POPLA appeal help please - deadline 21.12.2017

Coupon-mad

Regarding the dates - the reason I'm not sure is because the PCN was issued within 14 days but I kept the envelope it came in which was stamped as being posted 2 days later. Still within the 14 days but using 2nd class post which means it could have arrived on the 14th day (a Saturday) or the 16th day (a Monday). I honestly cannot remember which day it arrived and didn't start looking at these forums until later on.

Saturday is not considered a working day, so you can validly say as fact, that it arrived on Monday. What day from the parking event is that, day 17 or something?

All the draft appeals that I saw on this point appeared to raise the fact that the PCN itself was issued after 14 days, whereas I am relying on date of delivery, which I haven't seen elsewhere so I wasn't sure whether this is arguable.

It is certainly arguable, supported by a scan or photo of that envelope, proving it was only sent second class. I would remove Saturdays and the Royal Mail completely from your argument, and try this:

"The Parking Charge Notice/NTK sent to me as registered keeper shows a purported ‘issue date’ of 07/11/2017, however I can prove that this Notice was in fact, not sent in time to have been served within the statutory 'relevant period' as required under paragraph 9(4)(b), and as such, POPLA will not be able to find as fact that this PCN was properly given.

I attach a copy of the envelope in which the PCN arrived is dated Thursday 09/11/2017, and shows that they chose to further delay it, by using 2nd class post. So this document that had ostensibly been printed (or backdated) to show 7/11/17, sat in TPS' offices for two days and was then only sent by 2nd class post, failing to comply with the BPA Code of Practice (CoP):

''21.7 You must post the parking charge notice to the keeper as soon as possible.''

This is not just a BPA CoP breach; such a delay is also fatal under the POFA 'keeper liability' rules. TPS has not met the mandatory POFA Schedule 4 paragraph 9 requirements:

(i) ''to send it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.''

(ii) ''to specify the date on which the notice is sent (where it is sent by post) or given (in any other case)''. This PCN specifies neither 9th November as the true date posted (which I have proved) nor does it specify Monday 13th November as the 'date given', which is of course, outside of the relevant period.

At paragraph 9.6, the POFA clarifies that the time runs from the actual date posted, and while first or second class post is not stipulated, it is clear that the burden lies with the operator to ensure the PCN is in fact delivered (i.e. that it arrives, not just is posted) within the relevant period:

(6) 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 date the PCN is deemed delivered is Monday 13th, which is the day it did indeed arrive. No doubt TPS hope POPLA do not notice this, or hope that I didn't keep the envelope, but I did and it is uploaded for POPLA to see as evidence.

So I have proved the 'date given' to the contrary of that suggested by the misleading 'issued' date on the PCN, and I have proved for POPLA's evidential purposes, that this PCN was not served in time to hold me liable as keeper.

I also suggest you check the wording of the PCN about 28/29 days and the registered keeper being liable (what does that paragraph say EXACTLY)?

LER9879

Many thanks

Coupon-mad wrote: »

I also suggest you check the wording of the PCN about 28/29 days and the registered keeper being liable (what does that paragraph say EXACTLY)?

The paragraph reads:

"If, after 28 days beginning with the day after that on which this Parking Charge Notice was served payment has not been made in full, or we have not been provided with the name and serviceable address for the driver/hirer, under Schedule 4 of the Protection of the Freedoms Act 2012, we do have the right (subject to meeting the requirements of the Act) to recover from the Registered Keeper the amount that remains outstanding. (Only applicable in England and Wales)"


Elsewhere it says:
"As we do not know both the name of the driver and a current address for service for the driver and having reasonable cause that the contravention occurred through a breach of the car park terms and conditions, the vehicle details were passed to the driver and Vehicle Licensing Agency (DVLA) and your details were requested as the Registered Keeper on the date of the event. Or the Registered Keeper has named you as the driver on the date of the event."

LER9879

Thank you for your assistance.
A few days ago a response had been received from the store that the complaint was made to confirming that the charge had been cancelled.
I received an email today from POPLA to confirm that my appeal was successful - this appears to be on the basis that the operator did not provide any evidence to POPLA at all - which I'm guessing is because they had already cancelled the charge via the store complaint? I'm not quite sure but either way I'm obviously happy with the result. Thank you all for your help.

Here is the POPLA decision, just in case anyone is interested:

I am unsure of the driver and will therefore consider Protection of Freedom Act 2012 (PoFA 2012). When parking on private land, it is the responsibility of the motorist to ensure they adhere to the terms and conditions of the car park. The operator has provided photographs of the terms and conditions, as displayed throughout the site, which states, “Important notice… 3 hours maximum stay… No return within 1 hour… ANPR (Automatic Number Plate Recognition) cameras may be in use on this car park. Please be aware you may receive a Parking Charge Notice (PCN) for a breach of any conditions of use. The conditions of use apply to all users. This car park is monitored 24 hours a day… By failing to comply with the above terms of use, you agree to pay a Parking Charge Notice of £70”. The parking operator has issued a Parking Charge Notice (PCN) as it alleges the motorist has exceeded the maximum stay. Further, the operator has provided photographs from its Automatic Number Plate Recognition (ANPR) cameras situated at the entrance and exit points. These captured the vehicle details of [REG] entering the site at [TIME] and exited the site at [TIME] on [DATE]. The appellant’s total duration of stay was three hours and 26 minutes. The parking operator has issued a PCN to the registered keeper of the vehicle after the DVLA returned the keeper details. I note that when the parking operator requested the details of the registered keeper of the vehicle, the DVLA returned the details of the appellant. As such, I believe that the parking operator was correct to issue the PCN to the registered keeper of the vehicle given the DVLA named her as the registered keeper at the time. The appellant has raised several grounds of appeal. These are as follows: • no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice; • keeper Liability not established - Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates; • the operator has not shown that the individual who it is pursuing is in fact liable for the charge; • the signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself; • ANPR Accuracy and Compliance; and • no Contract was entered into between the TPS and the driver or registered keeper. The appellant states that the parking operator has no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. As such, I must consider whether the operator has provided evidence in order to satisfy the requirements of Section 7 of the BPA Code of Practice. Section 7.1 of the BPA Code of Practice states that if the operator does “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).” On this occasion, the operator has failed to provide any evidence in response to this ground of appeal. As such, the operator has failed to demonstrate that it issued the Parking Charge Notice (PCN) correctly. Therefore, I do not need to consider the other grounds of appeal raised by the appellant. Therefore this appeal must be allowed.

Coupon-mad

On this occasion, the operator has failed to provide any evidence in response to this ground of appeal.

I think they did provide evidence, just not a landowner contract. You should have received an email from POPLA telling you a couple of weeks ago that the evidence was there on the POPLA portal to view, and asking for comments.

Anyway none of that matters now - well done, YOU WON!

claxtome

Congratulations on getting them off your back.

If you haven't already can you please add the appeal outcome to the POPLA Decision sticky thread.