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POPLA appeal - NTK after 181 days
cafu_k
Posts: 3 Newbie
I have received a NTK from LegionGroup 181 days after the PCN was originally issued. I have followed the advice in the newbies thread and appealed to Legion (had to do this via email as their online system wouldn't let me because it was so long after the PCN was issued!).
As expected they rejected and I am now putting together my POPLA appeal. I have put the following draft together and was hoping to get the thumbs up from the experts, or some suggested changes if needed:
Dear POPLA Adjudicator,
I am the registered keeper of vehicle XXXXXX and am appealing a parking charge from LegionGroup.
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. The 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
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 20/11/2018 and from my understanding the NTK was required to reach me by 15/01/2019. As can be seen in the attached photo the NTK was posted to me on the 20/05/2019, 181 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. The 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
....
(I intend to include the signage template but have omitted it her for brevity)
I am tempted to add something along the lines of the following at the end of section 4 after the signage template but would appreciate comments on if it is worth it or not:
`In addition to the above, the vehicle had a clearly visible, paid for, staff parking permit displayed. The small print on one of the signs states 'Staff are not permitted to park in the public car park' however there is no signage indicating that the car park the vehicle was parked in was indeed 'the public car park'. In fact, the same sign states it is 'Private Land'. With that being said, the alleged breach for which the PNC was issued, 'vehicle was parked in a restricted area.', is invalid.`
As expected they rejected and I am now putting together my POPLA appeal. I have put the following draft together and was hoping to get the thumbs up from the experts, or some suggested changes if needed:
Dear POPLA Adjudicator,
I am the registered keeper of vehicle XXXXXX and am appealing a parking charge from LegionGroup.
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. The 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
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 20/11/2018 and from my understanding the NTK was required to reach me by 15/01/2019. As can be seen in the attached photo the NTK was posted to me on the 20/05/2019, 181 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. The 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
....
(I intend to include the signage template but have omitted it her for brevity)
I am tempted to add something along the lines of the following at the end of section 4 after the signage template but would appreciate comments on if it is worth it or not:
`In addition to the above, the vehicle had a clearly visible, paid for, staff parking permit displayed. The small print on one of the signs states 'Staff are not permitted to park in the public car park' however there is no signage indicating that the car park the vehicle was parked in was indeed 'the public car park'. In fact, the same sign states it is 'Private Land'. With that being said, the alleged breach for which the PNC was issued, 'vehicle was parked in a restricted area.', is invalid.`
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Comments
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No need.I am tempted to add something along the lines of the following at the end of section 4 after the signage template but would appreciate comments on if it is worth it or not:
`In addition to the above, the vehicle had a clearly visible, paid for, staff parking permit displayed. The small print on one of the signs states 'Staff are not permitted to park in the public car park' however there is no signage indicating that the car park the vehicle was parked in was indeed 'the public car park'. In fact, the same sign states it is 'Private Land'. With that being said, the alleged breach for which the PNC was issued, 'vehicle was parked in a restricted area.', is invalid.`
You will win anyway due to the VERY late NTK!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Nine times out of ten these tickets are scams so complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but 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.You never know how far you can go until you go too far.0 -
I wouldn't add anything about a staff permit. POFA compliance is a much stronger point. Don't add anything that potentially gives away the driver and ruin the winning point.0
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Thanks for the advice. I will leave out the permit piece as suggested and submit as is.
Will update here with the POPLA outcome....0 -
POPLA has sent me the Operators evidence and counter to the above. Their statement was:
'THE AREA IN WHICH THIS VEHICLE IS PARKED IS FOR PATIENTS AND VISITORS AND STAFF ARE WELL AWARE THAT THEY ARE NOT ALLOWED TO PARK IN THESE BAYS (BLUE BAYS) AND THIS IS SAID IN THE TERMS AND CONDITIONS OF THEIR PERMITS AND ON APPLICATION THEY AGREE TO THIS WHICH ALL PERMITS BELONG TO THE TRUST. PARKING IN A PATIENTS AND VISITORS CAR PARK ALL VEHICLES MUST DISPLAY A VALID PAY AND DISPLAY TICKET WE HAVE CONTACTED THE TRUST AND THEY HAVE CONFIRMED THAT THIS VEHICLE REGISTRATION NUMBER IS ON THEIR DATAASE AS STAFF PERMITS.'
They have also attached generic, blank (none dated) parking permit request form for the NHS trust and apparent terms and conditions associated with that request form.
Can you please advise if I should comment on the operator evidence or not. If yes, would the following be reasonable?
1) None of the evidence provided proves who the person who parked the vehicle was. Therefore given the NTK was not compliant with Schedule 4 of the Protection of Freedoms Act 2012, there can be no keeper liability.
2) No evidence of Landowner Authority and compliance with the BPA CoP has been provided.
3) The generic blank permit application form and supposed terms and conditions are irrelevant as they do not show any signature or agreement or date.
4) The photographic evidence of the signage makes no mention or distinction of 'Blue Bays' vs 'White Bays'. The photographs also show that the markings of the bay the vehicle is parked in are barely visible and so badly worn away that they cannot be distinguished as blue or white. Also they have failed to show the visibility of signage from the position of the vehicle and upon entry of the car par.
Would appreciate any advice on this, thanks.0 -
Looks good. Remove the numbers as you are extremely limited on the amount of characters you can use. It's 2000 characters not words which throws some people.0
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