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  • FIRST POST
    • Jo W123
    • By Jo W123 5th Dec 17, 2:12 PM
    • 7Posts
    • 2Thanks
    Jo W123
    Newbie POPLA Appeal Advice
    • #1
    • 5th Dec 17, 2:12 PM
    Newbie POPLA Appeal Advice 5th Dec 17 at 2:12 PM
    Hi All,

    I know this has been posted many times and I’ve read through a lot of different threads but I am getting a little confused by all the wording so I’m after some help / advice if possible.
    I recently received a parking ticket because the driver left of the vehicle the premises for 10 minutes to make a phone call which apparently breached the terms and conditions as the vehicle remained on site. The car park itself was a retail car park with 2 hours free parking and after making the phone call the driver went to the shops which was the reason they were there and they were only on the site for 20 minutes in total (including the time to make the phone call) and have a receipt to prove all this. I have appealed and sent a copy of the receipt but this has been declined as the driver was apparently seen leaving the premises which is in contravention of the car parks terms and conditions of use. I have been given a POPLA code and have until today to pay the reduced fine, after that this will increase so I don’t know whether to pay the reduced amount or whether anyone thinks this would be worth appealing to POPLA over? If so could anyone help me with key points that might help my POPLA appeal? I have read various appeal threads which include ANPR cameras and signs not being visible but I don’t think I can use these arguments as there were no ANPR cameras involved. Any help would be much appreciated!

    Thanks in advance ��
    Last edited by Jo W123; Yesterday at 11:54 AM.
Page 1
    • Fruitcake
    • By Fruitcake 5th Dec 17, 2:17 PM
    • 40,521 Posts
    • 80,919 Thanks
    Fruitcake
    • #2
    • 5th Dec 17, 2:17 PM
    • #2
    • 5th Dec 17, 2:17 PM
    It is not a fine.

    Of course you shouldn't pay. The mugs discount is for mugs.

    Did you give away the driver's identity when you appealed? I hope not as that immediately throws away a valuable PoPLA appeal point.

    Appeal to PoPLA using all the template points available from the NEWBIES thread. Also state that there is no proof from the scammers that someone left the car park and you put the scammers to strict proof that there was. (There won't be any.)

    Post your draft here before submitting it to PoPLA.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Jo W123
    • By Jo W123 5th Dec 17, 2:28 PM
    • 7 Posts
    • 2 Thanks
    Jo W123
    • #3
    • 5th Dec 17, 2:28 PM
    • #3
    • 5th Dec 17, 2:28 PM
    Hi Fruitcake,

    Would it be possible to send me a link to the newbie thread? I have tried searching but there are so many I’m not sure which one to use!

    Many Thanks

    Jo
    Last edited by Jo W123; 05-12-2017 at 3:25 PM.
    • Umkomaas
    • By Umkomaas 5th Dec 17, 2:53 PM
    • 15,951 Posts
    • 24,742 Thanks
    Umkomaas
    • #4
    • 5th Dec 17, 2:53 PM
    • #4
    • 5th Dec 17, 2:53 PM
    Have you checked whether the Notice to Keeper is compliant with the Protection of Freedoms Act 2012. Do so - very painstakingly via the following links. Anything that is ‘near enough’ is not ‘good enough’. This is a real get out of jail card, so do get to understand it and examine whether there are chinks in their armour.

    http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

    http://www.parkingcowboys.co.uk/keeper-liability/

    In regard to a ‘leaving the site’ charge, this is extremely difficult for the PPC to win this argument. Short of filming the ‘transgression’ (which they won’t have done), there’s also difficulties for them in defining ‘the site’ and its boundaries, and if the parking goon saw the car occupants leaving the site, why didn’t he come across and tell them a charge would be levied if they did so. A dog’s breakfast of a case to make. Make sure you read this next link which was the last court case a PPC tried (over 5 years ago) on a ‘leaving the site’ charge - and none of them have ever tried it again. Do the math!

    http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231)

    Turning to developing your draft POPLA appeal - much of this is already done for you in the NEWBIES FAQ sticky, post #3 where there are a number of ready-written appeal sections for you to copy and paste, to form the backbone of your own appeal.

