PESS Parking Invoice via PCS Parked in no parking area

[Vivd23]

Hello 

And thank you for making this new forum and being so very helpful for me previously.

On behalf of a friend, was doing a moving job for a customer who resides in the building that enforces these restrictions. Sadly he did not request a virtual permit nor can he contact the customer again to request the landowner building to cancel the charge. Google maps isn't helpful to read the parking sign and the online portal does not show it. 

Evidence photos show the time of entry for the job. Then the photos later on, is when the driver was leaving the site but the vehicle drive motor failed to engage. The driver reversed to move out of the middle of the road for 3 minutes until the vehicle would select drive again. The brake lights were on the whole way, the vehicle was in active operation and no parking took place.

I based my appeal on the BPA 5 minute consideration period rules and the fact that the vehicle was still in operation, not parked. 

Below are their evidence photos and the letter. Please help. 












My attempt at an appeal.

I am appealing this notice as the Registered Keeper of the vehicle. This charge is legally unenforceable and must be cancelled immediately based on the following conclusive grounds:
    1. Photographic Evidence Proves the Vehicle Was Not "Parked": The operator's own photographic evidence refutes the claim that the vehicle was parked. In every single photograph spanning the 4-minute window (18:10 to 18:14), the vehicle's brake lights are clearly illuminated. This provides indisputable physical proof that the engine was running, a driver was at the controls with their foot on the brake, and the vehicle was never left unattended. Under established contract law, "parking" requires a degree of permanence. The vehicle was merely stationary in traffic.
    2. Frustration of Contract (Vehicle Malfunction & Traffic Management): As shown by the vehicle's position in your photos—which is angled away from the pavement rather than aligned to it—the van was not in a parking position. The vehicle suffered a sudden mechanical/electronic system malfunction and would not move forward. The driver was forced by emergency safety to reverse out of the path of oncoming traffic to allow the onboard computer system to reset.  A contract cannot be formed when an event is dictated by sudden mechanical failure and basic road safety.
    3. Permitted Loading/Unloading for a Lawful Resident: The vehicle is a commercial van engaged in a move-in job for a resident of the property. Tenants and their hired contractors hold an implied right to use service areas to drop off or collect goods. I have attached the job summary for the resident in your building.
    4. Breach of Mandatory BPA Consideration Period: Your ANPR cameras show entry at 17:41, but your specific photos alleging a contravention only span from 18:10 to 18:14. As a BPA Approved Operator, you are legally bound to provide a minimum 5-minute consideration period for a driver to enter a site and navigate it before a contract forms. Your evidence shows a stationary window of only three minutes. The vehicle departed before the consideration period expired, meaning no contract was ever entered into.
Please cancel this notice immediately.

[b789]

@Vivd23, I hope that is not the actual appeal sent. You have missed the biggest failure which is the fact that they are not relying on PoFA 2012 to hold the Keeper liable.

Ignoring all the other points you raise, which I will cover in another post later today, ONLY the driver can be liable and they have no idea who that may be, unless you tell them, which you are not legally obliged to. Only if their Notice to Keeper (NtK) was PoFA compliant, can they transfer liability from the unknown driver to the Keeper.

More later and please confirm whether that appeal has already been submitted.

[Vivd23]

Thanks for your response.

I didn't send that and thought I'd run it by you first. Yes please, looking forward to your response.

[b789]

Thank you @Vivd23 for clarifying that. Now you can submit an appeal, which will be rejected, because there is no money in it for them, but they will be obliged to give you a POPLA code where the secondary appeal can be made and it will cost them if they wish to contest that appeal.

You are dealing with a scummy firm of ex-clampers whose greed knows no bounds but you may as well treat them with the concept they deserve. So, I suggest you use the following appeal, which you must ONLY do as the Keeper. They have no idea who the driver is and you are not obliged to tell them. If using their appeals website, make sure you do NOT select any options that say that the appellant is the driver. Nothing that says "I did this or that", only "the driver did this or that":

I am the registered keeper and dispute this Parking Charge Notice.

Your Notice to Keeper (NtK) does not comply with Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). You have therefore failed to establish any statutory right to recover this charge from the keeper. PoFA exists precisely because, absent compliance with its strict conditions, liability incurred by an unidentified driver does not simply transfer to the registered keeper.

The driver has not been identified and nothing in this appeal identifies them.

For the avoidance of doubt, there is no lawful presumption that the registered keeper was the driver. Nor is there any basis for inviting an inference of driver identity merely because the keeper declines to identify another person. If you intend to try and rely upon Elliott v Loake, you would be well advised to read it first. It was a fact-specific criminal case involving affirmative evidence linking the defendant to the vehicle. It did not create some convenient private-parking presumption that "registered keeper = driver".

Parliament went to the trouble of enacting Schedule 4 PoFA to provide parking operators with a defined statutory route to keeper liability where the driver is not identified. You cannot simply ignore that statutory mechanism, fail to comply with it, and then attempt to achieve the same result by inventing a presumption that Parliament did not create.

Your position is therefore very simple:

either prove the identity of the driver, or establish keeper liability under Schedule 4 PoFA.

At present you can do neither.

Please therefore cancel the charge. If you genuinely believe you have discovered some alternative legal mechanism by which an unidentified driver's alleged contractual liability can be imposed upon a registered keeper despite non-compliance with Schedule 4, feel free to identify the statutory provision or binding authority upon which you rely. I will be interested to see it.

Otherwise, provide a POPLA code and spare me any template nonsense about Elliott v Loake, "reasonable assumptions", "balance of probabilities" or any supposed obligation upon a keeper to identify a driver. None of those things cures your failure to establish liability against me.