NTK after 141 days

SaXoN_UK1

** Further Update**

WIN !
Appeal upheld at POPLA. I've posted the full assessment and decision on the relevant thread but the thing the assessor picked up on was, the Land owner authority and the lack of evidence that PCS have said authority. They actually refused to show that they have signed authority from the Land owner in their Operator Evidence, even though it was asked for.

A big thank you to Coupon Mad and Fruit cake for their help.

**Update**

So my appeal was rejected by PCS, no surprise there I'm sure. However they have not provided any new evidence and as their existing evidence is 7 pictures taken over about 10mins (time stamps on pictures) of the car without and then with a ticket I'm not sure how they are going to prove that the car was parked there for more than an hour. There are no cameras and there is no witness statement.

On to the POPLA then. I'm gong to put my draft defence below and I would be extremely grateful for CC as well as pointing out any extra things I could add. I've mainly copied from existing examples form this forum so any further examples/advice would be much appreciated.

Thank you in advance.



Original post:
I have just received a NTK from Parking Control Solutions Ltd and I was about to use the appeal template as recommended on here but noticed in the in one of the answers to a FAQ it says : "the very fact a PPC forgets to send you a NTK by day 56, gives you a winning point at POPLA! "

Should I use the template as recommended or with the NTK being so, late is there anything else I should add ?

Thank you in advance.

Fluff15

SaXoN_UK1 wrote: »

I have just received a NTK from Parking Control Solutions Ltd and I was about to use the appeal template as recommended on here but noticed in the in one of the answers to a FAQ it says : "the very fact a PPC forgets to send you a NTK by day 56, gives you a winning point at POPLA! "

Should I use the template as recommended or with the NTK being so, late is there anything else I should add ?

Thank you in advance.

No just use the one size fits all template for initial appeal. Do not mention any other points, they are for the POPLA stage if it gets to it. Send the appeal as is and await a POPLA code or a cancellation letter.

Fruitcake

You can add a one liner that the NTK is too late to transfer liability to the keeper if you wish. In many cases though it won't make any difference as the scammers don't have to use the PoFA.

Have you complained to the landowner yet?

Please also complain to your MP about this unregulated scam.

SaXoN_UK1

This is my POPLA defence so far, it is a work in progress so any CC would be welcome. I'm not sure if point 4 is a defence but it strikes me that it should be:

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from PCN PArking Solutions.

1. Notice to Keeper is not compliant with the POFA 2012 - no keeper Liability.
2. 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.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
4. No evidence that the driver exceeded the time stipulated to incur a fine.


1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 17/10/2018 and from my understanding the NTK was required to reach me by 12/01/2019. As can be seen in the attached photo the NTK was posted to me on the 04/03/19, 141 days after the alleged infringement. Therefore, there can be no keeper liability.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve the NTK within the timeframe laid out. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator.

2. 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.''

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

4. No evidence that the driver exceeded the time stipulated to incur a fine.
The evidence provided by PCN consists of 7 photos of the vehicle in question firstly without a ticket and then with the issued ticket, with the time stamps on all the photos within 5 minutes of each other. There is no evidence that the vehicle was parked for more than 7 minutes and if there is, it has not been made available to me, the keeper of the vehicle.

Coupon-mad

That's good and the first point will win it anyway.

But to rub their noses in it, I would still add the usual 'unclear signs' template.

SaXoN_UK1

Excellent thank you Coupon-mad, I will do. A colleague who got a ticket on the same day has just received a debt collection letter, never had a NTK so that will be another POPLA against them.

D_P_Dance

Complain to your MP. On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

SaXoN_UK1

Update:

POPLA has sent me the Operators evidence and counter to the above. Key points from them are:
-They have 6 months to send a NTK
-"The appellant is not entitled to evidence of Landowner Authority document as there is clear privity of contract in so much as the contract between the operator and the Landowner bears no relevance to the contract between the appellant and the operator." As an aside they put this in as well "this document is commercially sensitive and it can be assumed that the appellant may be receiving assistance from online consumer forums, the operator sees no benefit in this document potentially ending up online".
-It is clear from the evidence they have supplied that 'the car entered the car park at X and left at X', when in fact the photos they provided are time stamped and are 5 mins apart from the first to the last.

As the registered keeper of the vehicle I know for a fact that the times they are suggesting the car entered and exited the car park are 100% false.

I'll be responding through POPLA but wanted to share in case anyone had any recommendations.

Coupon-mad

Take your pick, any one of three key points will cause them to lose!

-They have 6 months to send a NTK

-"The appellant is not entitled to evidence of Landowner Authority document as there is clear privity of contract in so much as the contract between the operator and the Landowner bears no relevance to the contract between the appellant and the operator." As an aside they put this in as well "this document is commercially sensitive and it can be assumed that the appellant may be receiving assistance from online consumer forums, the operator sees no benefit in this document potentially ending up online".

-It is clear from the evidence they have supplied that 'the car entered the car park at X and left at X', when in fact the photos they provided are time stamped and are 5 mins apart from the first to the last.

Why did they bother if they couldn't be bothered to supply the landowner contract?!