PCN Admin Centre Notice to Keeper/Hirer

I got my POPLA response and have to respond to Key Parking Solutions evidence within 7 days. (Just realised I don't have that long as I'll be out of the country as of Monday )

"Key Parking Solutions Limited
Operator Case Summary
This appeal is opposed on the following grounds:

• The vehicle was parked in breach of the terms and conditions of the car park as detailed in the signage on site by displaying an expired pay and display payment and had therefore not paid for the entire period of parking;

• The appellant has not denied the contravention only focussed on aspects of insufficient signage and claims of misuse of data, the photographs clearly demonstrate the pay and display ticket had expired and the vehicle was still parked after the expiry of the grace period allowed, hence the contravention noted as “Vehicle timed out”;

• The appellant claims the signage was not clear however the driver did purchase a pay and display ticket and therefore would have read the signage which clearly indicates the daily tariff for the site which is very easy and straightforward as evidenced in the photographs submitted herewith;

• The Car Park Operator maintains the PCN was issued correctly and this appeal is therefore contested accordingly. Furthermore in response to the additional points raised by the appellant not previously raised in the original appeal:

1) Non-POFA Notice to Keeper The CPO is not relying on PoFA in this matter and has not claimed this in the Notice to Keeper. Based on the submissions and communications it is asserted on the balance of probabilities that the keeper/appellant was also the driver at the time of the contravention.

2) Key Parking Solutions Ltd.'s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording omitted. Point 1 repeated, - there has been no claim of relying on PoFA2012 in this matter

3) The operator has not shown that the individual who it is pursuing is in fact liable for the charge. Further to Points 1&2 on the balance of probabilities the keeper is pursued as the likely driver in this matter having considered her communications to various parties regarding this PCN.

4) No evidence of Landowner Authority The Landowner contract, site plans and photographs are included in evidence.

5) No Contract was entered into between the Key Parking Solutions Ltd. and the Driver or Registered keeper The signage is the offer, the opporunity to read said signage is the consideration and the act of parking the vehicle is the acceptance of said contract as established within the industr.

6) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself The signage is prominent, clear, legible and is approved by the BPA and meets all tests of reasonableness, The tariff is very straightforward and the required notification of the issue of a PCN for breach of the terms and conditions is evident and cleartly communicated.

7) Insufficient Grace Period The grace period is 10 minutes as required and detailed in the BPA Code of Practice"

How can they just presume I was the driver. I wasn't the driver and that should be enough to shut them up but apparently it isn't.

Umkomaas wrote: »

I agree with DoaM. I just don't read walls of text.

Yes I realise that. I have started a draft response but based on previous posts I wanted to post and see if anything was glaringly obvious to the more seasoned forum members.

My silver bullet should be that I wasn't the driver. How can they legally base their defense on probabilities? By presuming that I was the driver based on “probabilities” they denied me the right to appeal as keeper. I am the keeper of two vehicles. That reduces their probability that I was the driver by 50%. I was not the driver therefore as far as I'm concerned they cannot pursue me for a charge for which I am not liable.

I have started my draft response and I think that the fact that I was not the driver and the PCN was non-POFA compliant should be the main focus. I know it's repetitive but I am answering their appeal point by point. Please feel free to offer advice.

Key Parking Solutions seem to be basing their appeal for their right to pursue me as keeper of the vehicle on probabilities and not on compliance with the law.

Below is Key Parking Solutions appeal in red. My response to their appeal is in black.

Key Parking Solutions Limited
Operator Case Summary
This appeal is opposed on the following grounds:

• The vehicle was parked in breach of the terms and conditions of the car park as detailed in the signage on site by displaying an expired pay and display payment and had therefore not paid for the entire period of parking;

• The appellant has not denied the contravention only focussed on aspects of insufficient signage and claims of misuse of data, the photographs clearly demonstrate the pay and display ticket had expired and the vehicle was still parked after the expiry of the grace period allowed, hence the contravention noted as “Vehicle timed out”;

I could not possibly deny or confirm the alleged contravention as I was not the driver of the vehicle at the time of the alleged contravention.

