NTK letter arrived later than 15days but how do I prove it?

lj_dean

Thank you I'm not sure I have any other legal arguments but I will research some more POPLA claims.

Redx

you dont need to prove it was late, the PPC has to prove it was posted "in time" if you are disputing the fact by alleging it failed POFA2012

I can assure you there are several legal arguments you will be using at popla, the fact you dont know what they are proves you havent done enough research on popla appeals , either on here or over at pepipoo forums

only read recent 2016 popla appeals and nothing about NOT A GPEOL, certainly nothing older than jan 2016

when you read several recent 2016 popla appeals, you will notice the same legal arguments being used time and again

ps:- unless the letter is stamped with the posting day, you have no idea which date it was posted, other than its on or after the 10th and before the 17th

Coupon-mad

lj_dean wrote: »

Oh wait hang on!
9.6 says presumed to have been delivered on 2nd working day after the day on which it was posted.
10/6 was a Friday so POFA will assume PCN arrived Tues 14th June which is 16 days from the day after the alleged offence - am I right?

OK I may not have to prove posting date!

You are spot on and I was about to post that, having checked that 10th was a Friday I had done the sums! You can use that in your POPLA appeal, if you haven't given away the driver already. Did you make sure you only appealed as registered keeper though? NOT driver? If you appealed as driver you've thrown the POFA deadlines straight in the bin, if you followed the useless MSE article and put 'I parked the way I did because'...grrrr... terrible and outdated, hopeless MSE article.

And what's about six minutes? Do you mean the car was six minutes over paid for time (and another ten or so before the P&D ticket was bought)? Can't be JUST six minutes all told. Tell us the minutes involved before and after parking time.

Search the forum for 'ParkingEye grace period POPLA' which should find you some recent POPLA appeals that are relevant. ONLY read 2016 examples and stop reading and look at another, if you are finding in the result you are reading, a section about 'not a genuine pre-estimate of loss' because that's dead as a dodo in 2016.

You have a month, 28 days and a bit, to get this done. We will help once we see a draft POPLA appeal to comment on.

Umkomaas

One of PE's greatest vulnerabilities at POPLA has been 'no contract with landowner', so this is a must for your POPLA appeal and you need to do some searches on the forum, using search phrases such as 'ParkingEye POPLA', 'ParkingEye Contract' and such like.

Use the Forum Jump button (one near the top and one near bottom of this page) to get back to page one, and just above the sticky threads, on the right, is a heading along a line, next to forum tools, called 'Search this Forum'. Put your key word(s) in and change the default search from 'Show Threads' to 'Show Posts'.

HTH

lj_dean

Sorry not sure where the 6mins is coming from?? The car was captured entering at 17:32:49 and leaving at 17:59:04 total of 26mins.

Here is my draft built from a Jun16 POPLA appeal that won - so here's hoping....

Dear Popla

POPLA Ref. 666Xxxxx – ParkingEye Parking Charge Notice Ref. 4xxxxx

I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by ParkingEye in respect of an alleged breach of Parking Terms and Conditions at Abersoch Golf Club – Beach on 29th May 2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1) ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA.
2) ParkingEye does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
3) The car park signage was inadequate.
4) The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge.
5) In this case the driver did not 'park'. The driver of the vehicle which entered the above car park was NOT parking, but simply waiting to collect someone. The vehicle was never left. The driver was waiting for someone and no sign said 'No waiting'

1) ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA

In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a Notice to Keeper that fully complies with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why ParkingEye’s Notice to Keeper failed to do so.

