Lease car notice to hirer - help please!

KeithP

You may well be the keeper, just not the registered keeper.

Coupon-mad

Call yourself the lessee/hirer, show us the new version and you may get more comments.

We are busy but seeing a new version will help, as my forum view now shows this thread as on page 2 so I can't even see your appeal now unless I click back...no time!

JohnBoy987

New Version - taken out some of the bumpf...


Dear POPLA,!!!8232;!!!8232;On the xx/xx/xxxx, parking firm. 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…”!!!8232;!!!8232;As the registered hirer/lessee I wish to refute these charges on the following grounds:

• As the registered hirer/lessee, I have no liability for this charge
• parking firm. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

As the hirer/lessee, I have no liability for this charge.
To support this point further the following areas of dispute are raised:!!!8232;
The Notice to Hirer/Lessee is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons:
Under sub-paragraph 14 (2) (a) of the Protection of Freedoms Act 2012 (POFA), the Notice to Hirer (NTH) was not sent with the required accompanying documentation, as per sub-paragraphs 13 (2) (a) (b) and (c) of the Protection of Freedoms Act 2012 (POFA).

Namely;

13 (2) (a) statement signed by, or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under the hire agreement;

13 (2) (b) a copy of the hire agreement;

13 (2) (c) a copy of a statement of liability signed by the hirer/lessee under that hire agreement.
I understand the letter sent to (the lease company) was received by them on xx/xx/xxxx. I understand they responded to parking firm on xx/xx/xxxx to confirm the car is leased to myself, and provided my details as hirer/lessee, together with a copy of my signed hire agreement and statement of liability. parking firm acknowledge in the Parking Charge Notice sent to me on xx date that they have been sent copies of the signed hire agreement and statement of liability by the lease company.

None of these three required documents have been provided to myself as hirer/lessee. As a result of not complying with sub-paragraph 14 (2) (a), the creditor may not exercise the right under paragraph 4 of the Protection of Freedoms Act 2012 (POFA) to recover from the hirer/lessee any unpaid parking charges specified in the notice to hirer.

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.!!!8232;!!!8232;

In cases with a hirer/lessee, yet no POFA 'hirer/lessee 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. The 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 hirer/lessee without a valid NTH.!!!8232;!!!8232;

As the hirer/lessee 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 'NTH' was served or not, because the fact remains I am only appealing as the hirer/lessee and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer/lessee appellant to be deemed to be the liable party.!!!8232;!!!8232;

Finally with relation to this point, the appeal that was made to parking firm on xx/xx/xxxx explained the elements of PoFA they had not complied with, and the rejection of my appeal did not refer to PoFA at all. I can only assume the person considering my appeal had not taken the time to read my grounds for appeal as hirer/lessee.

parking firm. 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 parking firm. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that parking firm 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.!!!8232;!!!8232;
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:!!!8232;!!!8232;

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.

Coupon-mad

As the [STRIKE]registered[/STRIKE] hirer/lessee I wish to refute these charges on the following grounds:

As the [STRIKE]registered[/STRIKE] hirer/lessee, I have no liability for this charge

No 'registered'...just 'as the hirer/lessee'.

Your 'no landowner authority' point should be the full template version.

You need the usual 'dodgy signs' template (never mind if you know what the sign are like or not, it's used EVERY time in a POPLA appeal, puts the PPC to proof).

I would also add the usual POPLA template that the appellant (lessee) has not been shown to be the individual liable.

And I would add the new one about the ICO ANPR surveillance camera CoP (search the forum for that one, I can't recall if it's in the NEWBIES thread yet).

POPLA appeals are best long and strong to clear up the PPC mess!

JohnBoy987

Brill thank you!! Will adjust and send. Really appreciate your help.

JB

JohnBoy987

Hi Everyone - just thought I would update you.

Turned out I had actually got 3 tickets within a two week period, it took over a month from date of parking one for them to write to me as hirer.

Anyhow - I followed your advice and sent the same letter to each reference - the Edna badger pofa section 13/14 non compliance one to each of the 3 notice to hirers.

