DW sports/Soccerdome Wigan Popla appeal Parkingeye

familyof.4

Hi all,

Can you please check over my popla appeal?

Many thanks
Louise


Dear sir/madam,
As registered keeper, I deny any ownership of this parking charge notice and raise the following points to be considered.
1. I have had no evidence that ParkingEye have complied with the BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. The parking charge notice failed to meet the obligations of Schedule 4 of the POFA Act 2012, whereby it must have been received within the period of 14 days beginning with the day after that on which the specified period of parking ended. The date of event was 09/10/16, the parking charge notice was issued 22/10/16 and the letter did not reach my home until 28/10/16.

The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.

Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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."

2. I believe that it is not clear that this section of car park is indeed 2 different car parks. As you drive in from the road it appears that this is one car park, pay and display for all. Not one pay and display and one members only car park. I attach photograph A showing from the main road into the car park it does not suggest it is members only.

3. From the main road into the car park there is a small sign, located far above head height, which indicates that this is a car park covered by tariff payable at machine or by phone. I attach photograph B.

4. From the main car park into the members only area there a temporary notice which says member parking only, it is not a permanent sign and there is no evidence this was in place on the day of the event. The patrons only sign above it is very high up, small writing and means the driver would struggle to see it when driving in. I attach photograph C.

5. If the members only sign is to be relied upon I refer you to the DW Sports sign, shop, gym, swim, relax. DW Sports have a free membership points scheme for their shop, the signs do not indicate that the members only refer to the gym only. I attach photograph D.