POPLA Appeal- REBUTTAL DRAFT - PCN from Premier Park - 7 minutes!

toblerone13

So now its time to write my POPLA appeal!

toblerone13

I don't feel very hopeful.

Redx

read post #3 of the NEWBIES sticky thread and draft a popla appeal and post it on here , after comparing it to other 2017 popla appeals, especiallyl those that were successful , so read the last few pages of the POPLA DECISIONS sticky thread too, to get inspiration and to copy from any good ones (there are plenty of PREMIER PARK threads on here)

nosferatu1001

Oh get over it. REjection was 99% likely.
SHow us your draft. This is a forum to fight back agsint these scammers, take heart in how many are beaten every day!

catfunt

and remove your popla code from your post!!!!!

toblerone13

Appeal against Premier Park Ltd. Parking Charge Notice received

POPLA code:
Vehicle Registration:

On the 06/07/2017, I, the registered keeper of this vehicle, received a letter dated 04/07/2017 acting as a notice to the registered keeper (Appendix A). I appealed to Premier Park as the registered keeper and received an email denying my appeal dated 09/08/2017. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.
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. Inadequate and unclear signage
4. No period of grace given for the driver to read the additional signs within the car park.
5. Premier Park has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court.

1. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.

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 Premier Park’s Notice to Keeper failed to do so.
• Contrary to the requirements of Sch.4 Para 9 (2) (e), the Notice to Keeper did not state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.

Premier Park insinuates that they do not know the name or address of the driver through their request to the keeper to part with that information. ”If you were not the driver we ask you to supply the full name and current serviceable postal address of the driver so that we may address this request to them.” This however, is not a statement of lack of knowledge regarding the name and service address of the driver.
While Premier Park does ask the keeper to pay the unpaid charges and supply a name and address for the driver, they do not ask them to pass on the notice to the driver.

• Contrary to the requirements of Sch.4 Para 9 (2) (f) The notice to keeper does not

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

Furthermore, the BPA CoP (App. also states that "signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times." The sign at the entrance to this car park is small and only the 'welcome' and 'P' sign are visible from the road. Therefore, to be able to read the additional signs within the car park, the driver must enter the carpark.

The signs inside the car park are small and the information is not legible from a driver's seat as they are on the left hand side of the car park. To be able to read the terms, the driver would need to stop the car, get out and read the information.


So, in this case, the driver cannot possibly be fairly bound to be (somehow) already in breach of an alleged 'parking contract' that they didn't have knowledge even existed, having relied upon a visible 'P' and 'welcome' sign which - in the absence of other terms at the entrance - positively invites parking.

On the balance of probabilities the actual time stopped to read the sign, then decide NOT to stay or be held by any 'contract' was a mere 3 or 4 minutes. This sort of 'immediate fine' entrapment is what the BPA mandatory 'Grace Periods' exist to avoid. The seven minutes is perfectly reasonable, for someone, in the rain, to get out of the car, read the signs, decide not to park and drive off.

From the BPA CoP, version 6 2015.

13 Grace periods

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.


5. That Premier Park has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court.

I do not believe that Premier Park 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, Premier Park must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states: “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.''

I contend that Premier Park merely holds a basic licence to supply and maintain signs and to post out 'tickets' as a deterrent to car park users. I therefore require Premier Park to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner, in accordance with the BPA Code of Practice. This is required so that I may be satisfied that this contract permits Premier Park 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.).

toblerone13

Any advice would be much appreciated. I'd love to get it sent off as soon as possible. :huh:

Coupon-mad

I think your signage point and grace periods are good, and you could win this one.

toblerone13

I've clicked on 'I was not improperly parked' but then it asks me all these questions? Do I just say other or should I just have said other at the first step!?

Please can someone who has submitted a POPLA appeal help?

Redx

all explained in the NEWBIES sticky thread , by coupon mad herself

and she also explained it in detail recently in one of her replies

click on OTHER

add text saying "see attached appeal"

use the upload icon and choose your saved word doc or better still, saved pdf and upload it until the icon changes to a tiny bin icon

add any other evidence at this stage too, by uploading any pics and witness statements

submit it