Parking Charge Notice - Local Parking Security LTD

[aran69]

Hi Ostell,

Can you please advise what should be included in the appeal?
What do you refer to when you advise of the POFA failure?

I have attached some pictures of the signage. It refers to a fee for credit or debit card payments, Is this not illegal now?

1 - Barrier as you drive in
2 - Signage around the carpark
3 - Sign at exit barrier
4 - Help button at exit barrier that does not work

Appreciate any help,
Thanks

[aran69]

Hi Ostell,

Can you please advise what should be included in the appeal?
What do you refer to when you advise of the POFA failure?

I have attached some pictures of the signage. It refers to a fee for credit or debit card payments, Is this not illegal now?

1 - Barrier as you drive in
2 - Signage around the carpark
3 - Sign at exit barrier
4 - Help button at exit barrier that does not work

Appreciate any help,
Thanks

Hi Ostell,

Can you help?

Thanks

[ostell]

You appeal to POPLA, as the keeper, though you may have to tick "other" and then list the POFA failures. You can, of course mention everything else but the main one is that POFA fail so make that first in the liat. Again do not identify driver. Post up your appeal frist on here for critique before you send. I'm sure you can find other POPLA appeals around.

[aran69]

Hi Ostell,

I've found this one, would this suffice?

-------------------------

I, as registered keeper, wish to appeal as follows.

1. Keeper liability

2. No standing

3. Signage



1. Keeper liability

[IMG]file:///C:%5CUsers%5CAran%5CAppData%5CLocal%5CTemp%5Cmsoht mlclip1%5C01%5Cclip_image001.png[/IMG](a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8
(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 7&8 are required.

Right to claim unpaid parking charges from keeper of vehicle

4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;

(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—

(i)specified in the notice; and

(ii)no later than the time specified under paragraph (f);

(d)inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(e)identify the creditor and specify how and to whom payment may be made;

(f)specify the time when the notice is given and the date.

(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).

(4)The notice must be given—

(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and

(b)while the vehicle is stationary,

by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
(5)In sub-paragraph (2)(d) the reference to arrangements for the resolution of disputes or complaints includes—

(a)any procedures offered by the creditor for dealing informally with representations by the driver about the notice or any matter contained in it; and

(b)any arrangements under which disputes or complaints (however described) may be referred by the driver to independent adjudication or arbitration.

8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—

(i)specified in the notice to keeper, and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).

(4)The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

(6)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.

(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and

(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

The notice to keeper does not specify a period of parking, merely a time. It also fails to contain the information from 7 (f). The statutory warning in 8 (f) is incorrect. The creditor is not identified.

The notice keeper does not meet keeper liability statutory requirements and keeper liability cannot apply. There is no evidence as to the drivers identity so the appeal must be upheld.

2. No standing.

The operator does not own nor have any interest or assignment of title of the land in question. As such, I do not believe that the operator 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 the operator 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.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between the operator and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

The mandatory requirements of the BPA code of practice at paragraph 7 are nowhere to be found.

3. Signage

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BCP Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"

[aran69]

Hi ostell can you please offer any feedback on the appeal? Is there anything that needs to be added or removed?

Thanks

[ostell]

You've copied in most of POFA ! and the reason they have failed POFA has been lost.