Gemini Parking Popla stage

Spine

1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.


Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.

Gemini Parking Solutions have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

9(2) The notice must —

(e) 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—
(i) to pay the unpaid parking charges; or
(ii) 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;

(f) warn the keeper that the creditor have the right to recover from the keeper so much of that amount as remains unpaid after the period of 28 days beginning with the day after that on which the notice is given


FAILURE TO COMPLY WITH 9(2)(e)OF SCHEDULE 4:
The NTK posted by this operator asks the keeper recipient to name the driver but fails to include the mandatory words:

''...and to pass the notice on to the driver''.

The whole point of this section - and the clear intention and will of Parliament - is that keepers are to be informed in the first letter, that if they were not driving, they are to pass the Notice to the driver. I was not informed about this and had no opportunity to pass the notice to the driver, and instead understood from the NTK that (if I chose not to name the driver, as was my right) I had to either pay it or appeal it. So I am appealing it as registered keeper and the wording has misled me on a fact of the applicable law.

FAILURE TO COMPLY WITH 9(2)(f) OF SCHEDULE 4:
The NTK posted to me fails to use the right period of time or wording, in its crude attempt to paraphrase 9(2)(f).

It says (wrongly and very loosely):

"If after 29 days we have not received full payment or driver details, we have the right, to recover the parking charge amount that remains unpaid''

This timeline is incorrect as it misses out the fact that the period begins only on the day after the notice was given, and it also fails to even inform me what relevance the (top right) 'issued date' has or what 'date given' means, as they have omitted that phrase entirely. The wording is wrong and ambiguous as to charge to whom it shall be recovered from.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

Failure to comply with sections of the applicable law - namely 9(2)e, and f of the POFA - are significant omissions and errors which are fatal to any postal PCN attempting to transfer liability to the registered keeper. It is in the public domain that POPLA (this current version of POPLA, as well as the previous London Councils service too) have found before, many times and consistently for years, that NTKs with the words 'after' or 'within' 28/29 days and the loose phrase 'or driver details' fail to meet the statute and are PCNs that were not properly given.


In fact, there is no reference to POFA 2012 in NTK or what legislation the operator is relying on to pass liability to the keeper. The NTK is misleading and uses incorrect wording.





2. The entrance signs are inadequately positioned and lit and signs in this car
park are not prominent, clear or legible from all parking spaces and there is
insufficient notice of the sum of the parking charge itself.


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.


Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces or before entry.
On request, Gemini Parking had submitted some close up photo of the vehicle in question and an isolated unreadable close up sign of a notice.
On a recent visit after the alleged contract and on locating the position from where the vehicle was parked (illustrated by arrow) – it is clear apparent that there are no signs in view for the driver to see.
See Fig.1 and 2.


Fig.1
hxxps://imgur.com/zQMLygq


Fig.2


hxxps://imgur.com/1GODoUA





Gemini Parking Solutions claims that the terms and conditions are clearly displayed on the signs on-site but it is clearly not the case.


Fig.3 below shows the path the car would need to have taken to arrive at the spot in question (one – way traffic coming towards camera shot) – as you can see, anyone driving up here would find it extremely difficult to spot any signs.

Fig.3
hxxps://imgur.com/QX8kxho


Furthermore, it is unclear and confusing to where the terms and conditions applies throughout the area. There are no signs to the entrance of the car park to notify drivers and signs are located in obscure and hard to see places.


Fig. 4 illustrates the approach to what is presumably the start of the parking areas.
Note the parking on the left with no marked bays nor signs visible. On further investigation, most of areas and neighbouring car parks inside this large park do not have such terms and conditions as per quoted by this operator.


Fig.5 shows the area where marked bays start - presumably the entrance to parking area. Again no
signs can be seen in the line of view.


Fig.4

hxxps://imgur.com/Ugues13

Fig.5
hxxps://imgur.com/ksperQu



I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

Coupon-mad

You also need no landowner authority and 'the appellant has not been shown to be the individual liable' which should be point #2 straight after the POFA point #1 (both are templates in the NEWBIES post #3).

And a 'NOT RELEVANT LAND' Council owned point.

You can copy them all here (and edit the stuff about Brighton & Hove Council of course):

https://forums.moneysavingexpert.com/discussion/comment/75748438#Comment_75748438

HTH

Spine

Thanks CM


Just a quick question -



further research - apparently the responsibility of the Sport Centre was transferred to the London Development Agency (now Greater London Authority Land and Property GLAP) and is managed by Greenwich Leisure Limited, under their Better brand logo.



GLAP is held by a holding company called Greater London Authority Holdings Limited.