• Contrary to the requirements of Sch.4 Para 9 (2) (a), the Notice to Keeper did not specify the period of parking to which the notice relates. It merely stated the times which the vehicle entered and exited the car park; these times do not equate to the start and end of the period of parking.
• Contrary to the requirements of Sch.4 Para 9 (4) (b), the Notice to Keeper was not delivered within the relevant period as defined in Sch.4 Para 9 (5).
The Date of Event listed on the PCN is Sunday 29th May 2016.
The date of issue of PCN is Friday 10th June 2016.
The PCN arrived in the post on Friday 17th June 2016.
In order to comply with Sch.4 Para 9(4) (b) the Notice to Keeper must be delivered within 14 days beginning with the day after that on which the specified period of parking ended, in this case by 12th June.
ParkingEye have not provided proof of posting the PCN on 10th June and in that event Para9 (6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.” Thus assumed to be delivered on Tuesday 14th June, 2 days outside the required date of 12th June.
• Contrary to the requirements of Sch.4 Para (2) (h), the Notice to Keeper did not specify how and to whom notification to the creditor may be made.

Consequently, ParkingEye has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA may allow my appeal.

Should ParkingEye try to suggest that there is any other method whereby a registered keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

<there is a link but I can't post it>

I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......

.......... However keeper information is obtained, 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”.

2) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park

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.).

3) ParkingEye’s signage was inadequate

Although ParkingEye is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, the signs in this particular car park were not sufficiently clear to give proper notice to the driver. The signs are positioned at a height which is difficult to see as the driver turns in, it is unclear that you are entering a zone where immediate cost is being incurred.
The signs are also coloured green and do not stand out in an area with ample tree cover.

Another problem with the sign is that the information regarding any contravention leading to a fine. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
There is no notice of recording. The sign does not say 'NO WAITING' or 'YOU ARE BEING RECORDED ON FILM'

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68: Requirement for Transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Paragraph 69: Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

4) The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge.


I have good reason to believe that 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

Based upon the above-detailed representations, I respectfully request that my appeal is allowed.

Yours faithfully

Redx

I am afraid that your definition of "parked" is not correct

a lot of people make the mistake of assuming that waiting for someone , or stopping with the engine running , or not leaving the vehicle somehow negates an invoice on the grounds that the vehicle is not "parked"

its parked when its stopped for a period of time , regardless of being occupied or not, or the engine running or not

PE monitor time on site , not parking time, so the rules on signage and the BPA CoP form the contract and there wont be a waiting time allowed other than the BPA CoP one which is possibly up to 10 minutes at the start and more than 10 minutes at the end, hence this pcn as it calculates to more than 21 minutes

check clause #13 , Grace Periods for the details

you need to remove incriminating evidence like that from your appeal, the appeal should major on legal arguments, not "what happened" and should not form part of a witness statement for the claimant

make them prove their case, dont hand it to them on a plate

ps:- DVLA ruling on "stopping"

https://forums.moneysavingexpert.com/discussion/5258973

Coupon-mad

The charge was disproportionate and not commercially justifiable. 6mins for £100.

^^^ that's where the six minutes cropped up, in your first post! But I can see you are now talking about 26 minutes over.

So this is Abersoch Golf club? I have seen PCNs and evidence packs from there when helping people before. I am glad you have the fact the PCN can only have been deemed under the applicable law, to arrive on day 16 (the Tuesday) at the earliest = no keeper liability, because these can be difficult to beat.

26 minutes is quite a long time not to be covered by a P&D ticket and I think from memory of photos I've seen, the signs are pretty big in the middle of that car park beside the P&D machines - but IIRC, useless around the edges, hidden in trees etc.

Can you get any photos on foot of the signs in the branches of overgrown trees around the edges? I seem to recall that some signs there are actually GREEN as well, to blend in (you couldn't make it up)!!

That WOULD be good evidence if you could get some damning pics of the edges around the car park with unreadable and obscured green signs in green foliage. As this is PE and this POPLA appeal is your only chance to get it quashed so PE do not sue you, I would take your time and get some damning photos first to put into your word document/PDF appeal. You have 28 days from the rejection letter.