    Once you have your head clear about the issues I’ve listed above, let us see your first draft of your POPLA appeal for critique and fine tuning.
    Last edited by Umkomaas; 05-12-2017 at 3:06 PM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Redx
    • By Redx 5th Dec 17, 2:56 PM
    • 16,936 Posts
    • 21,065 Thanks
    Redx
    • #5
    • 5th Dec 17, 2:56 PM
    • #5
    • 5th Dec 17, 2:56 PM
    post #3 of the NEWBIES FAQ sticky thread

    it is located at the top of this forum , above your own thread , hard to miss
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Jo W123
    • By Jo W123 5th Dec 17, 3:04 PM
    • 7 Posts
    • 2 Thanks
    Jo W123
    • #6
    • 5th Dec 17, 3:04 PM
    • #6
    • 5th Dec 17, 3:04 PM
    Hi Umkomaas,

    Thanks for the advice, I will have a look through these threads tonight to try and draft my POPLA appeal and paste it on here tomorrow before I submit anything.

    Many Thanks

    Jo
    Last edited by Jo W123; 05-12-2017 at 3:08 PM.
    • Umkomaas
    • By Umkomaas 5th Dec 17, 3:13 PM
    • 15,951 Posts
    • 24,742 Thanks
    Umkomaas
    • #7
    • 5th Dec 17, 3:13 PM
    • #7
    • 5th Dec 17, 3:13 PM
    Hi Umkomaas,

    Thanks for the advice, I have changed my wording now!

    Many Thanks

    Jo
    Originally posted by Jo W123
    Well, I’ve edited my post as promised, as you are now aware of the issue, but your first post is a godsend to a PPC seeking out who the driver was.

    You do need to go through that line by line. Instead of ‘I’ use ‘the driver’ in the context of describing what happened at the parking event.

    I will have a look through these threads tonight to try and draft my POPLA appeal and paste it on here tomorrow before I submit anything.
    That statement is a bit worrying. Unless you have a brain the size of the moon, it must take you longer to get to understand all this stuff, and especially to dissect their NtK in the context of PoFA compliance. Please do not rush this (unless you’re hard up against your POPLA deadline), the better you understand it, the better the job will be in getting a sharp appeal together.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Jo W123
    • By Jo W123 5th Dec 17, 3:33 PM
    • 7 Posts
    • 2 Thanks
    Jo W123
    • #8
    • 5th Dec 17, 3:33 PM
    • #8
    • 5th Dec 17, 3:33 PM
    Sorry, I'm a bit new to all of this! I have until 19/12/17 to submit my POPLA appeal so I will spend a bit of time researching before I draft my appeal.

    Many Thanks

    Jo
    • Jo W123
    • By Jo W123 13th Dec 17, 1:52 PM
    • 7 Posts
    • 2 Thanks
    Jo W123
    • #9
    • 13th Dec 17, 1:52 PM
    • #9
    • 13th Dec 17, 1:52 PM
    Hi All,

    I have written a first draft for my POPLA appeal based on the different threads that I've read. I wasn't sure which argument would be better for point 1 so I have included two arguments. If anyone has a minute to have a read and let me know whether you think I need to make any changes or which argument for point 1 would be stronger before I submit my appeal I would be really grateful.

    Many Thanks

    Re: Parking Charge reference number: xxxxxx
    Vehicle registration: xxxxxxx
    POPLA reference number xxxxxx

    I am the registered keeper of the above vehicle and I wish to appeal the above parking charge from Total Parking Solutions (TPS) issued at xxxx on xxx, xxxx. I submit the points below to show that I am not liable for the parking charge.

    1) Non-compliant Notice to Keeper
    2) No evidence that the occupants of the car and/or driver left the site.
    3) No standing or authority to pursue charges nor form contracts with drivers.
    4) The signage was not adequate so there was no valid contract formed.


    1) 1. No Keeper Liability: (i) The Notice to Keeper is not compliant with the POFA 2012 and (ii) there was no transparent 'relevant contract' nor 'relevant obligation' capable of being breached, nor was any such risk accepted by a driver in the knowledge of £70 parking charge.

    TPS have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.

    (i) Non-compliant Notice to Keeper

    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 [...] (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in FULL 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.’

    TPS have sent a document which fails to repeat the information on the PCN and fails to state any 'period of parking' (which is a period of time in excess of any grace period - i.e. certainly more than ten minutes - and not merely a single 'time of issue' of a PCN which is not the same information in law). As TPS have evidently failed to serve a legally compliant ‘notice to keeper’ by failing to show an applicable and stated 'period of parking' they have consequently failed to meet the second condition for keeper liability.

