ANPR NTK...notice to be issued within 14 days??

Tun80

Thankyou Coupon-mad!!!

I'll be back as soon as they get in touch

Tun80

Hi guys.

Okay, got the expected rejection letter with a POPLA reference. Did some scouting around on the forum and came up with the letter below.

Bit long winded, and seems to be the points most are making...but I'd be grateful if anyone could point out any errors.

Thanks!!

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.

I contend that I am not liable for this parking charge on the basis of the below points:


1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met, as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper was issued on 10/06/2017, when the actual date of event is recorded as 24/04/2017, a difference of more than 6 WEEKS. Even if they had posted it on the same day that they describe as the ‘Date Issued’, it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).
This means that ParkingEye have failed to act in time for keeper liability to apply. Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with 4 complete paragraphs being omitted from the ‘PARKING CHARGE INFORMATION' section on the reverse side of the notice, and no reference to ‘keeper liability’ or the POFA.

2) The operator has not shown that the individual who it is pursuing is in fact 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, 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 – they will fail to show I can be liable because the driver was not me.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.

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.


4) The Operator has not shown evidence that the current ANPR system is reliable, accurate or maintained.
Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

This concludes my appeal.

Guys_Dad

I would put at point 1 the date of contravention and the date on the NtK.

Then I would state that the NtK failed to meet the POFA requirements to transfer liability to the Registered Keeper. State that you are making no admission as to who was driving.

Then add, "I quote below the relevant sections from POFA" and then put the legislation in italics.

Then invite the adjudicator to dismiss.

Then add I have further points, should you not accept point 1 and then add your other points.

By folowing that layout, it gives the assessor the get out of reading a load of irrelevant points as point 1 is a winner.

Redx

I would also add a bullet point menu after the opening introduction , before the main points , with the number abd title of each main point

you will see this in many other popla appeals on here , it allows an assessor to home in on the relevant stuff they may be interested in, as you only need to win on a single point , even if its the last point

make it easy for the assessor and they are more likely to agree your appeal

this one won and had some critique added, plus it also covered grace periods too

https://forums.moneysavingexpert.com/discussion/5655567

frankly, I will never understand why people dont do this simple task

Tun80

Guys, thank you very much for the extra info!!

Made amendments and submitted appeal this morning.

See how it goes...

Thanks to everyone for your help!!

GB7

TUN 80 - how did you get on? I'm looking to use your template letter

Fruitcake

GB7 wrote: »

TUN 80 - how did you get on? I'm looking to use your template letter

The OP has not been back since July this year, and not posted in the PoPLA Decisions thread.
Unfortunately many people don't come back and tell us how they got on. This may be the case here and we may never know the result.

If you need help you should start your own thread after of course reading the NEWBIES thread several times.

Tun80

Hi GB7,

Yes, it worked. They didn't tell me exactly why...just that they wouldn't be pursuing the case any further.

They chased me like crazy in between to bully me for the money though!!

If you're looking for more info and good advice...definitely do as Fruit case said and start a new thread.

Good luck!!

Tun80

Sorry...Fruitcake

Umkomaas

@GB7.

This appeal was almost certainly successful based on paragraph 1 where PE did not serve the NtK within the prescribed timescale to hold the keeper liable. PE knew they were stuffed as they had missed the deadline on thousands of similar tickets around the same time point. That’s why they did not contest this.

If your NtK was issued within the appropriate timescale then blindly copying and pasting this appeal won’t necessarily help you.

Give us more details in your own thread - not here - but after reading the NEWBIES FAQ sticky, post #1 which starts you off on the process.