Company vehicle LBC Parking Eye

Fluff15

1505grandad wrote: »

POPLA rebuttal limited to 2000 characters - I make that over 2350.

Thank you, I can jig about with the characters. More concerned about the content if you have any comments

Coupon-mad

Fluff15 wrote: »

Hi all - my friend's appeal is unsuccessful, see below. I think it's a bad assessment, especially given the part about being sent in the relevant period - the final NtK was dated 04/07/19, even when PE were given hirers information on 24/05/19. From the appeal we sent to POPLA:

Under these regulations, Parking Eye were required to send this information to me (as Registered Keeper) within 21 days after receiving my details from the lease/hire company (xxxxx).
These details were provided on the 24/05/2019 (see image one below “proof of posting”) It was clear they received the previous correspondence as evidenced by their letter dated 04/06/2019 (images two a and b below), which details how Parking Eye are not liable for any invoice submitted by xxx as they had not entered into a contract with xxxxx.

Therefore I should have received the notice to keeper (NTK) no later than 17/06/2019. As this has not happened, Parking Eye cannot use POFA to assume keeper liability. There is more than one driver of the vehicle which they placed a PCN on.

Assessor summary:

The decision is final and there is no further opportunity to appeal.
If an appeal is Allowed, this means that your appeal has been successful and the operator should cancel the parking charge.
When an appeal is Refused, this means that your appeal has been unsuccessful, and to avoid further action by the operator, payment of the Parking Charge Notice should be made within 28 days.
POPLA is not involved with the payment or refund of charges and any questions should be directed to the operator.

The assessor has considered the evidence provided by both parties and has determined that the appeal be Refused 

The reasons for the assessor's determination are as follows:

Assessor summary of operator's case:
 The operator has issued the Parking Charge Notice (PCN) due to not gaining the appropriate permit/authorisation. 

Assessor summary of appellant's case:
 The appellant has raised several grounds of appeal. These are.
They state that the Notice to Keeper does not comply with the Protection of Freedoms Act (POFA) 2012.
They explain that the operator has not shown that the individual it is pursuing is the driver., They explain that the entrance signs are inadequately positioned and lit. They say that the signs are not prominent clear or legible from all parking spaces.
They state that there is no evidence of landowner authority.

The appellant has provided evidence to support the appeal. 

Assessor summary of reasons:
 When parking in a car park that is subject to specific terms and conditions, a motorist who uses the site does so under contract with the parking operator. The terms and conditions should be stipulated on the signs displayed within the car park to allow the motorist to decide if they wish to accept or not. In assessing this case I have reviewed the signage on site to confirm if the terms and conditions of parking were made clear.
The operator has provided photographic evidence of the signage that states, “Permit holders only…Visitors of Buckinghamshire College Group, Aylesbury Campus, Aylesbury College Day Nursery and University of Bedfordshire must enter their full, correct vehicle registration into the terminal at reception to be entitled to free parking…Failure to comply with the terms & conditions will result in a parking charge of £: £100…”.
The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 13:08, and exiting at 14:59, totalling a stay of one hour and 50 minutes. The operator has provided evidence to demonstrate a search on its online systems using the appellant’s vehicle registration, confirming that
The appellant has raised several grounds of appeal.

I have addressed these as follows:
They state that the Notice to Keeper does not comply with POFA.
They explain that the operator has not shown that the individual it is pursuing is the driver.
As the driver of the vehicle has not been identified, I must ensure that the operator has complied with the strict requirements of the POFA.
POFA is used to transfer liability for the PCN from the driver of the vehicle, to the keeper of the vehicle when the driver has not been identified. I must consider if the notice meets the requirements of POFA (Schedule 4, Paragraph 9(2), I am satisfied that the Notice to Keeper that was sent meets the requirements and was sent within the “relevant period”, as outlined within the act. As such, liability for the PCN is with the registered keeper of the vehicle, which in this case is the appellant.

They explain that the entrance signs are inadequately positioned and lit. They say that the signs are not prominent clear or legible from all parking spaces.
The British Parking Association’s (BPA) Code Of Practice states in section 18.3 “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
The operator has provided several images of the car park signs and I consider these signs are “conspicuous” and are “easy to see, read and understand”.
There is no requirement in the Code of Practice that the signs are visible from all parking spaces.

They state that there is no evidence of landowner authority.
Section 7.1 of the BPA Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.
In response to this ground of appeal, the operator has provided a witness statement, confirming that the operator has sufficient authority to pursue charges on the land.

