pcn to registered keeper

nosferatu1001

No, pofa couldn’t give two hoots about what the appeal outcome says. The ntd and NtK must match, that’s it.

Pdmum

so the ntd is the pcn and the ntk is the email received with the rejection appeal and the popla code?

Coupon-mad

No. If there was no windscreen PCN, and this was a postal PCN then it serves as the NTK.

Pdmum

still trying to get my head around this to write in full my popla appeal.
Reason on pcn is FAILURE to pay for duration of stay which is recorded as 2 .18mins.No definitives as to tariffs required. Could have been a 2 hour free park.
Whether paid or not (as clearly defined) some of the recorded duration could come into grounds for appeal.
Appeal rejected on the basis of Overstay to a PAID parking period. for the sake of arguement if there was 2 hours free (i have not been told either way) and 18 mins left, payment would have been for under 18 mins? Tariff would have been £x for 17 mins.
My point is i may have been tempted to pay the pcn for what looks like a potentially deliberate attempt to not pay the tariff and for fear of this increasing.
There is no doubt that i would have challenged the 2nd reason as it didnt add up. Most car parks charge in 30 mins multiples.Can this be challenged at POPLA as
failure to disclose the true facts.
By attempting to transfer keeper liability, i am contesting something totally different but have now gone beyond the timescale for appeal and in any case the transfer couldnt be different to the potential liability of the driver

KeithP

Pdmum wrote: »

...have now gone beyond the timescale for appeal...

Are you saying you missed the opportunity for the first appeal?
In which case, you have missed the opportunity to get a PoPLA code and appeal to PoPLA.

Or are you saying you have missed the opportunity to appeal to PoPLA?

Either way, you need to sit tight and brace yourself for debt collector's letters.

Post #4 of the NEWBIES FAQ sticky thread gives comprehensive guidance on how to deal with those.

Or have I completely misunderstood your rambling?

Redx

in post #1 they appear to have a popla code s, should be contructing a popla appeal based on post #3 of that NEWBIES sticky thread

I suggest the OP does this and posts the draft on here for critique

without seeing the PPC evidence and pics of the signage its hard to give advice

once a PPC uploads their evidence the OP will be able to make comments in the rebuttal to popla later on

Pdmum

Thank you, i agree my post does appear to ramble. Know what i mean but have difficulty putting it into words.
Will just get on with my appeal as best i can and post on here for fine tuning.
Thanks to everyone who have responded

Pdmum

Have finally managed to put something together. Wanted to include something about signage but not able to get to site at moment. Does this look ok without it. Any comments gratefully received.


POPLA code xxxxxx
Vehicle Registration xxxxxxx

I am the registered keeper of this vehicle
I do not drive this vehicle.

I received a Parking Charge Notice which was issued on xxxxxx
I appealed to Premier Park as registered keeper and received an email rejecting my appeal on xxxxxx
I wish to appeal the rejection on the following grounds:
1. Notice to keeper is non compliant with the Protection of Freedom Act 2012 and therefore no keeper liability can be established.
2. Premier Park have not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
3. Premier Park need to show that they have taken into account Grace periods as set out in the BPA CoP.
4. Images of alleged breach are unclear
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.Notice to Keeper is not fully compliant with the Protection of Freedom Act 2012 and therefore no keeper liability can be established.
A notice to keeper must fully comply with all of POFA’s strict requirements. Premier Park have failed to do this for a number of reasons:
Sch4 Para9 (2) (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates
Premier Park only specify entry and exit time which are not specific to the period of parking.
Sch 4 Para9 (2) (c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable.
Premier Parks Notice To Keeper states reason for PCN as Failure to Pay for the Duration of Stay. Duration is stated as 2:18.
Premier Park are now saying the reason for PCN as The vehicle overstayed the paid parking period.
PCN reason is misleading and not a true statement of fact if payment was in fact made for part if not all of the duration.
Sch4 Para9 (2) (e)
State that the creditor does not know both the name of the driver and a current address for service for the driver and 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.

Sch4 Para9 (2) (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.

Attention should be drawn to the Premier Park’s at best unclear and at worse incorrect PCN. In particular the last paragraph states:
“If within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”.

Within 29 days of what? It fails to mention the date the notice was given and misstates the timeline of keeper liability which is never 29 days from this date of the notice, which is the implication from their ambiguous and badly-drafted PCN.

2. Premier Park have 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. Premier Park need to show that they have taken into account Grace periods as set out in the BPA CoP.
BPA CoP: 13 Grace periods13.2 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.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Premier Park have indicated by email (not on the PCN) there was an overstay on a paid parking period, they have not confirmed what the overstay was, but need to show that the 2 grace periods have been taken into account, especially the period at the end which should be a minimum of 10 minutes.
Common sense is paramount in this instance and must allow for the driver on a cold winter night to sufficiently defrost their vehicle to allow a safe exit .
Section 92.4 of the BPA CoP states drivers ought to drive safely and act responsibly while using a private car park.
Rule 229 of the highway code also states in part:-
[FONT=&quot]Before you set off[/FONT]

• [FONT=&quot]you MUST be able to see, so clear all snow and ice from all your windows [/FONT]
• [FONT=&quot]you MUST ensure that lights are clean and number plates are clearly visible and legible [/FONT]
• [FONT=&quot]make sure the mirrors are clear and the windows are demisted thoroughly.[/FONT]

[FONT=&quot]To put pressure on a driver to leave before it is safe to do so in fear of an extortionate fine is both unreasonable and reckless behaviour.[/FONT]
[FONT=&quot]4.[/FONT][FONT=&quot] Images of alleged breach are unclear.[/FONT]
[FONT=&quot]Images of vehicle are unclear to the location. The number plate images do not match up to the vehicle images and are not true images of the numberplates for this vehicle.[/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot]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.[/FONT]

[FONT=&quot]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:[/FONT]

[FONT=&quot]“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”.[/FONT]

[FONT=&quot]Section 7.3 states:[/FONT]
[FONT=&quot]“The written authorisation must also set out:[/FONT]

[FONT=&quot]a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined[/FONT]

[FONT=&quot]b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation[/FONT]

[FONT=&quot]c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement[/FONT]

[FONT=&quot]d) who has the responsibility for putting up and maintaining signs[/FONT]

[FONT=&quot]e) the definition of the services provided by each party to the agreement.''[/FONT]

[FONT=&quot]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 un-redacted, 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.[/FONT]

[FONT=&quot]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.). If a redacted contract is produced it is unlikely to prove who signed it and when nor prove that authority was in place at the material date.[/FONT]
[FONT=&quot]Thank you for your time.[/FONT]

[FONT=&quot] .[/FONT]

Coupon-mad

Pdmum wrote: »

Received pcn as registered keeper. I am not the driver. Put in appeal using template letter which has been rejected. reason for rejection is different to reason shown on PCN. Does this breach POFA 4. If so what do i do now, I have been issued with a POPLA CODE.

Were you a passenger in the car?

Were any occupants disabled or suffering from any long term medical condition?

Pdmum

Thanks for your reply
No i was not in the car and none of the occupants are disabled or suffering from medical conditions.