So it suggest that it is private??



Sorry - this all seems rather confusing!

Coupon-mad

No way is this private land, as it's under statutory control:

The Greater London Authority (GLA), also known as City Hall, is the devolved regional governance body of London, with jurisdiction over both counties of Greater London and the City of London. It consists of two political branches: the executive Mayoralty (currently led by Sadiq Khan) and the 25-member London Assembly, which serves as a means of checks and balances on the former. Since May 2016, both branches have been under the control of the London Labour Party. The authority was established in 2000, following a local referendum, and derives most of its powers from the Greater London Authority Act 1999 and the Greater London Authority Act 2007.

It is a strategic regional authority,

However, POPLA just don't get that! Their non-legally-trained, non-Ombudsmen Assessors have a VERY simplistic 'understanding' about the term ''not relevant land'' meaning byelaws only...this must be due to bad training or bad governance by POPLA.

POPLA should be ashamed, IMHO, as they are letting people down on an aspect of law that the Local Government Ombudsman fully understands, as shown in the Kent Council LGO decision about a complaint, back in January.

But put a point about it into your appeal anyway. Their Assessors need to learn from people like us who can see this is clearly not relevant land!

You have nowt to lose as you will win anyway, due to the non-POFA PCN.

Spine

POPLA Verification Code: xxxx
Vehicle Registration: xxxx


As keeper of the vehicle I wish to appeal on the following grounds:


1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.


2. Not Relevant Land


3. The entrance signs are inadequately positioned and lit and signs
in this car park are not prominent, clear or legible from all parking
spaces and there is insufficient notice of the sum of the parking
charge itself


4. The operator has not shown that the individual who it is pursuing
is in fact the driver who was liable for the charge


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


6. Grace Period: BPA Code of Practice – non-compliance






1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.


Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.

Gemini Parking Solutions have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

9(2) The notice must —

(e) 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—
(i) to pay the unpaid parking charges; or
(ii) 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;

(f) warn the keeper that the creditor have the right to recover from the keeper so much of that amount as remains unpaid after the period of 28 days beginning with the day after that on which the notice is given

FAILURE TO COMPLY WITH 9(2)(e)OF SCHEDULE 4:
The NTK posted by this operator asks the keeper recipient to name the driver but fails to include the mandatory words:

''...and to pass the notice on to the driver''.

The whole point of this section - and the clear intention and will of Parliament - is that keepers are to be informed in the first letter, that if they were not driving, they are to pass the Notice to the driver. I was not informed about this and had no opportunity to pass the notice to the driver, and instead understood from the NTK that (if I chose not to name the driver, as was my right) I had to either pay it or appeal it. So I am appealing it as registered keeper and the wording has misled me on a fact of the applicable law.

FAILURE TO COMPLY WITH 9(2)(f) OF SCHEDULE 4:
The NTK posted to me fails to use the right period of time or wording, in its crude attempt to paraphrase 9(2)(f).

It says (wrongly and very loosely):

"If after 29 days we have not received full payment or driver details, we have the right, to recover the parking charge amount that remains unpaid''

This timeline is incorrect as it misses out the fact that the period begins only on the day after the notice was given, and it also fails to even inform me what relevance the (top right) 'issued date' has or what 'date given' means, as they have omitted that phrase entirely. The wording is wrong and ambiguous as to charge to whom it shall be recovered from.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

Failure to comply with sections of the applicable law - namely 9(2)e, and f of the POFA - are significant omissions and errors which are fatal to any postal PCN attempting to transfer liability to the registered keeper. It is in the public domain that POPLA (this current version of POPLA, as well as the previous London Councils service too) have found before, many times and consistently for years, that NTKs with the words 'after' or 'within' 28/29 days and the loose phrase 'or driver details' fail to meet the statute and are PCNs that were not properly given.


In fact, there is no reference to POFA 2012 in the NTK or what legislation the operator is relying on to pass liability to the keeper. The NTK is misleading and uses incorrect wording.


2. Not Relevant Land

The registered keeper cannot be held liable because this is Public owned land, which is defined in the POFA as 'not relevant land'. Regardless of the wording or date of any NTK, there can be NO keeper liability.

The POFA states:
''3(1)In this Schedule ''relevant land'' means any land (including land above or below ground level) other than - (a) a highway maintainable at the public expense (within the meaning of section 329(1) of the
Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is
subject to statutory control.