I note that the appellant has provided images of the signage and correspondence with the operator. After reviewing these, I do not consider these to have any impact on the validity of the PCN.

Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the driver failed to register the vehicle for parking, and therefore did not comply with the terms and conditions of the car park.

As such, I conclude that the PCN has been issued correctly.
Accordingly, I must refuse this appeal. 
Kind regards

POPLA Team

liability for the PCN is with the registered keeper of the vehicle, which in this case is the appellant.

The Assessor has failed to consider the fact the appellant was not the registered keeper but was the hirer/lessee, thus POPLA need to consider the part the Assessor missed, namely para 13/14 of the POFA about Notice to Hirers.

Fluff15

Thank you Coupon-Mad, fantastic as always. I want to focus this letter namely on the incorrect application of what I (he) appealed on - my apologies if some of this is unclear, I have not been the one uploading the info so I have to keep checking backwards and forwards emails.

Timeline:
Original NTK received from PE to company - 23/02/19
Appealed to POPLA but timed out
LBC received - 9/5/19
Notified PE of leasee details - 24/05/19
NTK received to leasee - 04/07/19
Appealed to Parking Eye for POPLA code - 21/07/19
Appealed to POPLA and lost


Full section one of POPLA appeal to which I do not believe POPLA have applied correctly (company name redacted)

1 – Notice to Keeper does not meet PoFA2012 requirements
Keepers Liability and POFA 2012 as stated in paragraph 13(2) of POFA 2012:
"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) A copy of the hire agreement; and
(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:
(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

Under these regulations, Parking Eye were required to send this information to me (as Registered Keeper) within 21 days after receiving my details from the lease/hire company (redacted).
These details were provided on the 24/05/2019 (see image one below “proof of posting”) It was clear they received the previous correspondence as evidenced by their letter dated 04/06/2019 (images two a and b below), which details how Parking Eye are not liable for any invoice submitted by (redacted) as they had not entered into a contract with (redacted).
Therefore I should have received the notice to keeper (NTK) no later than 17/06/2019. As this has not happened, Parking Eye cannot use POFA to assume keeper liability. There is more than one driver of the vehicle which they placed a PCN on.

Not only this, contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

Furthermore, PoFA2012 Schedule4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”
At no stage do ParkingEye Ltd explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

ParkingEye Ltd NtK does not state any parking periods at all, it merely shows the vehicle entering and exiting. It is not in the gift of ParkingEye Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement -“period of parking” -and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, ParkingEye Ltd are not able to definitively state the period of parking. I require ParkingEye Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

And the POPLA assessor has only made reference to POFA 9.2, not POFA 14, which is key to the appeal:

They state that the Notice to Keeper does not comply with POFA.
They explain that the operator has not shown that the individual it is pursuing is the driver.
As the driver of the vehicle has not been identified, I must ensure that the operator has complied with the strict requirements of the POFA.
POFA is used to transfer liability for the PCN from the driver of the vehicle, to the keeper of the vehicle when the driver has not been identified. I must consider if the notice meets the requirements of POFA (Schedule 4, Paragraph 9(2), I am satisfied that the Notice to Keeper that was sent meets the requirements and was sent within the “relevant period”, as outlined within the act. As such, liability for the PCN is with the registered keeper of the vehicle, which in this case is the appellant.

I also want to address the fact that PE provided only a witness statement. I addressed this in the POPLA appeal, and during the rebuttal mentioned a case law - because the case law was only mentioned in the rebuttal does that class it as new evidence? From the rebuttal:

. PE has provided a witness statement in Sec:G of the evidence pack instead of the relevant contract. A witness statement is not sufficient, & PE have not shown vital information such as charging days/times, exemption clauses, & land boundary/bays where enforcement applies/does not apply as shown in VCS v Ibbotson 1SE09849 S!!!!horpe 16/05/12. PE have breached the BPA:CoP s7 & failed to demonstrate their legal standing

Will these two points be okay to appeal to lead adjudicator on, or should I keep it to just the one? The first is the strongest and is clear the timescales have not been met, nor was it addressed by the assessor.

MistyZ

It very much looks like the assessor has missed that this was a hire car appeal.

It's no excuse, but I would have emphasised 'hirer' much more in the POPLA appeal. As it was, keeper and hirer were used as interchangeable terms. Yes the hirer is the day to day keeper, but using both dilutes the key message: HIRE CAR!

So bearing this in mind, in case POPLA assessors' failings are infectious, really lay it on the line in your appeal / complaint e.g. 'The appeal concerned a hire car of which I was the hirer and the POPLA appeal clearly stated that Parking Eye did not send the documents specified in paragraph 13(2) of PoFA 2012 to me as hirer...... etc.'

