NTK Received After 4 Weeks

Coupon-mad

Your letter in #13 is not a POPLA appeal. That's a very basic first appeal. That's what threw us!

There's no paragraph regarding PFA on my NTK.

Why not search the forum for 'ParkingEye golden ticket POPLA'. We assume you did read post #3 of the NEWBIES FAQS thread already, which gives you the POPLA template points.

BobSmith5

Coupon-mad wrote: »

Your letter in #13 is not a POPLA appeal. That's a very basic first appeal. That's what threw us!

Why not search the forum for 'ParkingEye golden ticket POPLA'. We assume you did read post #3 of the NEWBIES FAQS thread already, which gives you the POPLA template points.

Oh, sorry. I have been reading it, but find it confusing. I will try again.

When ParkingEye sent the rejection, they did not tell me how long I have to appeal to POPLA. Is that known?

Coupon-mad

32 days approx.

BobSmith5

Coupon-mad wrote: »

32 days approx.

Hi,
I've tried to draft another appeal using points I've found across various posts. Would it be possible to check it for me, as I still find this rather confusing. I don't think I have much longer left to send my appeal to POPLA. Unfortunately, due to illness, I've not had much time to do it earlier.

Dear POPLA,

A Notice to Keeper (NTK) was issued on the xxxx, and received by myself, the registered keeper of the vehicle. I am writing to appeal this ticket on the following grounds:
1) The NTK fails to comply with the Protection of Freedoms Act 2012.
2) No keeper liability.
3) The operator has failed to adhere to the British Parking Association Code of Practice regarding Disabled Motorists.
4) The amount claimed is not a genuine pre-estimate of loss to the landowner.

1. The NTK fails to comply with the POFA 2012.
To support this claim further the following areas of dispute are raised:
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 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 xxxx. 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 xxxx and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on xxxx (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 appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

2. No keeper liability
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.

3. Failure to adhere to BPA regarding disabled motorists.
The BPA Code of Practice highlights under section 16.5, that a vehicle displaying a valid Blue Badge must not be issued with a parking charge notice; “if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.”

The car was parked in a disabled bay, at the time of the contravention. Badge number provided in additional documents.

4. Amount claimed is not a genuine pre-estimate of loss.
The demand for a payment of £100 as noted within the Parking Charge is unreasonable and exceeds any appropriate amount of loss suffered by the Landowner. There was no damage nor obstruction caused, so there can be no loss arising from the incident.!

In this case ParkingEye Ltd. has failed to provide any calculation to show how the £100 penalty charge was arrived at, and whether it is an actual or pre-estimated loss. Given that ParkingEye Ltd. charge the same fixed charge to any alleged breach of contract (whether serious/damaging, or trifling in this case), and that the claimed £100, with 40% discount for prompt payment, is the maximum penalty allowed without prior justification to the BPA (section 19.5 & 19.6, BPA Code of Practice), it is clear that there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss and that ParkingEye Ltd is exploiting section 19 of the BPA code of practice. Under section 19 of the BPA Code of Practice it states the following:
19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
• When a motorist breaks the terms and conditions of a parking contract
• When a motorist trespasses by parking without permission
• Agreed charges that are advertised in the contract

Based on the information offered it would suggest that the figure being demanded is not a genuine pre-estimate loss earning due to the fact that operational costs, such as the installing and the maintenance of equipment should not be included.

Thank you.

KeithP

I am the appellant throughout (as I am entitled to be)...

Of course you are - you're writing the appeal.
That should say "I am the keeper throughout".

The BPA Code of Practice highlights under section 16.5, that a vehicle displaying a valid Blue Badge must not be issued with a parking charge notice; !!!8220;if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.!!!8221;

When did your parking incident take place?
There has been no clause 16.5 in the BPA CoP since 01 October 2015.


Your point 4. is also way out of date.


Where did you get this from?

You need to find a more recent starting point.
Pick one from 2017 only.

I did suggest earlier:

KeithP wrote: »

As well as no keeper liability consider -
Signage
No Landowner Authority

...but you appear to have decided against using those points.

BobSmith5

KeithP wrote: »

Of course you are - you're writing the appeal.
That should say "I am the keeper throughout".

When did your parking incident take place?
There has been no clause 16.5 in the BPA CoP since 01 October 2015.

Your point 4. is also way out of date.

Where did you get this from?

You need to find a more recent starting point.
Pick one from 2017 only.

I did suggest earlier:

...but you appear to have decided against using those points.

Hi Keith.
Thank you for the suggestions. I searched for 'Golden Ticket' and copy and pasted the points.

The incident took place last November.

Regarding the Blue Badge, I got the point from the BPA CoP,
but I think I may have opened a previous version.
I've looked at the up to date version,
and point B2.1 d states:
The following vehicles must not be issued with a parking
ticket:
vehicles displaying a valid disabled (blue) badge when
the landowner provides a concession for disabled
people.

Am I able to use this point?

In regards to the signage, I'm not able to get photographs of the sign, so I'm not sure if I am able to use this point?
Regarding landowner authority, it was a hotel car park. Can this still be used?

Thank you, again.

Quentin

BobSmith5 wrote: »

Regarding the Blue Badge, I got the point from the BPA CoP,
but I think I may have opened a previous version.
I've looked at the up to date version,
and point B2.1 d states:
The following vehicles must not be issued with a parking
ticket:
vehicles displaying a valid disabled (blue) badge when
the landowner provides a concession for disabled
people.

Am I able to use this point?

What do you see is the concession for BB holders?


Isn't the issue that the driver parked, displayed the bb but didn't pay (ie there was no concession for bb holders)

BobSmith5

Quentin wrote: »

What do you see is the concession for BB holders?

Isn't the issue that the driver parked, displayed the bb but didn't pay (ie there was no concession for bb holders)

Providing the disabled bays? Does that not count?

Quentin

A concession is usually a reduction (as in reduced admission prices for unwaged/pensioners etc)


In a car park a concession for BB holders would be free parking where others have to pay or reduced parking charges.

BobSmith5

Hi all,

I have updated my appeal to POPLA, using the suggestions. Please could someone look over it for me? It's largely a copy and paste job. Apologies, as I can't quite wrap my head around over the terminology enough. Thank you.

Dear POPLA,

A Notice to Keeper (NTK) was issued on the xxxx, and received by myself, the registered keeper of the vehicle. I am writing to appeal this ticket on the following grounds:
1) The NTK fails to comply with the Protection of Freedoms Act 2012.
2) No keeper liability.
3) No Evidence of landowner authority
4) Insufficient signage

1. The NTK fails to comply with the POFA 2012.
To support this claim further the following areas of dispute are raised:
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 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 xxxx. 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 xxxx and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on xxxx (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 appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

2. No keeper liability
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 keeper 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.

3. No evidence of landowner authority
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

4. Insufficient signage
Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visable in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visable to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.