ncp letter but i had paid!

MarcoM

Hi,


Here is my first try at drafting a popla appeal.


I received a fine by letter for parking at a private car park recorded via ANPR cameras. No windscreen ticket.


I had in fact paid by credit card to park and also the letter received to me as the keeper is six weeks after the event. I am the registered keeper and have not admitted to driving.


So I can appeal on a few counts the strongest of which are the payment made and the out of date letter pursuing the keeper.
However I am worried that if I admit there was a payment then a less than competent popla review could argue that I as the keeper was in the car that day and should know who drove.
Do you think I should remove the payment bit and just argue the case on the missed deadline to keeper, signage, landowner authority?


many thanks






Dear POPLA,

On the ……... issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number/ plate recognition system for as entering at…and leaving at… without payment”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

• A fee has been paid by credit card by a vehicle occupant for the period of parking.
• The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) and is not POFA compliant - …… own documentation (attached) shows that the event to which they refer occurred on …., but they did not issue the PCN until …., six weeks later.
• 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.
• …… lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
• 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
  Please see below for details
  
  1) A vehicle occupant paid the relevant parking fee via credit card at the pay machine. Credit card statement is attached showing …as the recipient and …as the date of payment. There must be a record of this payment in …payment systems matched against the vehicle registration number.

• This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and 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 are met as stated in paragraphs 5, 6, 11 & 12. ….. 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:-
  
  ’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
  
  The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
  
  The NTK sent to myself as Registered Keeper arrived six weeks after the alleged event. - see the attached PDF from ….with the ‘event date’ of …. and the issue date of ….
  
  Furthermore, this Notice to Keeper/PCN is clearly the operator's non-POFA alternative version (known as a 'GoldenTicket' by those who scrutinise these properly to assist victims, and I trust POPLA will see the difference). This alternative version PCN has none of the usual wording that ParkingEye use, nothing on the front or back about the POFA or any warning that liability will pass to me, the keeper. Ergo, it can't. Henry Greenslade made it clear when he was Lead Adjudicator for POPLA in 2015, that liability cannot pass to the keeper without the statutory wording as well as deadlines, being properly used.
  
  3)The operator has not shown that the individual who it is pursuing is in fact 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 … 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.''
  
  4. ……. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
  
  It is suggested that ….. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ….. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.
  
  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
  The BPA Code of Practice clearly states that:
  18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
  
  5. 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
  
  The signs are unremarkable and the wording of the terms and conditions is mostly illegible. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car!
  
  It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, whole areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one!!
  
  This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
  
  ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operator’s signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
  
  From the evidence I have seen so far, the terms appear to be displayed inadequately, in tiny letters. I put the operator to strict proof as to the size of the wording on their signs.
  
  The letters seem to be no larger than .50 font size going by this guide:
  
  deleted link
  
  As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
  
  deleted link
  
  ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.”
  
  So, a tiny letter height showing the terms is woefully inadequate in an outdoor car park.
  
  Indeed, in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
  (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
  (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
  
  Based on these points, it is believed that ….. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date and time of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
  The BPA Code of Practice clearly states that:
  18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
  
  Bearing this paragraph in mind, there was categorically no contract established between the driver and …. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. It is apparent that there was only 1 sign in the car park and was poorly located at the far side of the car park from the entrance and in fact the sign stating the toilets were not for public use was far more legible and prominent
  I have contested this with ….. with regards to their PCN reference REFERENCE, but they have written to me (dated …..) to say I have been unsuccessful and provided POPLA reference R/EFERENCE.
  
  I sincerely hope you are able to help me.
  
  Many thanks,

Coupon-mad

That's good but remove this as this is ONLY about P/Eye!:

Furthermore, this Notice to Keeper/PCN is clearly the operator's non-POFA alternative version (known as a 'GoldenTicket' by those who scrutinise these properly to assist victims, and I trust POPLA will see the difference). This alternative version PCN has none of the usual wording that ParkingEye use, nothing on the front or back about the POFA or any warning that liability will pass to me, the keeper. Ergo, it can't.

BUT KEEP THIS SENTENCE IN:

Henry Greenslade made it clear when he was Lead Adjudicator for POPLA in 2015, that liability cannot pass to the keeper without the statutory wording as well as deadlines, being properly used.

Credit card statement is attached

Cover the first name, address, account number and credit limit to hide some data.

MarcoM

Coupon-mad wrote: »

That's good but remove this as this is ONLY about P/Eye!:


BUT KEEP THIS SENTENCE IN:


Cover the first name, address, account number and credit limit to hide some data.

many thanks.

so i take it popla would not estrapolate that the keeper was not in the car at the time?

KeithP

MarcoM wrote: »

so i take it popla would not estrapolate that the keeper was not in the car at the time?

There is no-one at PoPLA that can even spell that word, let alone understand what it means.

BTW... it's spelt extrapolate.

1505grandad

Perhaps MarcoM is Italian

MarcoM

just an update on this I appealed to the parking company using the template on here and they have cancelled the ticket.

Coupon-mad

Brilliant!