PCN Premier Park POPLA Appeal

KeithP

C-M, the OP's posts do seem to be somewhat cryptic, but he did say in post #6:

No it was a postal PCN, opening line, "We have issued PCN to a vehicle you have been named as driving".

So it appears that we have a postal PCN which says "you have been named as driving".

Seems strange to me.

Topcarp, please can start writing in full sentences. It is quite difficult to follow your posts.

topcarp

Coupon-mad wrote: »

The first reminder letter (after a windscreen PCN) is the NTK. It doesn't have to call itself an NTK.

Oh dear, in that case I'm not quite sure where this leaves me.

I am finding it very hard to find a template similar to my predicament with which to fight this PCN

topcarp

KeithP wrote: »

C-M, the OP's posts do seem to be somewhat cryptic, but he did say in post #6:

So it appears that we have a postal PCN which says "you have been named as driving".

Seems strange to me.

Topcarp, please can start writing in full sentences. It is quite difficult to follow your posts.

Sorry, what would you like me to clear up for you?

KeithP

Was a windscreen PCN issued? Yes or No?

I'm struggling to understand where the phrase "you have been named as driving" has come from?

Who has named you as the driver? You probably can't answer that, which is why I asked earlier whether it was a hire car.

topcarp

KeithP wrote: »

Was a windscreen PCN issued? Yes or No?

I'm struggling to understand where the phrase "you have been named as driving" has come from?

Who has named you as the driver? You probably can't answer that, which is why I asked earlier whether it was a hire car.

No it was a postal pcn that was issued, an employee of Premier Park goes around the car park taking photos of cars that they believe are contravening the T's&C's. The parking company then send out the PCN's in the post titled Parking Charge Notice and First Reminder in that order. The PCN incident date is 29/01/18 and issue date is 13/2/18, 15 days apart.

The PCN named me as driver in both letters.

Coupon-mad

The PCN incident date is 29/01/18 and issue date is 13/2/18, 15 days apart.

Good, so that's a non POFA one, arrived too late for keeper liability!

The PCN named me as driver in both letters.

How can it have done, do you mean they are assuming you were the driver, they can't assume and you can win based on the time it took them to serve the postal PCN (NTK).

KeithP

It's getting clearer.

There was no Notice to driver issued - that would've been a windscreen ticket.

The first you heard of this incident was when a PCN arrived through the post - that's the Notice to Keeper.

If the date of the incident was 29 January, then to hold the keeper liable that NtK must have arrived with you by before 14 February.
As the issue date of the NtK is 13 February, it cannot have arrived with you in time to hold the keeper liable.

So now you go to post #3 of the NEWBIES FAQ sticky thread and find the already written No Keeper Liability PoPLA appeal template.
Follow that with the template for The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

Follow those with the signage template and then the No Landholder Authority template.

Then post your completed draft PoPLA appeal here for review.

topcarp

Coupon-mad wrote: »

Good, so that's a non POFA one, arrived too late for keeper liability!


How can it have done, do you mean they are assuming you were the driver, they can't assume and you can win based on the time it took them to serve the postal PCN (NTK).

Great, I'm assuming need to find a non POFA template then?

They must be assuming as the opening line of the PCN states and this is word for word, "We have issued Parking Charge Notice ****** to a vehicle you have been named as driving". This is also used on the first sentence in the First Reminder letter.

topcarp

KeithP wrote: »

It's getting clearer.

There was no Notice to driver issued - that would've been a windscreen ticket.

The first you heard of this incident was when a PCN arrived through the post - that's the Notice to Keeper.

If the date of the incident was 29 January, then to hold the keeper liable that NtK must have arrived with you by before 14 February.
As the issue date of the NtK is 13 February, it cannot have arrived with you in time to hold the keeper liable.

So now you go to post #3 of the NEWBIES FAQ sticky thread and find the already written No Keeper Liability PoPLA appeal template.
Follow that with the template for The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

Follow those with the signage template and then the No Landholder Authority template.

Then post your completed draft PoPLA appeal here for review.

Is this the No Keeper Liability template you speak of?

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers. Furthermore, as the PCN did not arrive within the stipulate period of 14 days, as specified within the POFA 2012, you have failed to meet the strict deadlines to transfer liability to the keeper.

Therefore, there will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

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. 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.''

topcarp

Would someone be good enough to cast an eye over my draft and correct me if I am wrong in any way?