I should know better - MET, McDonalds, England

AltheHibby

Helping a family member in England.

The short version of the rejection is:

1. Confident signage is sufficient and "exceeds" requirements.

2. Fact there are signs = landowner authority.

3. "blah, blah, however, if the matter should proceed to court for collection and the court require a copy of formal landowner consent one will be provided to the court at that time"

I have pasted a copy of the draft POPLAappeal in my next post (excluding topping and tailing).

However, re point 3 above. My reading of it is that they want payment while withholding the contract that gives authority from the keeper, denying them the chance to see the contract they are being charged under. Is it worth adding some words about this/ (or is it covered here: "There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.")

Thanks in advance.

PS, CM, you missed out by not bidding for our star player. John MgGinn looks like a hero at Villa already.

AltheHibby

Deleted as not now needed.

Coupon-mad

AltheHibby wrote: »

PS, CM, you missed out by not bidding for our star player. John MgGinn looks like a hero at Villa already.

Maybe! We did spend 60 million on various players though...so we can but hope.

Is it worth adding some words about this/ (or is it covered here: "There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case."

Stuff about the contract on the signs is not the same as the landowner contract.

But you already have what you need here, about the landowner contract:

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

Is this MET McDonalds overstay? Use the ANPR ICO point in the NEWBIES thread if so.

Was the PCN served within 14 days? Does it have the POFA keeper liability words from 9(2)f of Schedule 4? If not, they need 'no keeper liability' and the 'appellant is now shown to be the individual liable', as long as they never said in an early appeal who was driving.

Or is it a windscreen PCN for daring to walk to McDonalds at the Airport where the boundary is not clear between McD's and Starbucks? If it's one like that then there are other points about the photo evidence not showing the random people in the pics were the driver who parked on arrival. There are threads about that sort of MET POPLA appeal.

AltheHibby

Thanks, C-M,

£60m would run Hibs for 5 or 6 years! Good luck this season.

I'm being really thick here. I can't find the point on the ICO ANPR in any of the links except a PDF. Is this correct?

Also, I have seen the NTK and it seems to have the correct wording. Do I still put the point in my draft for the RK? Again, I can only see a PDF version.

Sorry to be a pain.

Coupon-mad

I would still include the POFA point about the NTK, as it is for them to disprove and the longer the POPLA appeal the better. Some PPCs give up when they see a several-pages long appeal.

I am pretty sure the ICO point is in a POPLA appeal several times over, not a PDF.

AltheHibby

Thanks. I will be at the RKs house next week and will sort it all then.

AltheHibby

Deleted on CM's advice

nosferatu1001

If youve just copied it, did you check everythin applies?
Theres no point us checking an appeal already written elsewhere, as its gone through this process.

AltheHibby

I did check it, and it seemed to cover everything. It's Cabbyman's.

I was just worried I had missed something.

Thanks.

Coupon-mad

The ANPR system is neither reliable nor accurate

I don't like that template. There's a better one in the NEWBIES thread, about the ICO ANPR rules not being adhered to (and POPLA ignore both!).

The template you used was based on a EuroCarParks PCN, not a MET one, originally. Are you sure about all this being missing?

In terms of wording:

- Contrary to the requirements of Paragraph 9(2)(b), the PCN did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in an NTK which was not received.

- Contrary to the requirements of Paragraph 9(2)(e), the PCN, as a sham Notice to Keeper, did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... 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''

- The NTK would have failed in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...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''

- Contrary to the requirements of Paragraph 9(2)(i) the PCN, as a sham Notice to Keeper, does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

Consequently, MET has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If MET should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr. Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

https://www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

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.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the PCN, masquerading as the NTK, and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr. Greenslade, POPLA Lead Adjudicator, in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.

AltheHibby

Thanks. I am merging your suggestion into my original template and will post it here for final comments from our panel of experts (CM, Coupon-mad and school run mum!!!) :-)