High view PCN

novangelion

Hi all,

After some advice in regards to a PCN (NtK) received by said company.

Keeper had appealed directly to them in which was rejected and received a PoPLA code. The basis of the appeal was a non- PoFA compliant (9-2b - 14 days after alleged event) Ntk.

Their reply:-
"The parking charge notice in question was issued without invoking the Protection of Freedoms Act.
In accordance with the DVLA and BPA rules, parking charge notices can be issued up to six months from the date of the parking contravention.
We apologise the notice was not received in a timely manner, and whilst we appreciate that this notice was issued later than the BPA AOS guidelines, such occurrences can occur due to a number of reasons, such as delays in receiving keeper information or a delay in data processing"

Is it right in thinking the above statement regarding "six months from date of contravention" cannot be used as these changes to BPA AOS code are effective 2 Jan 2018 and the event was 06/11/2017

"Clause 21.8 - While we have an expectation that operators will seek to use the POFA legislation, it is appreciated that there will be occasions where this might not be possible. If a non-POFA Notice to Keeper is being issued it must be sent out as soon as possible and no later than 7 months after the original parking event. "

Planning to submit a PoPLA appeal for the first PCN having read many forums post and using some of the relevant information. Maybe the draft can be posted here for someone to check ?

Thanks to anyone offering advice and support in advance.

-Edited due to error-

novangelion

This is what i plan to send as my appeal....any pointers are welcome

---

Dear POPLA,

On the 20/12/2017, Highview Parking Ltd. issued a parking charge notice highlighting that the above-mentioned vehicle had been recorded via their automatic number plate recognition system for "in excess of the maximum stay time"

As the registered keeper I wish to refute these charges on the following grounds:

1) Highview Parking Ltd. served a non- Protection of Freedoms Act (POFA) Parking Charge Notice (PCN) - no keeper liability can apply

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) The signs in this car park are not prominent, clear or legible from all parking spaces

4) ANPR Accuracy


1) Highview Parking Ltd. have knowing served a non- Protection of Freedoms Act (POFA) Parking Charge Notice (PCN) - no "keeper liability" can apply

Highview Parking Ltd. have served a Notice to Keeper (NTK) that is not compliant with the requirements of the Protection of Freedoms Act 2012; they are therefore unable to transfer liability for this alleged parking charge to the keeper.

In this non-POFA PCN, with nothing about POFA or a warning “keeper liability after 28 days” that could meet the mandatory requirements of 9(2)f of Schedule 4 as follows:-

9(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(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—

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

Highview Parking LTD have also failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9(4) and (9)5 of Schedule 4, which stipulates as mandatory, a set timeline and wording: -

The notice must be given by:

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

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

Because the Parking Charge Notice/NTK received was delivered by post, paragraph 9(5) states:

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The Parking Charge Notice for the 6/11/2017 sent to the Registered Keeper was produced in their offices showing a 'Date of Notice - 20/12/2017' which was already past the 14 days by which, under statute, it had to be in my hands/served.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was as they have stated in NTK.

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.

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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.''

This rest with the operators evidence but, as stated in the NtK "As we do not know the driver's name", they cannot provide.

3)The signs in this car park are not prominent, clear or legible from all parking spaces

Following receipt of the charge, I have personally visited the site in question and have found that there is no sign at the entrance to car park. The sign I eventually found was on a pole, facing the exit of the carpark, in-between parked cars.

BPA COP states:-

"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use."

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in, without breaking any law of the Road Traffic Act.

I believe the signs failed to properly and clearly warn/inform the driver, before parking, of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”

4) ANPR Accuracy

Highview Parking Ltd. are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Highview Parking Ltd. to present records as to planning consent, the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and time stamps of any ANPR images and that the relevant information regarding the use of ANPR equipment is clearly displayed in signage.

This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times – it’s vital that Highview Parking Ltd. produce evidence in response to these points. With the duration given, this could be a problem with the system used and thus a breach in the Data Protection Act of obtaining the keeper of vehicle details.

Summary

In the rejection to appeal email, it's stated "The parking charge notice in question was issued without invoking the Protection of Freedoms Act".
These points demonstrate the claim by Highview Parkin Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from Highview Parking Ltd.

Coupon-mad

4) ANPR Accuracy

Remove the above, it's pointless. Replace it with the 'no landowner authority' POPLA template. The keeper will win!

claxtome

Just to answer your opening post question:

Is it right in thinking the above statement regarding "six months from date of contravention" cannot be used as these changes to BPA AOS code are effective 2 Jan 2018 and the event was 06/11/2017

The BPA AOS code of practice relevant to your parking date is the only one that applies.

novangelion

Thanks for the input Coupon-mad. Having read the 'no land authority' to understand, i have adapted it in. Using the ANPR point was solely to be relevant to this case and add another point. Thanks again.

