PCN - Stansted MET parking appeal rejected, now to appeal to POPLA (questions)

bexxuser

Hi,


We received a PCN for Stansted Mcdonalds/Starbucks car park stating we did not pay to park there (blah blah) on 20th September 2018, the date of notice issue was 18th October (not within the 14 days)
I looked on this forum and sent the necessary appeal to MET which has now been rejected.


After looking at some of the successful POPLA appeals I got this draft from a member on here - Cavalyman. However I am not sure what attachments to send with the letter.
Any help would be appreciated.




POPLA Ref 386*******
MET Parking Services PCN no AB2****24

A notice to keeper was issued on 14 March 2018 and received by me, the registered keeper of *********** for the alleged contravention of ‘Breach of terms and conditions’’ at Southgate Park, Stanstead. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Non-compliance with requirements set out in Schedule 4 of POFA 2012
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Insufficient evidence of the alleged contravention
5) Amount demanded is a penalty
6) The PCN was not issued in the authorised time period (14 Days) and there was no Windscreen ticket issued in accordance with the conditions as per POFA – See Attachment 2

1) Non-compliance with requirements set out in Schedule 4 of POFA 2012:
If MET Parking Services wish to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 the Notice to Keeper must meet the strict requirements set out in Schedule 4 of POFA 2012; paragraph 8 states specifically “The notice must—specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” The notice to keeper that I have received does not state the period of parking to which the notice relates, only the time the PCN was issued.

Due to the omission of this detail the notice to keeper does not comply with Schedule 4 paragraph 6 of POFA 2012 and means that myself, the registered keeper of the vehicle cannot be held to account for the alleged debt of the driver.

See Attachment 1 and 2

2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

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.

Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.
3) 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 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).

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 evidence of the alleged contravention;

The evidence provided by MET Parking Services for the alleged “breach of terms and conditions” stated as “Left the Premises” does not show the location of the driver in any way or for any period of time and therefore cannot be used as evidence as such. It is an assumption that the driver or parties from the vehicle “left the premises” because of the direction they were walking in – it does not show them walking back to the facilities in said premises after a few minutes. The photo of the car in question and the consequent photos does not account for all the location of the driver and parties from the vehicle.

5) Amount demanded is a penalty Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis.
I therefore request that POPLA uphold my appeal and cancel this PCN.


Thank you in advance

KeithP

bexxuser wrote: »

I looked on this forum and sent the necessary appeal to MET which has now been rejected.

No, that's not quite what happened.

On 24th October you posted an appeal that you were proposing to send to MET.

I suggested you send the standard template appeal.

Earlier today you deleted your 24th October post, leaving my response rather meaningless.

Good luck.