Britannia NTK Non POPFA compliant

faisal93 · 7 October 2017 at 11:35AM

I'm in the process of writing a POPLA appeal for a Britannia PCN using the newbie thread and lots of excellent templates on this site - thanks for all those who've contributed.

Having read this site, I'll use the 4 grounds of appeal as per the newbie thread but one that I'm unsure of is:

[FONT=&quot]T[/FONT]his Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 due to the dates and the wording used.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’
It is my understanding that for an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified (as confirmed in the operator’s rejection of my appeal, dated 5th October 2017) and the Notice to Keeper fails to comply with section 9 of PoFA 2012 (no windscreen ticket was issued), specifically the following passage:

“2) The notice must – f) 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;”

The Notice to Keeper that was received (Parking Charge Number XXXX dated 1st September 2017) omits such information. I have included in my POPLA submission the two pages of the notice, which confirms that such text is absent.
Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9). As this operator has evidently failed to serve a compliant NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly elaborated.

It appears that Britannia have changed their wording on the PCN which means this grounds of appeal no longer applies. They state on the front page of the PCN:

"You are notified under paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is provided to pay the parking charge in full. As we do no know the the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them.

You are warned that if, after 28 days, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to revover any unpaid part of the parking charge from the registered keeper. The warning is given under paragraph 9(2)(f) of schedule 4 of the protection of freedoms act 2012 and is subject to our complying eith the applicable conditions of schedule 4 of that act."

Can I still use the above template or have Britannia got around this one now?

The_Deep · 7 October 2017 at 11:44AM

PPCs cannot "get around" POFA. It looks to me as though they are saying in effect that they are not using POFA but are making a "reasonable assumption" (their words), that you were the driver.

If that is the case, they will have to satisfy a judge that, OTBOP, you were. If they are relying on Elliott v Loake they have virtually no chance of doing so. Read some of these.

https://www.google.co.uk/search?sourceid=navclient&aq=&oq=elliott+v+&hl=en-GB&ie=UTF-8&rlz=1T4GUEA_en-GBGB707GB707&q=elliott+v+loake&gs_l=hp..0.0l5.0.0.0.7196...........0.Bri4nmefCp0&gws_rd=ssl