Help with Highview Parking Charge Notice

Carthesis

It wouldn't surprise me, as Highview PCNs haven't ever been compliant as far as I know. The last time I got one from them it certainly wasn't. And neither was their signage either.

carcuscrae

Ok assuming my assumptions on the non - compliant NTK as specified above, this is the POPLA appeal letter I intend to send. Can you confirm this is correct and i'm not appealing something I shouldn't please? Also is it worth mentioning about the signs or is the one I posted in post #4 compliant and therefore not worth adding?

POPLA Appeal Letter

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from Highview Parking.

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions.

Contrary to the requirements of Paragraph 9(2)(f), this NTK fails in the prescribed requirement - to:

''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...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;''

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. 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 keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“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 sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''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.''

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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

Umkomaas

You need a section on 'Signage' and one on 'ANPR accuracy'. I've skim-read back over your thread - if it was a 14 minute overstay, then you need a section covering 'Grace Periods' (remembering that ANPRs capture only your entry and exit times, NOT the period of parking (which is the critical factor).

Carthesis

Umkomaas wrote: »

You need a section on 'Signage' and one on 'ANPR accuracy'. I've skim-read back over your thread - if it was a 14 minute overstay, then you need a section covering 'Grace Periods' (remembering that ANPRs capture only your entry and exit times, NOT the period of parking (which is the critical factor).

You also need the section on distinguishing your case from the Beavis case - identify that the signage in that case was highly specific etc. etc. You may already have that in there hidden away that I didn't catch in my skim-read.

You should also highlight the position of the cameras and how they don't accurately record the length of parking, only the length of time spent beyond the cameras. In this case, might be worth mentioning that there may not be sufficient cameras to pick up the movement from one car parking area to another. This is similar to how a double-dip event occurs.

carcuscrae

Umkomaas wrote: »

You need a section on 'Signage' and one on 'ANPR accuracy'. I've skim-read back over your thread - if it was a 14 minute overstay, then you need a section covering 'Grace Periods' (remembering that ANPRs capture only your entry and exit times, NOT the period of parking (which is the critical factor).

Thanks for the reply.

I wasn't sure if I should put anything about the signage or not but if you are advising I should I can add the template for that too.

On the point of ANPR's, I can't find any wording for that and specifically 'Grace Periods'. Is there a template you can point me to please?

Many Thanks

carcuscrae

Carthesis wrote: »

You also need the section on distinguishing your case from the Beavis case - identify that the signage in that case was highly specific etc. etc. You may already have that in there hidden away that I didn't catch in my skim-read.

You should also highlight the position of the cameras and how they don't accurately record the length of parking, only the length of time spent beyond the cameras. In this case, might be worth mentioning that there may not be sufficient cameras to pick up the movement from one car parking area to another. This is similar to how a double-dip event occurs.

Thanks for the reply.

As I said in my reply to Umkomaas, I wasn't sure if I should mention signage or not but as you both think I should then i'll stick it in my reply.

Are you able to point me in the direction of any template/text for the argument about the camera's, i've looked but can't seem to find anything.

Many Thanks

Carthesis

I've no idea if there is any template POPLA appeal wording for it.

Grace Periods are covered in the BPA CoP, which can be found with a quick Google. It's fairly easy to read - it isn't written in legalese - but the upshot is that you are allowed 10 minutes from entry to parking, and a further 10 minutes from parking to exit, on top of the parking period. This is meant to be to give you time to drive around and find a space, read the signs, and actually physically park on entry; and to give you time to pull out of the space, drive to the exit, pay, etc. on exit.

I'd be astonished if there wasn't another POPLA appeal that covers it, as this is something that trips up PPCs on a regular basis. No doubt because they're too busy trying to grab your money.

As for the cameras, there won't be a template because it's specific to your situation. There should be something about double-dipping in an appeal somewhere, and there is a "Double-dip" thread I started linked in the **NEWBIES** thread. That should explain the issues, and some of the links there go into the issues with ANPR as a system. You just need to explain that the cameras are obviously not sufficiently numerous and/or correctly sited to pick up people moving from the "controlled" area of the car park to the "uncontrolled" areas, hence why they claim you've overstayed, when you didn't.

carcuscrae

Carthesis wrote: »

Grace Periods are covered in the BPA CoP, which can be found with a quick Google. It's fairly easy to read - it isn't written in legalese - but the upshot is that you are allowed 10 minutes from entry to parking, and a further 10 minutes from parking to exit, on top of the parking period. This is meant to be to give you time to drive around and find a space, read the signs, and actually physically park on entry; and to give you time to pull out of the space, drive to the exit, pay, etc. on exit.

I've had a quick look at Grace Periods in the BPA CoP but it only says there is a 10 minute grace period at the end of a stay therefore as the overstay was 14 mins i'm not sure this can be included. I can't see anything about a grace period before parking.

Clause 13.4 - This Clause will be extended to say ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes’.

Carthesis

Hmm. Thought it was in there, but might be getting confused with the IAS COP.

Either way it still needs to be included. I'm 100% certain there will be an appeal point for POPLA on this somewhere.

carcuscrae

Carthesis wrote: »

Hmm. Thought it was in there, but might be getting confused with the IAS COP.

Either way it still needs to be included. I'm 100% certain there will be an appeal point for POPLA on this somewhere.

How about I reword this and use it for the double dip / grace period points ?

the evidence you have provided to back up this allegation is in the form of two poorly taken photographs which neither image shows the vehicle in question definitively in the location you allege. As such I feel I must point out that "recorded stay" is not the same as "time parked", as it does not take into account time spent looking for a parking space nor queuing to exit. Nor does it account for any exits or subsequent re-entries to the alleged site within the times stated