...2) In sub-paragraph (1)(b) — ''parking place'' has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act and ''traffic authority'' means each of the following—
(a)the Secretary of State;
(b)the Welsh Ministers;
(c)Transport for London;
(d)the Common Council of the City of London;
(e)the council of a county, county borough, London borough or district;
(f)a parish or community council''


This bay or space is indisputably, a ''parking place'' {with}...the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984: https://www.legislation.gov.uk/ukpga/1984/27/section/32
which says at 32(4)(b)''parking place'' means ''a place where vehicles, or vehicles of any class, may wait''.

Thus it is a parking place which is provided or controlled by a traffic authority. Nothing says it has to be a parking place that's the subject of any statute or Order. It just has to be ''provided by'' any Council. For the avoidance of doubt, Bromley Council/GLAP is a 'traffic authority':

https://www.brighton-hove.gov.uk/content/parking-and-travel/parking/traffic-regulation-orders
where it says ''...the council, as the local highway authority...''

This is fully supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') whereby Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the victim registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.

Full report:

https://www.lgo.org.uk/assets/attach/4521/REPORT%2017004169%20KENT%20CC.pdf

The LGO's decision was about Council-owned land an is on all fours with this appeal in all facts and detail.

In that case, the finding was specifically about whether land that is under statutory control can have a contractual PCN enforced where the operator tries to transfer liability to the registered keeper - and they cannot. There is no mechanism to hold a registered keeper liable, and 'private' parking tickets cannot be issued on this basis on such land.

To use the Ombudsman's word, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, it is ''irrelevant'' whether or not the landowner is exercising its statutory control powers, or not.





3. The entrance signs are inadequately positioned and lit and signs in this car
park are not prominent, clear or legible from all parking spaces and there is
insufficient notice of the sum of the parking charge itself.


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.


Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces or before entry.
On request, Gemini Parking had submitted some close up photo of the vehicle in question and an isolated unreadable close up sign of a notice.
On a recent visit after the alleged contract and on locating the position from where the vehicle was parked (illustrated by arrow) – it is clear and apparent that there are no signs in view for the driver to see.
See Fig.1 and 2.
https://imgur.com/zQMLygq
https://imgur.com/1GODoUA




Gemini Parking Solutions claims that the terms and conditions are clearly displayed on the signs on-site but it is clearly not the case.

Fig.3 below shows the path the car would need to have taken to arrive at the spot in question (one – way traffic coming towards camera shot) – as you can see, anyone driving up here would find it extremely difficult to spot any signs.

Fig.3
https://imgur.com/QX8kxho


Furthermore, it is unclear and confusing to where the terms and conditions applies throughout the area. There are no signs to the entrance of the car park to notify drivers and signs are located in obscure and hard to see places.


Fig. 4 illustrates the approach to what is presumably the start of the parking areas.
Note the parking on the left with no marked bays nor signs visible. On further investigation, most of areas and neighbouring car parks inside this large park do not have such terms and conditions as per quoted by this operator.


https://imgur.com/Ugues13

Fig.5 shows the area where marked bays start - presumably the entrance to parking area. Again no
signs can be seen in the line of view.

https://imgur.com/ksperQu



I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

+++++Standard template wording from here++++++++++


4. The operator has not shown that the individual who it is pursuing is in fact
the driver who was 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. I
am the keeper 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 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.''



5. 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).


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 Code of Practice) and basic information such as the land
boundary and bays where enforcement applies/does not apply. Not forgetting
evidence of the various restrictions which the landowner has authorised can give
rise to a charge and of course, how much the landowner authorises this agent to
charge (which cannot be assumed to be the sum in small print on a sign because
template private parking terms and sums have been known not to match the
actual landowner agreement).


Paragraph 7 of the BPA Code of Practice 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.


6. Grace Period: BPA Code of Practice – non-compliance
The NTK fails to state the period of contravention and the hence Operator has not complied with BPA code 13.


The BPA’s Code of Practice states (13) that there are two grace periods: one at
the end (of a minimum of 10 minutes) and one at the start.


BPA’s Code of Practice (13.1) states that:
“Your approach to parking management must allow a driver who enters
your car park but decides not to park, to leave the car park within a
reasonable period without having their vehicle issued with a parking
charge notice.”


BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide
if they are going to stay or go. If the driver is on your land without
permission you should still allow them a grace period to read your signs
and leave before you take enforcement action.”


BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car
park after the parking contract has ended, before you take enforcement
action. If the location is one where parking is normally permitted, the
Grace Period at the end of the parking period should be a minimum of 10
minutes.”


BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to
read the terms and conditions before they enter into the contract with you.
If, having had that opportunity, they decide not to park but choose to leave
the car park, you must provide them with a reasonable grace period to
leave, as they will not be bound by your parking contract.”