In each instance the parking firm sent a generic - dear sir/madam, you overstayed therefore appeal is rejected.

So I sent a more detailed appeal to popla - same one to each (pofa non compliance, no authority from landowner, not clear signs, appeal process of parking firm flawed as didnt address my reason for appeal/ didn’t use my name despite having it.

Each time it took about 2-3 weeks for a response - but each time the parking firm chose not to contest, so therefore the charge is cancelled.

Cannot thank all of you enough!! And to anyone in my situation wondering when the parking firm rejects and withdraws the ‘reduced fee’ if payment made quickly if you go to popla... BE BRAVE!! Have the confidence that it is not compliant and therefore reduced payment or not, it is not a payment you will have to make (I did think at one point I may just pay up as the cost if I hadn’t got them overturned would have been in excess of £250 :eek: )

Happy to share templates that were successful if it would help anyone.

Thank you again sooooo much!!

Coupon-mad

Hooray, as expected but we know it's new for you, now you know that as a hirer/lessee of a car, you are actually in the very best position to appeal any PCNs, as long as your lease/company Fleet Manager knows to give them to you to appeal, and not to just pay them!

Tell your company Fleet chaps how easy this was, so they know you succeeded.

Happy to share templates that were successful if it would help anyone.

Yes please, on this thread. Because we do sometimes get a newbie stumbling on a single thread and asking 'what did you put in your appeal?' even though the templates are in the NEWBIES thread. It helps people to read the whole story on your thread.

JohnBoy987

Send to parking firm:




Dear Sir,

Parking Charge Notice <<PCN number>> Vehicle Registration <<REG>>



I refer to the above-detailed Parking Charge Notice issued to me by <<parking firm>> as a Notice to Hirer. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why <<parking firms>> Notice to Hirer did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.




Furthermore,in order to proceed with keeper liability POFA confirms <<parking firm>> must have sent required documentation and notice to the keeper within 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN received, there is more than 2 months between the date of event <<date of parking>> and the date of issue <<date on notice to keeper>>



Given that <<parking firm>> has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

Thank you for your cooperation and I look forward to receiving your response within the relevant timescales specified under the British Parking Association Ltd Code of Practice.


********END OF INITIAL APPEAL***************************



Letter to be sent to POPLA if your initial appeal is rejected (and POPLA code issued):



The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA')

In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).


Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator's Notice to Hirer refers only to the Notice to Keeper, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.


Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA's particular attention to the section entitled 'Keeper Liability' in which it is explained that:

'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.......
.......... However keeper information is obtained, 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'.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.


I also note case ref.6061796103 against ParkingEye in September 2016, where a POPLA Assessor stated:
''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 is relevant due to the fact that, although the case she refers to is talking about the fact that Parking Eye did not use POFA on that occasion, on this occasion <<parking firm>> are unable to use POFA to transfer the charge to myself as the keeper of the vehicle.


No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

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. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver 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 !!!8211; they have not provided this.

As a POPLA assessor has said previously in an adjudication

!!!8220;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!!!8221;

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than the nominal amount for a parking space in the same locality.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility. I reiterate that there should be no presumption of who the driver of the vehicle was at the time in question.


Generic Response to initial appeal to <<parking firm>>


Finally, my appeal appears to have been disregarded without any due consideration or adequate response.
Despite the fact that <<parking firm>> have my details on file as the hirer/lessee I notice their reply is addressed to !!!8220;Dear Sir / Madam!!!8221; which implies that this is simply a generic letter with no personalised content relevant to my case beyond the time and location.
Further the rejection response did not even relate to the grounds to which I had raised an appeal as hirer/lessee. From the response to my appeal I can only conclude that it was not read.
This leads me to the conclusion that their appeal process is flawed in that it appears to have remained unread, and simply a generic template response was sent out which fails to adequately address any of the points raised in my appeal, or that <<parking firm>> is unable to provide answers to these questions due to lack of evidence.