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ParkingEye (again!) POPLA appeal help please!
Bayleaf13
Posts: 5 Forumite
Hi Everyone
I would appreciate somebody having a quick look at my POPLA appeal before I send it as I've been staring at it for so long I think I may be going slightly insane.
I believe I am lucky and have a 'golden ticket' but would be grateful if someone could check dates and that there are no stupid cut-and-paste errors. (I have used a similar appeal from MSE last week). I have applied to DVLA to find out when information was requested but no response as yet and I now only have 2 weeks left to send POPLA appeal and hopefully won't need that information anyway.
Quick summary:
1. NtK delivered after 14 day period (APNR only, no windscreen ticket)
2. No mention of PoFA in letter, nor 28 day period
Appeal made to parkingEye on these grounds as Keeper, driver not named, however ParkingEye appeal rejected 2 weeks ago
Many thanks for your kind assistance.
This is what I am hoping to add as a PDF:
Dear POPLA,
On the 06.10.2017, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”
As the registered keeper I wish to refute these charges on the following grounds:
1) As the registered keeper, I have no liability for this charge, as ParkingEye have not complied with Protection of Freedoms Act 2012.
2) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
1) As the registered keeper, I have no liability for this charge.
To support this point further the following areas of dispute are raised:
• The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons
• The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
• The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012.
• 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.
The Notice to Keeper is not compliant with Protection of Freedoms Act 2012
The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on 21st August 2017. The relevant period is therefore the 14 day period from 22nd August 2017 to 4th September 2017 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose, “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is Friday 6th October 2017 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Monday 9th October 2017, which is 49 days after the parking event (i.e. outside of the relevant period).
The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)
POFA 2012 requires that 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 sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
The notice must be given by—
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;
Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f).
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.''
2) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.
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
In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd."
Any help gratefully received!
I would appreciate somebody having a quick look at my POPLA appeal before I send it as I've been staring at it for so long I think I may be going slightly insane.
I believe I am lucky and have a 'golden ticket' but would be grateful if someone could check dates and that there are no stupid cut-and-paste errors. (I have used a similar appeal from MSE last week). I have applied to DVLA to find out when information was requested but no response as yet and I now only have 2 weeks left to send POPLA appeal and hopefully won't need that information anyway.
Quick summary:
1. NtK delivered after 14 day period (APNR only, no windscreen ticket)
2. No mention of PoFA in letter, nor 28 day period
Appeal made to parkingEye on these grounds as Keeper, driver not named, however ParkingEye appeal rejected 2 weeks ago
Many thanks for your kind assistance.
This is what I am hoping to add as a PDF:
Dear POPLA,
On the 06.10.2017, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”
As the registered keeper I wish to refute these charges on the following grounds:
1) As the registered keeper, I have no liability for this charge, as ParkingEye have not complied with Protection of Freedoms Act 2012.
2) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
1) As the registered keeper, I have no liability for this charge.
To support this point further the following areas of dispute are raised:
• The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons
• The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
• The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012.
• 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.
The Notice to Keeper is not compliant with Protection of Freedoms Act 2012
The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on 21st August 2017. The relevant period is therefore the 14 day period from 22nd August 2017 to 4th September 2017 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose, “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is Friday 6th October 2017 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Monday 9th October 2017, which is 49 days after the parking event (i.e. outside of the relevant period).
The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)
POFA 2012 requires that 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 sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
The notice must be given by—
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;
Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f).
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.''
2) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.
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
In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd."
Any help gratefully received!
0
Comments
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Looks ok to me - PE likely to withdraw once they see your appeal.
You need to add a ‘Signage’ point as we always recommend this as a must in any POPLA appeal.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Thanks Unkomaas. I'll do that and see how it goes. Fingers crossed...0
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Hi Everyone
Just a quick question: Do all private land parking operators have to comply with POFA 2012?
I believed I had a 'golden ticket' and that my appeal would be pretty straightforward.
However, Parkingeye have now uploaded their case documents to POPLA and state 'Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012. As such, the appellant’s comments regarding the Parking Charge Notice being issued incorrectly are not relevant in the case'.
Has anyone heard of this happening before?
Many thanks0 -
Hi Everyone
Just a quick question: Do all private land parking operators have to comply with POFA 2012?
I believed I had a 'golden ticket' and that my appeal would be pretty straightforward.
However, Parkingeye have now uploaded their case documents to POPLA and state 'Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012. As such, the appellant’s comments regarding the Parking Charge Notice being issued incorrectly are not relevant in the case'.
Has anyone heard of this happening before?
Many thanks
NO , it is not compulsory, but if they dont then they fail to hold the keeper liable, so weaken their case
the NEWBIES sticky thread does tell you this
so if they are not following POFA2012, then a keeper can use that as a reason for dismissal of the claim, and so your appeal should be upheld by POPLA on that basis alone, if worded correctly (the golden ticket"
there are plenty of examples of the correct popla wording for such cases
and yes it happens in every evidence pack they produce when they have failed POFA2012
in theory they should have chased the driver, where POFA2012 has no relevance
oh wait , they dont know who that was !!!!!!!!!!!!!!!!0 -
Has anyone heard of this happening before?
Yep, this is standard - it's ParkingEye's last roll of the dice in a desperate attempt to bamboozle you. They're admitting that they didn't comply with POFA but are trying to make out that this isn't important (even though it is).
When you send your (brief) comments back to POPLA, the first thing to do is to draw their attention to ParkingEye's admission in their evidence pack "Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012". POPLA need look no further for a reason to allow your "appeal".
POPLA only allow you seven days to submit comments - this includes the day that ParkingEye uploaded their evidence.0 -
You can always just nominate the driver to ParkingEye,I don’t understand why you went to such a massive effort of appealing to POPLA when someone else was driving your car! They should be dealing with this matter considering you were kind enough to let them use your car whilst getting a parking ticket!
Good luck with POPLA with the effort you have unfairly had to go to I am sure you will be successful.If you were not the driver write to the parking firm and tell them who was so they CANNOT hold you liable. The person who was driving the car is responsible so let them deal with it. Not you! Don’t let people with an agenda tell you otherwise.0 -
Ryandavis1959 wrote: »You can always just nominate the driver to ParkingEye,I don’t understand why you went to such a massive effort of appealing to POPLA when someone else was driving your car! They should be dealing with this matter considering you were kind enough to let them use your car whilst getting a parking ticket!
Good luck with POPLA with the effort you have unfairly had to go to I am sure you will be successful.
you are on a roll tonight with your half baked and stupid commentsSave a Rachael
buy a share in crapita0 -
PPCs dont make it hard to spot their stooges on here, do they
0 -
Wow! Thanks everyone for your help.0
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Update: I won! Thank you all for your help and Happy Christmas!0
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