Fluff15

Thank you Misty! I have drafted the below:

Dear John Gallagher

In relation to the POPLA appeal of Verification Code: xxxxxx, I received notification that this appeal has been rejected by case worker xxxxx.

On looking at the detail of the rejection letter, it is clear that the crucial points made in my rebuttal have not been considered nor addressed correctly. I will focus on two parts of my appeal which I feel have not been addressed, namely that the appeal concerned a hire car of which I was the hirer and I had appealed with keeper liability as hirer under paragraphs 13 and 14 of POFA 2012 which was not considered; and also that POPLA have incorrectly addressed landowner authority. From my appeal:

Keepers Liability and POFA 2012 as stated in paragraph 13(2) of POFA 2012:
"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—
(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) A copy of the hire agreement; and
(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:
(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.
Under these regulations, Parking Eye were required to send this information to me (as Registered Keeper) within 21 days after receiving my details from the lease/hire company (redacted).

These details were provided on the 24/05/2019 (see image one below “proof of posting”) It was clear they received the previous correspondence as evidenced by their letter dated 04/06/2019 (images two a and b below), which details how Parking Eye are not liable for any invoice submitted by (redacted) as they had not entered into a contract with (redacted).

Therefore I should have received the notice to keeper (NTK) no later than 17/06/2019. As this has not happened, Parking Eye cannot use POFA to assume keeper liability. There is more than one driver of the vehicle which they placed a PCN on.

Parking Eye sent the final notice to keeper to the hirer on 04/07/19, which is 42 days after they were notified of the hirers details. As you can see this is way beyond the timescales that Parking Eye are bound to under POFA 2012 for transferring liability to the keeper as a leasee/hirer of a vehicle.

Your assessor xxxxxx has made no mention of keepers liability and POFA 2012 as stated in paragraph 13(2) of POFA 2012 and Paragraph 14(2) and (3) of POFA 2012 to which I have clearly appealed under; in fact it was the first appeal point! Your assessor has only made mention of schedule 4 paragraph 9(2), and completely ignored the first issue of transferring liability as a hirer/lease of a vehicle.

Not only this, your assessor xxxxxxxxx has been inconsistent in applying landowner authority in line with past POPLA allowed appeals and presiding cases. From my appeal:

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). Also given the nature of the site, as the entrance is shared by both a school and a college, I require the operator to prove exactly where the ‘relevant land’ begins and ends.

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:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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

Your assessor has stated:

In response to this ground of appeal, the operator has provided a witness statement, confirming that the operator has sufficient authority to pursue charges on the land.

As it has been shown in in VCS v Ibbotson, case reference 1SE09849, the judge stated that a witness statement is not sufficient in lieu of a signed contract. Why does your assessor believe that it is sufficient authority?

The witness statement provided does not meet all the points within Paragraph 7 of the BPA code of practice. Namely, there is no evidence within this witness statement that covers point 7.2, nor does it meet any of the requirements of the written authorisation within 7.3. How can your assessor claim that the witness statement is sufficient evidence of authority, when it does not meet hardly any of the requirements set by the BPA Code of Practice?

Not only this, in regards to a recent POPLA appeal which was allowed for lack of landowner authority dated, assessor Michael Pirks stated:

[the] document does not include signatures by both parties, setting an agreement in place. I would expect the operator to provide a copy of the contract and clear boundaries which have bit been provided. If the operator was to provide with a landowner agreement document which outlines the full terms of the site and was signed by both the operator and landowner, this would help me determine that the operator had full landowner authority to manage the site. As such, I am not satisfied that the operator has sufficient authority. I cannot confirm that the PCN has been issued correctly.

The witness statement in my case has not been signed by the operator and landowner, there is only one signature, which was a key requirement in Michael Pirks in deciding whether the operating company had sufficient authority. If the appeal was allowed on this basis, why was this not considered in my case? Xxxxx decision shows a lack of consistency at POPLA.

As the above states, the appeal sent to POPLA focuses on an appeal as a hirer/leasee of a vehicle under paragraphs 13 and 14 of POFA 2012, to which I do not feel was considered by assessor xxxxx. I also feel that there has been a lack of consistency at POPLA with regards to assessing landowner authority. Please could you evaluate my appeal?

Yours sincerely,

MistyZ

How about inserting Coupon-mad's succinct sentence as a short stand alone paragraph instead of the one that starts 'As the above state, the appeal sent ..' This is the one:

'The Assessor has failed to consider the fact the appellant was not the registered keeper but was the hirer/lessee, thus POPLA need to consider the part the Assessor missed, namely para 13/14 of the POFA about Notice to Hirers'.