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK which incorporates ALL the mandatory information set out in Schedule 4. These are prescribed requirements under statute and a 'period of parking' timeline of observation of the vehicle remaining stationary for longer than any BPA CoP grace period cannot be omitted and replaced with a 'time issued' by any stretch of the imagination.

    Nor is it allowable for an observation time spanning some minutes to merely appear on a windscreen PCN but then for that information to be inexplicably omitted from the NTK, because the second document MUST 'repeat the information' in the PCN.

    (ii) No transparent 'relevant contract' nor 'relevant obligation' capable of being breached - nor agreed to in the knowledge of £70 parking charge - by a driver.

    The so-called parking charge was given because the “vehicle owner / driver” were alleged to have “left the site”. However, the operator has provided no evidence to support this, nor that this is a contravention authorised by the landowner in any contract TPS hold.

    I therefore put TPS to strict proof of any/all occupants of the car “leaving the site” and evidence that a 'relevant obligation' was created not to leave the site. This would require a clear sign near the car, in legible and prominent font in very large letters suitable for outdoor signage, informing the driver of ALL of the following:

    (a) the boundary edges of the site (e.g. a map on the sign would be needed to pass the test of transparency of terms as set out in the CRA 2015)

    (b) a transparently stated obligation not to leave that 'site' as defined in signage

    (c) clear information as to whether this applies to passengers as well as a driver

    (d) clear and prominent information about any £70 charge in the same sort of prominent and 'very large lettering' as impressed the Judges in the Beavis case.
    All of the above were absent (unreadable or hidden in small print, if there at all).

    On the balance of probabilities, it is vanishingly unlikely in this age of people only just making ends meet, that a reasonably circumspect and careful driver would 'accept' £70 charge in this situation even if a contravention did occur (which is denied). It is also vanishingly unlikely and improbable that all of the occupants of the car left the area after parking and the evidence of this is conspicuous by its absence. Even if TPS have evidence of which occupant was driving or where that person went it is confidently submitted that the driver was not given 'adequate notice' of the alleged terms because no-one who drives this vehicle would ever knowingly agree to pay £70 to park for what seems to be a minute, which exceeds the annual cost of airport parking for two weeks and which is a hundred times the £1 fee the Council would charge to park on street at meters outside this location.

    Inadequate notice of the parking charge and any obligations/contract terms, indisputably fails Schedule 4. The keeper of this car cannot be liable and as that is me, the appellant, POPLA will be unable to find this PCN (and the NTK which followed) was properly given.



    1) 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.''

    2) The said parking charge was given because the “vehicle owner / driver” were alleged to have “left the site”. The operator has provided no evidence to support this, nor that this is a contravention authorised by the landowner. I therefore put TPS to strict proof of “leaving site” and to provide POPLA and myself with the evidence or cancel the charge.


    3) No standing or authority from landowner to pursue charges.

    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:


    • the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    • any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    • any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    • who has the responsibility for putting up and maintaining signs

    • the definition of the services provided by each party to the agreement.

    4) The car park signage was not compliant so there was no valid contract formed between TPS and the driver.

    Unreadable signage breaches section 18 in Appendix B of the BPA CoP. Section 18.2 requires operators to fully comply with the following on entrance signage:

    “18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

    This clearly requires that the entrance signs and the terms written on them must be in clear view of the driver without he/she having to turn away from the road ahead. The entrance to this car park has no signs that are in direct view of the driver as he/she approaches the car park entrance (see photo).


    Section 18.3 requires operators to fully comply with the following on specific parking-terms signage:

    “18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

    If a driver cannot read the sum of the parking charge (£70) before parking - because the font is too small and the sign too high to read from a driver's seat - then they cannot have agreed to it. The signs in this car park are placed in an elevated position on poles and, as such, are not sufficiently prominent that they can be seen by the occupants of a car. Indeed, the photo supplied by TPS themselves (see below) clearly shows the angle of elevation of the signs and the inadequate font size used to describe the details on it. The Operator's 'parking charges' were therefore not sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.


    This concludes my POPLA appeal. I therefore respectfully request that my appeal is upheld and the charge dismissed.

    Yours faithfully,
    • Umkomaas
    • By Umkomaas 13th Dec 17, 2:37 PM
    • 15,951 Posts
    • 24,742 Thanks
    Umkomaas
    You need to go back through it because your appeal sections don’t correlate with your bulletpoint list, you have near-duplicate sections (‘No Keeper Liability’ and ‘Leaving the Site’), and you have a key Section (‘The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge’) not in the bulletpoint list.

