Mc donalds pcn from ukpc.

Davy_dicko

When I sent my appeal to ukpc I used the whole template on the newby section and sent it and it was declined. Do I just copy the whole thing again for popla?

Redx

NO, definitely not

scroll DOWN the NEWBIES thread to post #3 and carefully study it

and read the POPLA DECISIONS sticky thread from the end (backwards) and look at their winning popla appeals too

Coupon-mad

Davy_dicko wrote: »

I can appeal through popla but is it worth it. And what should I say in my appeal to them?

Wow, do you not understand why you will win and this is all as expected?

The_Deep

Davy_dicko wrote: »

When I sent my appeal to ukpc I used the whole template on the newby section and sent it and it was declined. Do I just copy the whole thing again for popla?

Declined by whom, PoPLA, your computer?

Davy_dicko

Declined by ukpc

Davy_dicko

Coupon-mad wrote: »

Wow, do you not understand why you will win and this is all as expected?

I understand that I was not the driver so did not enter into an agreement with McDonald's or ukpc.
And that they failed to notify me for a whole month with the NTK. What else could I say?

MistyZ

Include all the usual sections, though perhaps not grace periods.

You mention that the image on the PCN was very dark and unclear, was it dark when the car was parked? If so, it would be good to get some photos of signage in similar light conditions to embed in the POPLA appeal. In any case, 'signage' is most definitely a section to include as signs (and the way they're positioned) are rarely satisfactory, so if possible get pics of the signs yourself or from Google Earth.

'No landowner authority' is another routine section (it's all in the Newbies' section) and it can produce a good result as, again, contracts between the PPC and the landowner often fail to pass muster or, indeed, are not produced at all by the PPC which is grounds for a win just as long as authority has been challenged.

You need to start 'collecting' relevant POPLA sections from the Newbies' thread and other threads. Choose ones that are well-worded and fit the circumstances as far as possible. Then go to work on them to make them 100% relevant to this appeal.

Davy_dicko

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC on the following points:

1.Parking charge notice does not comply with Schedule 4 of the protection of freedoms act 2012 sub paragraph 9 (2&5)


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge, so registered keeper did not enter into a contract or its terms and conditions.
Y

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



1.Parking charge notice does not comply with schedule 4 (POFA) Registered keeper no liable.

This operator has not fulfilled the full conditions for keeper liability as defined in Schedule 4 paragraph 9 (2&5) and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

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


9(1)
A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must -
(f)
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, ando
(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;
(4)
The notice must be given by—
(a)
handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)
sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)
The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)
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 PCN must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after that on which the specified period of parking ended.. The date of the parking offence is 04/01/2019, date of the PCN is 08/02/2019. The PCN does not warn the keeper that, if after a period of 28 days, UKPC has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. As this operator has evidently failed to serve a PCN in time they have failed to adhere to the strict requirements set out in PoFA 2012. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given in time.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. Registered keeper did not enter into a contract or adhere to terms and conditions.

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.''


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 - 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

Davy_dicko

Any input on my appeal draft would be Appreciated thanks. I’ve been doing it on an iPad as I’ve no laptop

MistyZ

I haven't read every word, but seems okay at first sight.

I like the fact that you've got the non-POFA PCN section at the top, strongest point first.

You decided not to bother with a signage section then?

A few little typos e.g. a stray 'Y' after item 2 in your list and heading 1: 'Registered keeper no liable'.