The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the
car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this
case (it should be made clear - a contract was never entered in to), it is
reasonable to suggest that the minimum of 10 minutes grace period stipulated
in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s
Code of Practice.


Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):


“The BPA’s guidance specifically says that there must be sufficient time for
the motorist to park their car, observe the signs, decide whether they want
to comply with the operator’s conditions and either drive away or pay for a
ticket.”
“No time limit is specified. This is because it might take one person five
minutes, but another person 10 minutes depending on various factors, not
limited to disability.”


Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus
ParkingEye – Tower Road, Newquay) which was successful on the grounds that
the assessor believed 11 minutes was a “reasonable grace period” and that “by
seeking alternate parking arrangements, the appellant has demonstrated that he
did not accept the conditions of the parking contract.”




This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the
current BPA CoP (not a maximum - a minimum requirement) means to any
reasonable interpretation that seconds are de minimis and therefore not taken
into account – certainly an allegation of under eleven minutes (as is the case
here) is perfectly reasonable.


As stated earlier in this section, whilst 13.4 does not apply in this case (as a
contract was never entered in to), it is not unreasonable to suggest that
clarification of this time period in relation to 13.4 also goes some way to clarifying
the terms “reasonable period” and “reasonable grace period” stated in 13.1 and
13.2 respectively of the BPA’s Code of Practice.


If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a
car park after a period of parking, it stands to reason that at least the same period
of time is reasonable to also enter a car park, locate (and read) terms and
conditions decide not to enter into a contract and then leave the car park.

Spine

OK - I think I'm almost there - Is there too much signage part?
Perhaps I should reduce the no. photos?

Coupon-mad

I'll read it when I come out from behind the sofa, once you remove this:

I, the registered keeper of this vehicle, received a letter dated xxxx acting as a notice to the registered keeper. My appeal to the Operator – Gemini Parking Solutions – was submitted and acknowledged by the Operator on xxxx and rejected via a letter dated xxxxx. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

...and this is why:

https://forums.moneysavingexpert.com/discussion/comment/75888733#Comment_75888733

https://forums.moneysavingexpert.com/discussion/comment/75682051#Comment_75682051

https://forums.moneysavingexpert.com/discussion/comment/75473592#Comment_75473592

https://forums.moneysavingexpert.com/discussion/comment/75343059#Comment_75343059

https://forums.moneysavingexpert.com/discussion/comment/75020783#Comment_75020783

Spine

Duly amended....:)

Coupon-mad

You've left a Brighton & Hove link in there by mistake, copied from the example. And because POPLA need teaching, add this to give them a virtual slap into the legal aspect of 'not relevant land' not being related to whether a PPC call the charge a penalty or not:

2. Not Relevant Land

The registered keeper cannot be held liable because this is Public owned land, which is defined in the POFA as 'not relevant land'. Regardless of the wording or date of any NTK, there can be NO keeper liability.

The Local Government Ombudsman ('LGO') understand this, but sadly, POPLA has recently demonstrated that you clearly do not.

Kindly do not fall into error in my case.

This has nothing to do with byelaws.

This has nothing to do with whether an operator says they are issuing 'parking charges' under contract. What they call the charge doesn't mean the land is suddenly 'relevant land' and that the Council/authority control can be ignored by POPLA!

I will explain - and it is vital Assessors understand why POPLA's reasoning in this case quoted below is completely flawed, and that POPLA continues to let the public down by being plain wrong about land that is owned/controlled by any 'statutory authority'. It is respectfully requested that your Lead Adjudicator Mr Gallagher should review the training regarding 'relevant land' and not ask your 'sector expert', but instead ask the LGO for input to avoid a repeat of this sort of terrible error in understanding of the POFA, as has been published in the public domain as an example of the very worst POPLA practice:

The operator has very clearly confirmed that the land they manage is not subject to statutory land and is operated under a contract.

The signage at the site states, “Up to 4 hours £4.00…xxxxxxxx Town Council is not involved in the parking management of this car park & cannot intervene in any disputes…If you enter or park on this land contravening the terms and conditions displayed, you are agreeing to pay: Parking Charge Notice (PCN) £100.”

If the site was relevant land, there would be a penalty charge notice referenced on the signage.

Whilst I acknowledge that the review of the contract with the operator does not specifically rebut or address your claim that the car park not being relevant land I am satisfied that there is sufficient evidence within the remainder of the appeal response to confirm that the site is relevant land and that parking charges are issued as contracted by the landowner and not penalty charges as would be issued within bylaws cases.

