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

lj_dean

Thank you coupon_mad and everyone.

Still working on my wording for the signage.
I will add some more clarification on the late NTK point.

lj_dean

Oh dear just read on another thread that POPLA appeal based on late NTL was unsuccessful. They disregarded the POFA rules.

Coupon-mad

lj_dean wrote: »

Oh dear just read on another thread that POPLA appeal based on late NTL was unsuccessful. They disregarded the POFA rules.

Yes and there is now a complaints procedure that puts such decisions right, e.g. jimmy teabags case saw a wrong POPLA loss overturned after a formal complaint, to a win.

Do not be put off by POPLA errors, they can be overcome.

lj_dean

Interesting read on the planning for the signs. Talks of blending the signs into surroundings...

https://diogel.cyngor.gwynedd.gov.uk/swiftlg/imagetemp/43075-270796.pdf

Coupon-mad

Yep, which helps you which is why I linked the info.

lj_dean

Ok here goes my next effort...

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 car park 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 (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.
POFA deems delivery to be Tuesday 14th June (POFA Para 9 (6))
The PCN arrived in the post on Friday 17th June 2016.
Notice must be given within 14 day period = Monday 13th June (POFA Para 9 (5))
The NTK was delivered 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:

https://popla.co.uk/docs/default-source/def...15.pdf?sfvrsn=2

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, the signs at this site are on a green background and blend in with the surrounding tree cover.
The original planning application (Gwynedd Council ref C13/0187/39/HY) for signs at this site was reduced from 14 signs with a white background to 7 signs with a green background. The planning application was amended to reduce the number of signs and to make the signs blend in with the surroundings.
Excerpt from the above planning document:-
https://diogel.cyngor.gwynedd.gov.uk/swiftlg/apas/run/WCHDISPLAYMEDIA.showImage?theSeqNo=270796&theApnkey=43075&theModule=1
“6 Conclusions:
6.1 It is considered that the proposal in its amended form is an improvement and the number proposed is much more reasonable. Signs of dark green colour would blend in better in the area which is a rural in nature. It is not considered that the green signs would have a significant detrimental impact on the area’s visual amenities or the wider AONB.”
The photograph below shows how the green signs blend in with the surrounding tree foliage.

<photo inserted>

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

Coupon-mad

Date of alleged contravention was Sunday 29th May 2016.

Adding the above suggestion.

Actually, I am now thinking the NTK should have been served by Sunday 12th!

If you count 14 days beginning with th Monday as day one. I agree with nigelbb

Tuesday 14th June - Second working day & NTK deemed delivered but is 2 days late

Yes, 2 days late. Had to be served by the Sunday 12th, regardless of that day being a non-working day. So change this and I now suggest, add to it (as below) to stop POPLA being ridiculously stupid mixing in the BPA CoP 14 days again like has happened in a daft decision today:

NTK must be served within 14 day period = on or before Sun 12th June, regardless of that being a non-working day (POFA Para 9 (5))
The PCN arrived in the post on Friday 17th June 2016.

POPLA please note this 14 day period is ONLY stipulated in the POFA 2012 and has absolutely nothing whatsoever to do with any other 14 day period - e.g. there is a mere guideline 'target' about posting PCNs after getting DVLA data mentioned in the BPA Code of Practice. This was the subject of an erroneous POPLA decision this month (July 2016) by an Assessor with initials R.E. and that procedural error is the subject of a formal complaint already in the public domain. POPLA Assessor please consider ONLY the POFA for this appeal point for that is the applicable law and the NTK is as a matter of irrefutable fact, deemed delivered too late.

When PE contest the appeal and you can comment on the evidence, reiterate briefly the NTK dates issue and the pathetic 'seven green signs among trees' deliberately designed to 'blend in'(!) issue.

Guys_Dad

Change this "1) ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA"
to
"1) ParkingEye’s Notice to Keeper failed to meet the mandatory delivery timescales laid down by POFA" (Change also in your bullet points)

and change the next but one paragraph to

*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 must be given within 14 day period at the maximum = Monday 13th June (POFA Para 9 (5))

* Notice to Keeper is dated Friday 10th June 2016 which POFA deems delivery to be Tuesday 14th June (POFA Para 9 (6)) taking into account that weekends and bank holidays are not considered working days

*The PCN actually arrived in the post on Friday 17th June 2016, which suggests to me that the NtK may have been back dated or not posted till after the weekend

The NTK was delivered outside the 14 day maximum period allowed. As such, Keeper liability can not apply

The reason for adding the additional information is that we don't want the adjudicator - who will be relatively new - falling into bod1467's misreading of the section (easily done, so no offence bod).

Belt and braces.

nigelbb

[QUOTE=Guys_Dad;71014351

Date of contravention was Sunday 29th May 2016.
* Notice must be given within 14 day period at the maximum = Monday 13th June (POFA Para 9 (5))[/QUOTE]
This date is out by one day. Time for another worked example...

Day of 'crime' Sunday 29th May is Day 0
Monday 30th May is Day 1
Tuesday 31st May is Day 2
....
Sunday 12th June is Day 14
Monday 13th June is Day 15

The NTK must be delivered no later than Day 14.

Guys_Dad

nigelbb wrote: »

This date is out by one day. Time for another worked example...

Day of 'crime' Sunday 29th May is Day 0
Monday 30th May is Day 1
Tuesday 31st May is Day 2
....
Sunday 12th June is Day 14
Monday 13th June is Day 15

The NTK must be delivered no later than Day 14.

Even better! So NtK must be sent no later than the preceding Wednesday.