Dw parking fine parking eye

Coupon-mad

sassyolivia wrote: »

Please help. I have read the newbies thread etc and there is a thread on here exactly the same as what has happened to me. I really need helping in composing the letter of appeal to popla I just don't know what to include.

The templates in post #3 of the NEWBIES thread.

Surely we don't have to build the jigsaw as well as provide all the pieces in a row? Can't see anyone having time to do that.

sassyolivia

Coupon-mad wrote: »

The templates in post #3 of the NEWBIES thread.

Surely we don't have to build the jigsaw as well as provide all the pieces in a row? Can't see anyone having time to do that.

So at the minute I'm looking to include
The landowner
Inadequate signage ( this says patrons nothing to do with members ) not sure if that makes a difference.
Non profs 2012
Protection of freedom act 2012
7.3 BPa code of practice

Is there anything else that I need to include ?.

Many thanks.

Fruitcake

sassyolivia wrote: »

So at the minute I'm looking to include
The landowner
Inadequate signage ( this says patrons nothing to do with members ) not sure if that makes a difference.
Non profs 2012
Protection of freedom act 2012
7.3 BPa code of practice

Is there anything else that I need to include ?.

Many thanks.

Not all of that makes sense. You really need to do this on a computer. You may need to find an internet cafe or library to do some of the work.

You have to select the appeal points from post 3 of the NEWBIES that are relevant. We don't know what they are because we haven't seen the NTK or signage or anything else.
Inadequate signage, not the landowner, and no standing to issue charges are usually standard. You then need to work out what else is relevant.
Grace periods but only if they are relevant
Non POFA compliant NTK but only if it is relevant, etcetera.

Post your draft up here for the regulars to check before you submit it.

sassyolivia

Better?

Dear sir/madam,
As registered keeper, I deny any ownership of this parking charge notice and raise the following points to be considered.
1. The Operator failed to deliver a Notice to Keeper in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).


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. 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

3. Insufficient signage - no information about how the ANPR data would be used and no contract formed, unlike in the Beavis case.

I believe that their signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visible in said images.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand.

4. 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.

5. 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.

6. 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.

7. 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.

Ralph-y

while you await comments ....

if you can search the forum there are other people who have posted re this parking trap ......

I am sure some one did a winning appeal at popla .....

I will try to look it out when I return home ......

not that it will help at popla but there is no advertising consent for the signs ....... and Wigan planning do not care

Good luck

Ralph:cool:

sassyolivia

Ralph-y wrote: »

while you await comments ....

if you can search the forum there are other people who have posted re this parking trap ......

I am sure some one did a winning appeal at popla .....

I will try to look it out when I return home ......

not that it will help at popla but there is no advertising consent for the signs ....... and Wigan planning do not care

Good luck

Ralph:cool:

Thank you for your help, I have had a look at previous ones who have said they have won but been unable to find anything with regards to the template they used. Etc :j

Coupon-mad

4. 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.

I would change the above to 'as a driver enters the site' because your wording made it sounds as though you had admitted who was driving (''you'' just sounded wrong).

Was the PCN received by day 15, and does it have the POFA 2012 heading (keeper liability paragraph) on the back?

sassyolivia

Coupon-mad wrote: »

I would change the above to 'as a driver enters the site' because your wording made it sounds as though you had admitted who was driving (''you'' just sounded wrong).

Was the PCN received by day 15, and does it have the POFA 2012 heading (keeper liability paragraph) on the back?

Hi yes the letter was received within 15 days and yes it has the POFA 2012 on the back requesting info on driver if it was not the keeper.

Thank you for your help it's much appreciated

Coupon-mad

OK, so you can't use point #1.