And then another short paragraph re. landowner authority. I think perhaps that could be more assertive. Seems to me there has been a lack of rigour as well as inconsistency.

The_Deep

[FONT=Times New Roman, serif]PE lost in court recently due to poor signs, read this[/FONT]
[FONT=Times New Roman, serif]
[/FONT] [FONT=Times New Roman, serif]https://forums.moneysavingexpert.com/discussion/5957364/first-parking-eye-appeal-unsuccessful[/FONT]

Fluff15

MistyZ wrote: »

How about inserting Coupon-mad's succinct sentence as a short stand alone paragraph instead of the one that starts 'As the above state, the appeal sent ..' This is the one:

'The Assessor has failed to consider the fact the appellant was not the registered keeper but was the hirer/lessee, thus POPLA need to consider the part the Assessor missed, namely para 13/14 of the POFA about Notice to Hirers'.

And then another short paragraph re. landowner authority. I think perhaps that could be more assertive. Seems to me there has been a lack of rigour as well as inconsistency.

Thank you Misty - so we are thinking short and sweet - removing what I included in my appeal and just including key information such as dates and relevant cases?

On looking at the detail of the rejection letter, it is clear that the crucial points made in my rebuttal have not been considered nor addressed correctly. The Assessor has failed to consider the fact the appellant was not the registered keeper but was the hirer/lessee, thus POPLA need to consider the part the Assessor missed, namely para 13/14 of the POFA about Notice to Hirers.

The details of the hirer/lessee were provided on the 24/05/2019. It was clear they received the previous correspondence as evidenced by their letter dated 04/06/2019. Therefore I should have received the notice to keeper (NTK) as the hirer no later than 17/06/2019. As this has not happened, Parking Eye cannot use POFA to assume keeper liability.

Parking Eye sent the final notice to keeper to the hirer on 04/07/19, which is 42 days after they were notified of the hirers details. As you can see this is way beyond the timescales that Parking Eye are bound to under POFA 2012 for transferring liability to the keeper as a leasee/hirer of a vehicle.


Not only this, your assessor xxxxxxxxx has been inconsistent in applying landowner authority in line with past POPLA allowed appeals and presiding cases.

As it has been shown in in VCS v Ibbotson, case reference 1SE09849, the judge stated that a witness statement is not sufficient in lieu of a signed contract. The witness statement provided does not meet all the points within Paragraph 7 of the BPA code of practice.

Not only this, a recent POPLA appeal which was allowed for lack of landowner authority, where assessor Michael Pirks stated:

[the] document does not include signatures by both parties, setting an agreement in place. I would expect the operator to provide a copy of the contract and clear boundaries which have bit been provided. If the operator was to provide with a landowner agreement document which outlines the full terms of the site and was signed by both the operator and landowner, this would help me determine that the operator had full landowner authority to manage the site. As such, I am not satisfied that the operator has sufficient authority. I cannot confirm that the PCN has been issued correctly.

The witness statement in my case has not been signed by the operator and landowner, there is only one signature, which was a key requirement in Michael Pirks in deciding whether the operating company had sufficient authority. If the appeal was allowed on this basis, why was this not considered in my case? Xxxxx decision shows a lack of consistency at POPLA.

MistyZ

To answer the short & sweet question, I'm not sure ... I haven't critiqued what you've written word by word, but I think John Gallagher should be able to handle a long letter and that you should be thorough.

The main thing I'm getting at is that key points should be really clear - so you can be more emphatic, use italics for emphasis, keep issues separate in their own paragraphs .... that sort of thing.

Obviously you write well & this is just a question of style really, but having had one idiot fail to get what you were saying, it'd be as well to be as crystal clear as possible in further communications!

Edna_Basher

I suggest you include a short paragraph to remind Mr. G of what he has promised on POPLA's website, i.e.

After a robust accreditation process, assessors have regular quality assurance checks on their work to ensure that processes are being followed correctly and decision accuracy remains high. Your appeal will be independently reviewed by one of our professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice

Any reasonable, competent professional should understand all aspects of the most relevant of laws (i.e. Schedule 4 of POFA). By considering only Paragraph 9 and completely overlooking Paragraph 14 concerning hire vehicles, this particular assessor has fallen substantially short of the standard expected of a reasonable, competent professional.

POPLA assessors are making this same basic mistake over and over again and something is clearly going wrong with POPLA's regular quality assurance checks.