Thanks claxtome. I was thinking this was just a ploy to scare me into paying but wanted to be certain before i took to the PoPLA appeal.

Would photos of the lack of signage at the entrance and signs in question be a very good idea to add as evidence or is just stating that there aren't any enough as they would have to prove there are?

beamerguy

novangelion wrote: »

Would photos of the lack of signage at the entrance and signs in question be a very good idea to add as evidence or is just stating that there aren't any enough as they would have to prove there are?

Photos are a must to show POPLA, EVERTHING
for your defence

MickyMouseMilliMe

claxtome wrote: »

Just to answer your opening post question:


The BPA AOS code of practice relevant to your parking date is the only one that applies.

Hi OP, sorry to hijack your post but I have exactly the same situation. But I need a bit of clarification please from Claxtome - Can you please clarify this? Is the operator's response about 6 months to sent to NTK is valid or not? I have received exactly the same rejection letter as the OP's, even with the same exact wording. My incidence was dated 26/08/2017, and the first NTK was issued on 27/10/2017.

While Highview is trying to blame DVLA for delaying the process by saying "such occurrences can occur due to a number of reasons, such as delays in receiving keeper information or a delay in data processing", I have actually contacted DVLA and they replied with the schedule when Highview has first contacted them for my details as keeper, which is on 25/10/2017, and DVLA confirmed that "As such requests were made electronically this would have generated automatic responses which would have been sent electronically to the relevant company the following working day", which would have been 26/10/2017 and I trust Highview has subsequently generated their first NTK on 27/10/2017 and sent to me. This proves that it was Highview themselves delayed the process rather than DVLA.

Can I still use this as an appeal ground to POPLA or would I fail?

Many thanks to everyone who helps!

claxtome

”Hi OP, sorry to hijack your post but I have exactly the same situation. But I need a bit of clarification please from Claxtome - Can you please clarify this? Is the operator's response about 6 months to sent to NTK is valid or not? I have received exactly the same rejection letter as the OP's, even with the same exact wording. My incidence was dated 26/08/2017, and the first NTK was issued on 27/10/2017.

While Highview is trying to blame DVLA for delaying the process by saying "such occurrences can occur due to a number of reasons, such as delays in receiving keeper information or a delay in data processing", I have actually contacted DVLA and they replied with the schedule when Highview has first contacted them for my details as keeper, which is on 25/10/2017, and DVLA confirmed that "As such requests were made electronically this would have generated automatic responses which would have been sent electronically to the relevant company the following working day", which would have been 26/10/2017 and I trust Highview has subsequently generated their first NTK on 27/10/2017 and sent to me. This proves that it was Highview themselves delayed the process rather than DVLA.

Can I still use this as an appeal ground to POPLA or would I fail?

Yes I would use an appeal point and quote the relevant part of POFA 2012 Schedule 4 about NTK timings.

I am no expert but surely you can't use a future CoP until it has been released and live.
Also surely the new BPA guidelines conflict with POFA 2012 Schedule 4 in terms of timing of a NTK.

Interested to hear other people's views.

Fruitcake

MickyMouseMilliMe wrote: »

Hi OP, sorry to hijack your post but I have exactly the same situation. But I need a bit of clarification please from Claxtome - Can you please clarify this? Is the operator's response about 6 months to sent to NTK is valid or not? I have received exactly the same rejection letter as the OP's, even with the same exact wording. My incidence was dated 26/08/2017, and the first NTK was issued on 27/10/2017.

While Highview is trying to blame DVLA for delaying the process by saying "such occurrences can occur due to a number of reasons, such as delays in receiving keeper information or a delay in data processing", I have actually contacted DVLA and they replied with the schedule when Highview has first contacted them for my details as keeper, which is on 25/10/2017, and DVLA confirmed that "As such requests were made electronically this would have generated automatic responses which would have been sent electronically to the relevant company the following working day", which would have been 26/10/2017 and I trust Highview has subsequently generated their first NTK on 27/10/2017 and sent to me. This proves that it was Highview themselves delayed the process rather than DVLA.

Can I still use this as an appeal ground to POPLA or would I fail?

Many thanks to everyone who helps!

You should start your own thread once you have thoroughly read the NEWBIES thread. That way all the answers you get will be specific to your own case.

Fruitcake

OP, I suggest you use the long signage template appeal point from post 3 of the NEWBIES thread instead of your short version, and embed your own images to show how their signage is inadequate.

novangelion

Micky Mouse - i applied for accessed data through DVLA as well. Their date of enquire is a month after! Guess i can add this point as well. Could you link me to your PoPLA appeal for a read?

Fruitcake - Thanks. I wasn't sure how much to use. Reading the PoPLA website, it said don't use templates etc. So did want to go too mad! i guess we just need to go the full length to make certain. Do i keep all hyperlinks in aswell? I'm guessing yes!