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

lj_dean

Thank you all so much. I will make the amendments this evening.

Coupon-mad

Good.

Because POPLA are clueless about the POFA and sadly need spoon-feeding, it would be worth stating (as Guy's Dad says) that to be compliant, the PCN had to have been actually POSTED by Wednesday 8th June at the latest because the final working day after that, before the 14 days is up, was Friday 10th June. Clearly because this was the day the operator dated the PCN, they cannot possibly have complied with the POFA unless they delivered the PCN in person that very day, which they did not.

Umkomaas

I think I'd be inclined to build in nigelbb's day-by-day count of the dates, then even the most simple-minded assessor can do the 'join-the-dots'.

Coupon-mad

It is shocking that it has to come to that, but you are right, nigelbb's version of dates says it like it is for even the most clueless Assessor.

I'm still astonished at the sheer incompetence of the 'Assessor decision' we saw yesterday where POPLA conflated the POFA 14 day statutory period for service of a NTK with the COMPLETELY DIFFERENT THING of the 'advisory target' 14 days in the BPA CoP about posting PCNs after a PPC gets DVLA data. They should re-header their decisions: 'irrational(e)'

lj_dean

Sorry I disappeared for a while as my home IP address got banned form MSE forum! No idea why anywhere here is my latest attempt.



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 mandatory delivery timescales laid down by 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 mandatory delivery timescales laid down by 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. Day 0
Monday 30th May is Day 1
Tuesday 31st May is Day 2
Weds 1st June is Day 3
:
:
Sunday 12th June is Day 14
[FONT=&quot]Notice must be given within 14 day period at the maximum = Sunday 12th June (POFA Para 9 (5))[/FONT]
Notice to Keeper is dated Friday 10th June 2016.
POFA deems delivery to be Tuesday 14th June (POFA Para 9 (6)) [FONT=&quot]taking into account that weekends and bank holidays are not considered working days. [/FONT]In order for ParkingEye to be compliant with POFA, the PCN had to have been actually POSTED by Wednesday 8th June at the latest.
The PCN arrived in the post on Friday 17th June 2016.
The NTK was delivered outside the 14 day maximum period allowed. As such, Keeper liability cannot apply.
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.

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, 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:-


<link> “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 demonstrates how perfectly the green signs blend in with the surrounding tree foliage.


<image>


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

bod1467

Date of alleged contravention was Sunday 29th May 2016. Day 0

I'd be tempted to insert the bold word. After all, they're pursuing you as keeper so you wouldn't necessarily know if the contravention happened at all.

lj_dean

Submitted - watch this space!

lj_dean

Still not heard anything from Popla and the tracker says "In Progress - operator Information and evidence".

Today I received a letter from Parking Eye "Letter Before County Court Claim" stating that we have not appealed to POPLA.

How long do POPLA take? It's been 19 days.

Guys_Dad

lj_dean wrote: »

Still not heard anything from Popla and the tracker says "In Progress - operator Information and evidence".

Today I received a letter from Parking Eye "Letter Before County Court Claim" stating that we have not appealed to POPLA.

How long do POPLA take? It's been 19 days.

Complain about this to POPLA and the BPA. They are not allowed to do this and contact PE with evidence that POPLA are evaluating the appeal. Screen print of the "In Progress - operator Information and evidence". would help with PE.

Redx

5 to 8 weeks at popla

complain to the BPA with your popla reference and a copy of the LBCCC