specific items referred to etc' that I wanted their opinion on. Armtrac have provided a list of items that could be GPeOL but cant justify the £100 penalty...sorry charge.
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