POPLA Decisions

ZINXYX

How about the below please?

           FORMAL COMPLAINT.

FAO: POPLA Lead Adjudicator, John Gallagher.

RE: POPLA CODE   -ERROR OF FACT

I am writing to officially complain about the the assessor( John Gordon) in the above appeal case..

The assessor in the above appeal has made an error of fact.

The said contravention was in the PCN sent was  "Failed to make a valid payment"  on 20/02/2021.
In support of this claim the operator submitted evidence of pay meter transaction logs.
 However, this was for the 19/02/2021.

John Gordon has overlooked clear evidence that the operator sent in a machine log from the wrong day.
I highlighted this as number one  in my comments on the operator's evidence. 

I then  commented on the redacted contract as proof of landowner authority, as my second point.

The assessor has made reference to my comments on the redacted contract  and has strangely stated that the operator has submitted payments log for the said day.

I wish to state categorically that John Gordon has made an error of fact by clearly overlooking the evidence.

Thank you.

Coupon-mad

Change to complaining about the decision, not the man!

I am writing to officially complain about an erroneous decision by assessor, John Gordon, in the above appeal case..

I'd remove this, not needed and it flows well without:

I then  commented on the redacted contract as proof of landowner authority, as my second point.

ZINXYX

Thanks a lot. You have been so very helpful.
Complaint sent.

Umkomaas

The Assessor is Stephen Gordon (according to the decision you posted up first), not John Gordon. 

ZINXYX

Umkomaas said:

The Assessor is Stephen Gordon (according to the decision you posted up first), not John Gordon. 

Thanks, so livid. I must calm down.

deighton2002

Thanks to all those who help me by posting info here!  This ticket occurred when the driver helpfully took permit out to avoid its loss, while awaiting a tow-truck - the permit had been there daily for 8 months - the attendant unfortunately came on his rounds during that short time-frame.  Note scurrilous antics referred to by POPLA

Decision

Successful

Assessor Name

Stuart Lumsden

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) due to failing to clearly display a valid permit.

Assessor summary of your case

The appellant’s case is that the vehicle had broken down, but the driver is unknown. They state that the operator has not used POFA correctly to transfer liability to the keeper. The appellant has provided evidence to support the appeal.

Assessor supporting rational for decision

The appellant has not identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the registered keeper. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The appellant explains that the vehicle had broken down, but the driver is unknown. They state that the operator has not used POFA correctly to transfer liability to the keeper. I acknowledge the appellants grounds of appeal and appreciate they were not the driver at the time of the breach, as such, I need to establish if the operator has complied with the requirements of the Protections of Freedoms Act (POFA 2012). I have reviewed the PCN and note that the Notice to Driver (NTD) was issued on 5th February 2021, the appellant then appealed the PCN on 5th March 2021 and confirmed that they were not the driver. I have reviewed the operators evidence pack and it has not issued a Notice to Keeper (NTK). There is no wording on the NTD to advise that the keeper will be liable for the charge if the driver is unknown, as there is no NTK then the liability has not been transferred to the keeper. Schedule 4 of POFA sets out keeper liability and should stipulate that if after 28 days the name and address of the driver have not been provided then the operator has the right to hold the keeper liable for the charge. As the operator has failed to issue a NTK and failed to make this clear in the NTD, then it has failed to comply with the strict requirements of POFA. I note the appellants further comments in relation to the evidence pack and I acknowledge that the operator has provided further evidence which stipulates that the keeper confirmed they were the driver. As the appellant correctly points out, this is not in relation to the PCN in question as the appeal was made in June 2021 and relates to a different PCN. Quite why the operator decided to include this is baffling and misleading. As the operator has failed to comply with POFA and failed to transfer liability to the keeper, I cannot conclude that the PCN has been issued correctly. Accordingly, I must allow this appeal. I note the appellant has raised other points relating to the Parking Charge Notice, but as I have allowed the appeal it will have no bearing on the case.

Fruitcake

Nice one, and thanks for letting us know.

Umkomaas

Nice result. The POPLA reason is very clear and well written. It reinforces the forum strategy for appealing a NtD (ticket applied to windscreen by a PPC employee) around day 26. Distract the PPC into dealing directly with the appellant, missing out the vital component of issuing a NtK - therefore, no keeper liability, slam-dunk at POPLA. 

We need to remember this decision and quote it where relevant. 

Coupon-mad

I note the appellants further comments in relation to the evidence pack and I acknowledge that the operator has provided further evidence which stipulates that the keeper confirmed they were the driver. As the appellant correctly points out, this is not in relation to the PCN in question as the appeal was made in June 2021 and relates to a different PCN. Quite why the operator decided to include this is baffling and misleading.

Not often that POPLA Assessors actually suss that their paymasters (the PPCs) are being misleading.

A parking firm being misleading...who would have thought?

deighton2002

A parking firm being misleading...who would have thought?

Yes I did use the day 26 tactic.  Other sources had said not to do that and wait for a NTK or something, but I appealed at the last minute.

This is the 2nd ticket.  They uploaded the first appeal to cause confusion because I'd appealed as driver when I drove there to live and they wouldn't supply a permit due to COVID closing the offices.  Little did I realise that the global pandemic wouldn't be accepted as any part of a defence.  
In the second one the driver was a person aware of how obnoxious the parking company was and didn't want the permit to get lost, so he removed the permit when he'd ordered a tow truck, it seemed bad luck that it was checked at that time after 8 months of always having the permit there.