Your sums are a day wrong here, the PCN had to reach you by Monday 13th in fact, to be POFA compliant (it still missed the date, so you still have that solid point of appeal):

In order to comply with Sch.4 Para 9(4) (b) the Notice to Keeper must be delivered within 14 days beginning with the day after that on which the specified period of parking ended, in this case by [STRIKE]12th[/STRIKE] 13th June.

Re the no keeper liability point I would remove all other minor criticisms of the PCN because POPLA just do not buy it! POPLA think PE PCNs are compliant with the POFA so your 'no keeper liability' point needs to focus the Assessor's mind ONLY on the dates.

And finally, in the part about not accepting a witness statement I would 'beef up' the last paragraph in that appeal point #2, with these words quoted from a POPLA decision:

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.

Guys_Dad

Why are you making such a meal of the failure to meet POFA deadlines? Keep it simple. Just state that the date of contravention was xx.xx.xx. The NTK is dated Friday xx.xx.xx and POFA deems delivery to be Tuesday xx.xx.xx which is outside the 14 day maximum period allowed. As such, Keeper liability can not apply. (Quote the relevant section number if you must but not the full text as the assessor should know it or can look it up themself)

Your submission on point 1 is liable to confuse, obscure your simple point and may cause the adjudicator to miss the point - if they don't fall asleep first.

If you have a cast iron winner, don't milk it just keep it as simple as possible so the adjudicator cant miss it.

lj_dean

Thank you I will revisit the draft later this evening.
Unfortunately I can't get any pictures, except for those on parking prankster, as the site is 150miles away.
I know the signs were missed as the carpark last time we visited was manned and was £5 per day with no charge in evenings. We used the carpark to pick up kids from the beach at the end of the day as we did in the past. No excuse just didn't notice the management of the parking had changed.

lj_dean

OK I've put out a request for photos of the signage that demonstrates that they blend in with the trees.

Here is my second draft...

Dear Popla

POPLA Ref. 666Xxxxx – ParkingEye Parking Charge Notice Ref. 4xxxxx

I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by ParkingEye in respect of an alleged breach of Parking Terms and Conditions at Abersoch Golf Club – Beach on 29th May 2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1) ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA.
2) ParkingEye does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
3) The car park signage was inadequate.
4) The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge.

1) ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA

In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a Notice to Keeper that fully complies with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why ParkingEye’s Notice to Keeper failed to do so.

• Contrary to the requirements of Sch.4 Para 9 (2) (a), the Notice to Keeper did not specify the period of parking to which the notice relates. It merely stated the times which the vehicle entered and exited the car park; these times do not equate to the start and end of the period of parking.
• Contrary to the requirements of Sch.4 Para 9 (4) (b), the Notice to Keeper was not delivered within the relevant period as defined in Sch.4 Para 9 (5).
Date of contravention was Sunday 29th May 2016.
Notice to Keeper is dated Friday 10th June 2016.
The PCN arrived in the post on Friday 17th June 2016.
POFA deems delivery to be Monday 14th June which is outside the 14 day maximum period allowed. As such, Keeper liability can not apply.

Consequently, ParkingEye has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA may allow my appeal.

Should ParkingEye try to suggest that there is any other method whereby a registered keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

<link>

I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......

.......... However keeper information is obtained, 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”.

2) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park

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.). [FONT=&quot]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. [/FONT]

3) ParkingEye’s signage was inadequate

Although ParkingEye is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, the signs in this particular car park were not sufficiently clear to give proper notice to the driver. The signs are positioned at a height which is difficult to see as the driver turns in, it is unclear that you are entering a zone where immediate cost is being incurred.
The signs are also coloured green and do not stand out in an area with ample tree cover.

Another problem with the sign is that the information regarding any contravention leading to a fine. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
There is no notice of recording. The sign does not say 'NO WAITING' or 'YOU ARE BEING RECORDED ON FILM'

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68: Requirement for Transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Paragraph 69: Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

4) The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge.
I have good reason to believe that 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

Based upon the above-detailed representations, I respectfully request that my appeal is allowed.

Yours faithfully