Further, the operator itself has highlighted within its own evidence the following in respect of the land it manages, “We note the Appellant’s reasons for appeal, and their belief that the car park is not ‘relevant land’, however, we would advise that these points are irrelevant and have been disproven on previous occasions through the POPLA process and other external challenges. The car park is relevant land as, for example, it has never been subject to statutory control, is maintained by xxxxxxx xxxx and operated under contract”.

I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct. POPLA is a one-stage process; there is no opportunity for you to appeal the decision.

The above beggars belief.

It is embarrassing for POPLA and utterly wrong and misinterprets the law in just about every sentence.

POPLA, please understand why you are wrong and stop making the same mistake.

Keepers cannot EVER be held liable on COUNCIL OR STATUTORY AUTHORITY land, regardless of what an operator's signs say, or what they call the PCN.

The POFA states:
''3(1)In this Schedule ''relevant land'' means any land (including land above or below ground level) other than - (a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

...2) In sub-paragraph (1)(b) — ''parking place'' has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act and ''traffic authority'' means each of the following—
(a)the Secretary of State;
(b)the Welsh Ministers;
(c)Transport for London;
(d)the Common Council of the City of London;
(e)the council of a county, county borough, London borough or district;
(f)a parish or community council''

This bay or space is indisputably, a ''parking place'' {with}...the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984:

https://www.legislation.gov.uk/ukpga/1984/27/section/32

which says at 32(4)(b)''parking place'' means ''a place where vehicles, or vehicles of any class, may wait''.

Thus it is a parking place which is provided or controlled by a statutory traffic authority (Greater London and the City of London).

Nothing says it has to be a parking place that's the subject of any statute or Order.

It just has to be ''provided by'' any Council or 'traffic authority' and GLAP is a statutory authority, established in 2000, following a local referendum, and derives most of its powers from the Greater London Authority Act 1999 and the Greater London Authority Act 2007. This location is indisputably under statutory control:

https://en.wikipedia.org/wiki/GLA_Land_and_Property

''The Greater London Authority (GLA), also known as City Hall, is the devolved regional governance body of London, with jurisdiction over both counties of Greater London and the City of London. It consists of two political branches: the executive Mayoralty (currently led by Sadiq Khan) and the 25-member London Assembly, which serves as a means of checks and balances on the former. Since May 2016, both branches have been under the control of the London Labour Party...

It is a strategic regional authority with powers over transport, policing, economic development, and fire and emergency planning. Three functional bodies — Transport for London, the Mayor's Office for Policing and Crime, and the London Fire Commissioner — are responsible for delivery of services in these areas. The planning policies of the Mayor of London are detailed in a statutory London Plan that is regularly updated and published.

The Greater London Authority is mostly funded by direct government grant and it is also a precepting authority, with some money collected with local Council Tax. The GLA is unique in the British devolved and local government system, in terms of structure...elections and selection of powers. The authority was established to replace a range of joint boards and quangos and provided an elected upper tier of local government in London for the first time since the abolition of the Greater London Council in 1986.''

[STRIKE]For the avoidance of doubt, Bromley Council/GLAP is a 'traffic authority'

https://www.brighton-hove.gov.uk/content/parking-and-travel/parking/traffic-regulation-orders

where it says ''......''[/STRIKE]

So, it is indisputable that this is NOT RELEVANT LAND, no matter what the operator says.

This is fully supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO'). POPLA is also an Ombudsman Service so why does your service not understand the law?

Please liaise with the LGO, who DO understand the law, and read the linked report (below).

Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, using a private contractor, when such land cannot be run in a contractual model way:

Full report:

https://www.lgo.org.uk/assets/attach/4521/REPORT%2017004169%20KENT%20CC.pdf

The LGO's decision was about Council-owned land an is on all fours with this appeal in all facts and detail.

In that case, the finding was specifically about whether land that is under statutory control can have a contractual PCN enforced where the operator tries to transfer liability to the registered keeper - and they cannot.

There is no mechanism to hold a registered keeper liable, and 'private' parking tickets cannot be issued on this basis on such land. And POPLA cannot tell a registered keeper appellant that they are liable, when any land is owned by an authority.

To use the Ombudsman's word, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, it is ''irrelevant'' whether or not the landowner is exercising its statutory control powers, or not.

Spine

You've left a Brighton & Hove link in there by mistake, copied from the example.

- ooops!

Final draft in PDF format with the above points incorporated:


https://drive.google.com/file/d/1LpvRsAnOtcWyxxcNUIOwR9SHeS6I8OD4/view?usp=sharing


Any comments/feedback before submission greatly appreciated!