    Your Section numbering is confused - ‘No Keeper Liability’ and ‘The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge’ both are numbered 1).
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • bergkamp
    • By bergkamp 13th Dec 17, 4:19 PM
    • 99 Posts
    • 149 Thanks
    bergkamp
    Your first post still needs editing as Umkomaas's advice in post #7...
    • Jo W123
    • By Jo W123 14th Dec 17, 12:32 PM
    • 7 Posts
    • 2 Thanks
    Jo W123
    Hi All,

    Thank you for your help yesterday, I've now amended my first draft so it should hopefully read a little better now, 2nd draft below. Do you think that this is a strong enough argument to submit to POPLA or is there anything obvious that I have missed and need to add in?

    Many Thanks :-)

    Re: Parking Charge reference number: xxxxxx
    Vehicle registration: xxxxxxx
    POPLA reference number xxxxxx

    I am the registered keeper of the above vehicle and I wish to appeal the above parking charge from Total Parking Solutions (TPS) issued at xxxx on xxx, xxxx. I submit the points below to show that I am not liable for the parking charge.

    1) Non-compliant Notice to Keeper
    2) No evidence that the occupants of the car and/or driver left the site.
    3) The operator has not shown that the individual who it is pursuing is in fact the driver
    4) No standing or authority to pursue charges nor form contracts with drivers.
    5) The signage was not adequate so there was no valid contract formed.


    1) No Keeper Liability: The Notice to Keeper is not compliant with the POFA 2012.

    TPS have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.

    Non-compliant Notice to Keeper

    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 [...] (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in FULL accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    TPS have sent a document which fails to repeat the information on the PCN and fails to state any 'period of parking' (which is a period of time in excess of any grace period - i.e. certainly more than ten minutes - and not merely a single 'time of issue' of a PCN which is not the same information in law). As TPS have evidently failed to serve a legally compliant ‘notice to keeper’ by failing to show an applicable and stated 'period of parking' they have consequently failed to meet the second condition for keeper liability.

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK which incorporates ALL the mandatory information set out in Schedule 4. These are prescribed requirements under statute and a 'period of parking' timeline of observation of the vehicle remaining stationary for longer than any BPA CoP grace period cannot be omitted and replaced with a 'time issued' by any stretch of the imagination.

    Nor is it allowable for an observation time spanning some minutes to merely appear on a windscreen PCN but then for that information to be inexplicably omitted from the NTK, because the second document MUST 'repeat the information' in the PCN.

    2) No transparent 'relevant contract' nor 'relevant obligation' capable of being breached - nor agreed to in the knowledge of £70 parking charge - by a driver.

    There was no transparent 'relevant contract' nor 'relevant obligation' capable of being breached, nor was any such risk accepted by a driver in the knowledge of £70 parking charge.

    The so-called parking charge was given because the “vehicle owner / driver” were alleged to have “left the site”. However, the operator has provided no evidence to support this, nor that this is a contravention authorised by the landowner in any contract TPS hold.

    I therefore put TPS to strict proof of any/all occupants of the car “leaving the site” and evidence that a 'relevant obligation' was created not to leave the site. This would require a clear sign near the car, in legible and prominent font in very large letters suitable for outdoor signage, informing the driver of ALL of the following:

    (a) the boundary edges of the site (e.g. a map on the sign would be needed to pass the test of transparency of terms as set out in the CRA 2015)

    (b) a transparently stated obligation not to leave that 'site' as defined in signage

    (c) clear information as to whether this applies to passengers as well as a driver

    (d) clear and prominent information about any £70 charge in the same sort of prominent and 'very large lettering' as impressed the Judges in the Beavis case.

    All of the above were absent (unreadable or hidden in small print, if there at all).

    On the balance of probabilities, it is vanishingly unlikely in this age of people only just making ends meet, that a reasonably circumspect and careful driver would 'accept' £70 charge in this situation even if a contravention did occur (which is denied). It is also vanishingly unlikely and improbable that all of the occupants of the car left the area after parking and the evidence of this is conspicuous by its absence. Even if TPS have evidence of which occupant was driving or where that person went it is confidently submitted that the driver was not given 'adequate notice' of the alleged terms because no-one who drives this vehicle would ever knowingly agree to pay £70 to park for what seems to be a minute, which exceeds the annual cost of airport parking for two weeks and which is a hundred times the £1 fee the Council would charge to park on street at meters outside this location.

