Parking Eye Charge Notice

bod1467

No. They send the evidence pack AFTER you have appealed to POPLA.

Mahone1302

I'm in the process of writing my POPLA appeal and hopefully will be able to post it up here later on today. It's due by Monday, unfortunately today is the first chance I've had to do it.

Having reviewed the original PCN sent in the post, I note that not only does it not mention POFA 2012 at all, neither does it mention keeper liability, merely that

"As we do not know the driver's name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them."

Should I add that in to my appeal, that they did not inform me as RK that they intended to hold me liable? Or is it sufficient for them to address a letter to me, demanding payment, and for that to be considered as holding me liable as RK?

Mahone1302

First Draft:

---

POPLA Appeal

Dear POPLA

POPLA Ref. xxxx
ParkingEye PNC no. xxxx

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of a vehicle, in respect of an alleged breach of parking conditions at "Hughes, Redditch" on 24th April 2016.

I appeal to you that I am not liable for this parking charge on the basis of the below points:

1) ParkingEye's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.
2) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
3) The signage in the car park was inadequate.
4) The signage in the car park did not inform the driver that ParkingEye intended to hold the keeper liable for the charge should the driver not pay.


1) ParkingEye's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (ParkingEye) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 5, 6, 11, and 12. It is my belief that ParkingEye have failed to fulfill the conditions of paragraph 6; which states that ParkingEye must have provided myself as the registered keeper with a notice in accordance with paragraph 9. Paragraph 9 states:

The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.


The applicable section here is (b) as the Parking Charge Notice that I have received was delivered by post. Furthermore, paragraph 9(5) states:

The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

The Parking Charge Notice sent to myself as Registered Keeper was issued on 10/05/2016. This is 16 days after the event, 24/04/2016 and as such is 15 days after the 'specified period of parking ended,' and is therefore outside the 'relevant period' of 14 days. As this notice was issued one day after the 'relevant period' had ended, it would be impossible for the notice to have been delivered within the 'relevant period' as required under paragraph 9(4)(b). This means that ParkingEye have failed to act within the legislation set out in the Protection of Freedoms Act 2012 and as such can not pursue me, as the registered keeper, for any unpaid parking charges.

Furthermore the Parking Charge Notice from ParkingEye makes no reference to keeper liability, as is required under paragraph 9(2)(f), which states that the notice must:

warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

This is a clear and strict requirement under the relevant legislation that ParkingEye have not complied with and as such can not rely upon to hold me liable as keeper.


2) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that ParkingEye has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that ParkingEye merely holds a basic licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent to car park users. I therefore require ParkingEye to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits ParkingEye to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.


3) The signage in the car park was inadequate.

Since receiving this PCN I have visited the car park where the parking event allegedly occurred, and feel that the signage is not adequate. The British Parking Association CoP requires that terms and conditions on car parking signs must be clearly readable. The signs around the car park detailing the terms and conditions of parking are approximately 2 metres off the ground, which is above the average height for an adult and contain a large amount of writing in small lettering that is not easy to read.


4) The signage in the car park did not inform the driver that ParkingEye intended to hold the keeper liable for the charge should the driver not pay.

Since receiving this PCN I have visited the car park where the parking event allegedly occurred, and feel that the signage is not adequate. ParkingEye’s signs did not include as a core term any condition advising the driver that ParkingEye would reserve the right under POFA to hold the vehicle’s keeper liable for the parking charge should this not be paid by the driver.

In accordance with the rule of contra proferentem it is reasonable for the driver to conclude that ParkingEye was one of the many private parking companies that choose not to use the provisions of POFA. The car park signage simply failed notify the driver that ParkingEye intended to exercise its rights under POFA.

---

Point #2 borrowed from another recent appeal but appears relevant to my case too.

Coupon-mad

Mahone1302 wrote: »

I'm in the process of writing my POPLA appeal and hopefully will be able to post it up here later on today. It's due by Monday, unfortunately today is the first chance I've had to do it.

Having reviewed the original PCN sent in the post, I note that not only does it not mention POFA 2012 at all, neither does it mention keeper liability, merely that

"As we do not know the driver's name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them."

Then you have got them over a barrel! :T

A small % of PE PCNs do not have the POFA wording and that is when they know they are sending the PCN too late or the site comes under statutory control (e.g. byelaws at a Port, Airport, etc.).

Should I add that in to my appeal, that they did not inform me as RK that they intended to hold me liable? Or is it sufficient for them to address a letter to me, demanding payment, and for that to be considered as holding me liable as RK?

100% yes - but you have already covered it in point #1 of your appeal. They can't hold you liable as keeper at all with that PCN and they know it.

You will win this.



Point #2 is certainly relevant to all cases. I would just change this a bit by adding points a - e quoted from 7.3 of the CoP:

A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.

In addition, Section 7.3 of the CoP states:

“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.''

You should remove #4 because PE are not trying to hold you liable as keeper! They know it, you know it and POPLA should see it too and you should win on that point.

You could replace it with:


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

It is not disputed that the driver has not been identified. Even if POPLA (wrongly, because the law doesn't support this assumption against a keeper) believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where a non-POFA Notice (like this one) was served, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.

I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. No assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right. Henry Greenslade, the previous POPLA Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.

“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...has no legal obligation to name the driver.”

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.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed. A very late and non-POFA 'postal PCN' is absolutely fatal to a case where the driver's identity remains unknown.

Thus in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.

Mahone1302

POPLA appeal submitted yesterday afternoon. Changed as advised by Coupon-mad. Now for the waiting game!

Mahone1302

Had an email from POPLA today to say that they have received PE's case file, and if I have not received mine then to contact PE directly. How should I receive it from PE? Post, email? Apparently I have 7 days from today to add comments to their case file.

Seems a bit bizarre that I have to appeal through POPLA but PE don't have to provide me with their material through POPLA.

Mahone1302

POPLA appeal succesful!

Decision
Successful

Assessor Name
Carly Law

Assessor summary of operator case
The operator’s case is that the Parking Charge Notice (PCN) was issued as the appellant’s vehicle was on site for longer than the maximum time permitted.


Assessor summary of your case
The appellant has raised several grounds of appeal. These are as follows: • The appellant says that the operator’s PCN is not compliant with the Protection of Freedoms Act 2012. He says it has failed to meet several requirements of this. • He says that he believes the operator does not have the standing or the authority to form contracts with drivers in this particular car park. • The appellant says that the signage in the car park was inadequate. He says he has since visited the site and says that the terms and conditions are not clearly readable and the signs are too high up to be easily read. • He says that the operator has not shown that the individual it is pursuing is liable for the charge.


Assessor supporting rational for decision
I acknowledge the reason the operator has issued the Parking Charge Notice (PCN). The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly. In this instance, I am satisfied that the keeper of the vehicle is entitled to appeal the validity of this Parking Charge Notice (PCN), as the operator has issued a notice to the keeper’s address. 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.

Should that be the end of it now, or can I expect ParkingEye to still try their luck?

Redx

well done , please post it in the POPLA sticky thread at the top of the forum, with a link to this thread

under the BPA CoP , PE have to drop it now , plus if they tried court your popla win would sway the judge in your favour anyway , so they will move onto other baitfish