• The appellant claims the signage was not clear however the driver did purchase a pay and display ticket and therefore would have read the signage which clearly indicates the daily tariff for the site which is very easy and straightforward as evidenced in the photographs submitted herewith;


• The Car Park Operator maintains the PCN was issued correctly and this appeal is therefore contested accordingly. Furthermore in response to the additional points raised by the appellant not previously raised in the original appeal:

Non-POFA Notice to Keeper The CPO is not relying on PoFA in this matter and has not claimed this in the Notice to Keeper. Based on the submissions and communications it is asserted on the balance of probabilities that the keeper/appellant was also the driver at the time of the contravention.

The Car Park Operator did not include POFA in their PCN notice to the keeper – in their words “The CPO is not relying on PoFA in this matter and has not claimed this in the Notice to Keeper.” A charge cannot be enforced against a keeper without a POFA-compliant NTK. Therefore they cannot pursue me, the keeper, for the charge. No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA.

The operator has not shown that the individual who it is pursuing is in fact liable for the charge. I am the keeper of two vehicles. That reduces their probability that I was the driver by 50%. I was NOT the driver therefore they cannot pursue me for a charge for which I am not liable.

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, 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, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK. 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 show that I am personally liable and will continually fail to show me to be liable because the driver was not me.

The vital matter of full compliance with the POFA 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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''


2) Key Parking Solutions Ltd.'s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording omitted. Point 1 repeated, - there has been no claim of relying on PoFA2012 in this matter

As stated previously, claiming that they are not relying on POFA does not make their attempt to pursue me as keeper any more valid. In their own words “The CPO is not relying on PoFA in this matter and has not claimed this in the Notice to Keeper.” So even if I was the driver – which I was not – they could not legally pursue me because the POFA wording was omitted from their PCN and no lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA.

3) The operator has not shown that the individual who it is pursuing is in fact liable for the charge. Further to Points 1&2 on the balance of probabilities the keeper is pursued as the likely driver in this matter having considered her communications to various parties regarding this PCN.

Again, despite their balance of probabilities I WAS NOT THE DRIVER and am therefore not liable for the charge. 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. If POFA 2012 Schedule 4 is not complied with, which by their own admission it wasn’t, then they cannot legally transfer the liability to me as keeper.

4) No evidence of Landowner Authority The Landowner contract, site plans and photographs are included in evidence.

5) No Contract was entered into between the Key Parking Solutions Ltd. and the Driver or Registered keeper The signage is the offer, the opporunity to read said signage is the consideration and the act of parking the vehicle is the acceptance of said contract as established within the industr.

6) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself The signage is prominent, clear, legible and is approved by the BPA and meets all tests of reasonableness, The tariff is very straightforward and the required notification of the issue of a PCN for breach of the terms and conditions is evident and cleartly communicated.

7) Insufficient Grace Period The grace period is 10 minutes as required and detailed in the BPA Code of Practice"

Coupon-mad wrote: »

Don't quote their 4, 5, 6, 7 if you aren't commenting on that bit.

And I recommend that comments on evidence are much briefer, or POPLA will think you are re-writing your appeal and introducing new evidence. Keep it much shorter, bullet points, no need to repeat their points for example, just comment, and avoid repetition.

Thank you all for your help. It is appreciated more than you know. This BS is keeping me awake at night.

I have re-written my response taking all of your comments on board.

I didn't bullet point it except for the last paragraph but if you think that I should then I will.

Key Parking Solutions seem to be basing their appeal for their right to pursue me as driver of the vehicle on probabilities and not on compliance with the law.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be). There has been no admission regarding who was driving.

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. 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. In order to pursue me for the charge as if I was the driver they would need to provide sufficient evidence to support their claim. They will never come up with this evidence as I WAS NOT THE DRIVER.

As far as transferring the charge to me as keeper, they would have needed to have sent me a POFA-compliant NTK within the time period specified by law. They failed on both of these requirements as by their own admission “The CPO is not relying on PoFA in this matter and has not claimed this in the Notice to Keeper.” Additionally, the NTK that I did receive was received well outside of the mandatory time frame specified by law.

It has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

With this in mind I am asking that you dismiss this claim by Key Parking Solutions on the basis that:

• I was not the driver at the time of the contravention and no evidence has been submitted to suggest otherwise.

• Key Parking solutions cannot legally transfer the charge to me as keeper as they failed (by their own admission) to issue me with a POFA-compliant Notice to Keeper.

Kind regards,