    Inadequate notice of the parking charge and any obligations/contract terms, indisputably fails Schedule 4. The keeper of this car cannot be liable and as that is me, the appellant, POPLA will be unable to find this PCN (and the NTK which followed) was properly given.


    3) 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.''


    4) No standing or authority from landowner to pursue charges.

    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:


    • the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    • any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    • any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    • who has the responsibility for putting up and maintaining signs

    • the definition of the services provided by each party to the agreement.

    5) The car park signage was not compliant so there was no valid contract formed between TPS and the driver.

    Unreadable signage breaches section 18 in Appendix B of the BPA CoP. Section 18.2 requires operators to fully comply with the following on entrance signage:

    “18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

    This clearly requires that the entrance signs and the terms written on them must be in clear view of the driver without he/she having to turn away from the road ahead. The entrance to this car park has no signs that are in direct view of the driver as he/she approaches the car park entrance (see photo).

    Section 18.3 requires operators to fully comply with the following on specific parking-terms signage:

    “18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

    If a driver cannot read the sum of the parking charge (£70) before parking - because the font is too small and the sign too high to read from a driver's seat - then they cannot have agreed to it. The signs in this car park are placed in an elevated position on poles and, as such, are not sufficiently prominent that they can be seen by the occupants of a car. Indeed, the photo supplied by TPS themselves (see below) clearly shows the angle of elevation of the signs and the inadequate font size used to describe the details on it. The Operator's 'parking charges' were therefore not sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

    This concludes my POPLA appeal. I therefore respectfully request that my appeal is upheld and the charge dismissed.

    Yours faithfully,
    Last edited by Jo W123; 14-12-2017 at 12:35 PM.
    • Coupon-mad
    • By Coupon-mad 14th Dec 17, 10:49 PM
    • 51,823 Posts
    • 65,458 Thanks
    Coupon-mad
    Looks good, but I am left wondering why paragraph 9(2)f of Schedule 4 has not been mentioned in the bit about the NTK not being compliant, seeing as 9(2)f is the warning about keeper liability and last time I saw one, TPS didn't describe the 28 day period properly.

    Take a look for yourself. Compare and contrast EXACT wording.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Quentin
    • By Quentin 14th Dec 17, 11:18 PM
    • 33,595 Posts
    • 17,476 Thanks
    Quentin
    You are looking to use POFA arguments. (You never answered about whether you revealed who was driving in your initial appeal)


    It is important not to reveal who the driver was, and you need to remove details of who was driving in your OP, unless you did when appealing!


    The ppcs monitor here and can use your posts against you
    Last edited by Quentin; 14-12-2017 at 11:22 PM.
    • Jo W123
    • By Jo W123 15th Dec 17, 12:31 PM
    • 7 Posts
    • 2 Thanks
    Jo W123
    Thank you, I have added in the paragraph 9(2)f of Schedule 4 argument in the section about the NTK not being compliant although looking at the parking charge which was issued it looks like the payment periods and parking charges have been described properly as far as I can see.

    Quentin, thanks for your comments, I completely missed the OP and have amended this now. I have not revealed who the driver was to TPS so hopefully this will help my POPLA appeal which I am about to submit now.

    Thank you for your help everyone! :-)
    • Ruby82
    • By Ruby82 15th Dec 17, 1:56 PM
    • 3 Posts
    • 0 Thanks
    Ruby82
    Hi
    Am new to this site
    Help would be appreciated.
    I've received a Parkwatch ticket at Deepdale Retail Park.
    Due to my passenger side wheels parked over the line. It wasnt a great amount of a distance over the line.
    Parkwatch rejected my appeal now i have been given a popla code to appeal.

    How would i appeal, should i appeal or not.
    Any help would be much appreciated.
    • Quentin
    • By Quentin 15th Dec 17, 2:56 PM
    • 33,595 Posts
    • 17,476 Thanks
    Quentin
    You need to first read the newbies FAQ thread near the top of the forum.

    Then if you want any more information start your own thread
    • Coupon-mad
    • By Coupon-mad 15th Dec 17, 4:31 PM
    • 51,823 Posts
    • 65,458 Thanks
    Coupon-mad
    Thank you, I have added in the paragraph 9(2)f of Schedule 4 argument in the section about the NTK not being compliant although looking at the parking charge which was issued it looks like the payment periods and parking charges have been described properly as far as I can see.
    Originally posted by Jo W123
    9(2)f isn't about payment periods or the parking charge.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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