Followed newbie guide now STUCK at appeal reply :/

Oh dear! I didn't even realise that 0845 number, cheeky !!!!!!s!

Thanks so much again guys! I'll reply to the BPA concerning that issue, I'll also try and contact Trading Standards and let them know about it too.

This parking company is turning out to be really shady.
I'll wait til day 56 for a NTK and in the meantime draft my POPLA appeal.

Cheers! :j

Hey guys,

Today's the day my NTK should have arrived and it hasn't, so I'm going to submit my POPLA appeal this weekend. I've drafted one up using the Newbie guide, I added a couple more points of my own at the end regarding PTl's multiple breaches of the BPA code of conduct. I'm not sure if that's necessary though.

Also I didn't include the point about non prominent signs because these signs did include the sum of the parking charge. I do have a couple of pictures of them and from a distance they aren't readable so I'm not sure to have that as a point or not. My main point is the no NTK. Any feedback will be greatly appreciated! Cheers


POPLA Ref ...................
CPP Parking PC no .......................

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from Parking Ticketing Limited on the following points:

1. A compliant Notice To Keeper (NTK) was never served - no Keeper Liability can apply
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4. Failure to provide POPLA code, Breach of BPA CoP.
5. Breach of BPA CoP 18.7:

1. A compliant Notice To Keeper (NTK) was never served - no Keeper Liability can apply

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''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;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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

4. Failure to provide POPLA code, Breach of BPA CoP.

Upon submitting an appeal to Parking Ticketing Limited the following email was received by the keeper.

LINK

No POPLA code was provided and PTL asked for the driver to appeal instead which goes against BPA's Code of Practice. A complaint was made to the BPA which prompted Parking Ticketing Limited to send a POPLA code.

5. Breach of BPA CoP 18.7:

Upon Receiving a POPLA code from the operator their email contained the following paragraph which is also a breach of the BPA, code of practice.

"Make an appeal to POPLA-Independent Appeals Service within 28 days by visiting LINK and completing the appeal form online quoting POPLA appeal reference Xxxxxxxxxx. If you prefer to complete your appeal in writing please contact Parking Ticketing Ltd on 0845 689 45 45 to request the POPLA appeal forms."

"18.7 If you provide a telephone line to respond to complaints, challenges and appeals from motorists relating to the terms and conditions of parking they have entered into, these calls must not be charged above the basic rate. "
Also the 0845 number breaches Regulation 41 of the Consumer Contracts Regulations 2013.
LINK

Best regards,

Registered keeper

Hello again guys,

I submitted my POPLA appeal and just received a reply from the PCN. Looks like they are not giving up easily

Here is their reply, I won't attach the evidence but can describe it if needed. I'm really stuck now on how to respond as they said my main point dosen't matter "no notice to keep received"

Because...

"Please see evidence E2 where we have requested the drivers details from the keeper. The motorist then emailed the British parking association regarding us requesting the driver’s details. Please see evidence G2, this is an email from the British parking association stating, “they can appeal as the keeper and therefore, you should reject or accept the appeal.” Please see evidence E3, the rejection letter we sent to the keeper after the BPA requested us to issue a response. Within the response states, “as you have not supplied the drivers details after our request. We can only assume you have taken responsibility for the PCN.”

Here is their full response.

Dear Sir/Madam,

I wish to add to the attached notes that the appellant parked in a location that is a private land and all vehicles
parked at the location must comply with parking rules stated on the signage at the location.

As clearly stated by the signage at the location vehicles parked in this area must clearly display a valid
authorised PTL permit in the windscreen and be in the correct marked bay when parking at the location.

As clearly seen in the pictures see evidence F1-F4, provided by our traffic warden there was no permit in the
windscreen of the vehicle at the time when the parking charge was issued, therefore the warden acted
accordingly to the signage of the location, please see evidence B2, Signage is allocated throughout the location,
making it hard for motorists to miss the terms and conditions, please see evidence F1-F4.

Please see evidence G1, this is an example of a valid permit that needs to be clearly displayed in the windscreen
of the vehicle when parked at this location.
Please note, there was no need to issue a notice to keeper as the motorist had appealed the PCN within the 28
days, there was no need to contact the DVLA requesting the keepers’ details as he had provided them to us, E1.

Please see evidence E2 where we have requested the drivers details from the keeper. The motorist then emailed the British parking association regarding us requesting the driver’s details. Please see evidence G2, this is an email from the British parking association stating, “they can appeal as the keeper and therefore, you should reject or accept the appeal.” Please see evidence E3, the rejection letter we sent to the keeper after the BPA requested us to issue a response. Within the response states, “as you have not supplied the drivers details after our request. We can only assume you have taken responsibility for the PCN.” E4 is an updated response with a new telephone number for the motorist to call if they needed postal POPLA forms. E5, E6 and E7 are images the motorist has supplied alongside their appeal. To clarify, the BPA informed us we can accept the appeal from the keeper of the driver, E1 states the appellant is the keeper of the vehicle, so we responded as the appellant was not willing to provide the drivers details after our request. Therefore, the liability falls to the registered keeper.

Please see evidence B2, and F4, signage is located in close proximity to the appellants vehicle, signage does not have to be located in every bay, as long as it is visible and legible it is acceptable. Parking Ticketing L.T.D is audited and regulated by the BPA regarding signage and reaches the minimum requirements set by the BPA. Please also note evidence F5-F11 shows signage is throughout the location, making it very hard for motorists to miss the terms and conditions, note evidence F10 and F11, entrance signs warning motorists that the site has parking controls.

Please see evidence B2 where the restrictions and the consequences are clearly stated “Warning this land is
private property parking conditions apply 24 hours 7 days a week, failure to comply with the conditions below
will result in a £100 parking charge notice being reduced to £60 if paid within 14 days.” The motorist is warned
clearly that the land is private and if the restrictions are not met, they will be issued with a PCN of £100 being
reduced to £60 if it is paid within 14 days.

Also stated on B2, “vehicles parked in this area must park in the correct marked bay and clearly display a valid
P.T.L permit in the windscreen.” Please see evidence E6 and E7, the motorist sent these images in along with
their appeal, this shows the motorist is aware that the parking controls are in force, however, he was not clearly
displaying the permit clearly in the windscreen as required.

Also on B2 “this is a contractual notice and by parking here you agree to the terms and conditions”. As the
motorist has parked their vehicle and vacated, they have accepted the terms of parking. By not clearly displaying the permit in the windscreen, they have not complied with the restrictions and received the PCN.

Please see evidence B and B1, this is the contract P.T.L holds with the landowner / managing agent instructing
us to patrol the site and issue PCNs to vehicles that do not comply with the restrictions.

We are not able to consider mitigating circumstances. That an appellant feels he or she had good reason for
breaching the terms of parking is not a reason for which we can allow an appeal. When parking on private
land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission
to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of
parking that are clearly displayed on the signs.

Please see the contractual agreement with the land owner of the parking location (B) per signage of the
location “Parking at this location is a contractual notice and you agree with terms and conditions”. Please note
B1 is Terms and Conditions related to contract B. Please refer to Terms and Conditions B1 – 5.1 this point
explain that our contract is for minimum of 12 months from date of confirmation of patrols and the contract
shall continue thereafter for the same period if the client had not given the company 30 days’ notice of
cancellation before the anniversary date.

Kind regards, Appeals
Dpt.

Any help again would be greatly appreciated. Feeling a bit defeated atm.
Thanks

Sorry Keith!
Hope that's better