PCN - POPLA Stage

_0117_

Hi,

I received a PCN a few days ago, and have since been reading through the posts in this forum. I made the mistake of not doing this before I appealed to the operator (who rejected the appeal) but am hoping you can help me with the POPLA stage.

A brief summary of the backstory is that the driver entered a car park with ANPR cameras, decided not to park and left. This took a little while to do - around 15 minutes - so can see why a PCN was sent!

I've started writing the POPLA appeal letter based on others I've seen on the forum and am stating these reasons for my appeal:

1. The NTK arrived 16 days after the alleged parking offence.
2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3. The operator has not shown evidence that the current ANPR system is reliable, accurate or maintained.

I would love to know your thoughts on this and can post more details if required.

Thanks!

Fruitcake

Did you reveal the driver's identity in your initial appeal? If you did then point 1 is irrelevant. If you didn't then point 1 should be non-PoFA compliant NTK. However, you will also need to edit your post to remove information about who entered the car park. Only ever refer to The Driver and The Keeper who are two different people.

You also need,
Not the landowner
No valid contract or standing to issue charges.
Lack of grace periods. Note the plural and look them up in the BPA CoP.

Show us your draft before you submit it.

What happened when you complained to the landowner/retail manager?

Don't forget to complaint to your MP about this unregulated scam.

Le_Kirk

If you didn't then point 1 should be non-PoFA complaint NTK.

Better as: -

If you didn't then point 1 should be non-PoFA [strike]complaint[/strike] compliant NTK.

Also OP check the NEWBIE sticky post #3 for help on building a POPLA appeal or search the forum for winning POPLA appeals for your particular car park or PPC.

Fruitcake

Le_Kirk wrote: »

Better as: -
Also OP check the NEWBIE sticky post #3 for help on building a POPLA appeal or search the forum for winning POPLA appeals for your particular car park or PPC.

Thanks. Auto carrot doesn't pick out spilling mastikes when the wurd writ is a proper wurd.

_0117_

Thanks for the quick reply! Hopefully my post has been edited appropriately now.

No, I appealed as the keeper and didn't identify the driver - annoyingly I don't have the exact wording of the appeal as I didn't save a copy, and the operator's website doesn't allow an option to view.

I was considering adding "Not the landowner", so I'm glad you've suggested that.

I haven't complained to the landowner as of yet; I haven't found out who owns it but imagine this can be done quite easily.
A complaint to my MP will be made very soon!

Umkomaas

Please give us:

Date of parking incident

Date of issue shown on the NtK

Date of receipt.

If these prove the PPC hasn’t met strict PoFA requirements to hold the keeper liable, you will need to be able to drive it home with POPLA. Please read the following thread (particularly the later posts), so you can appreciate the issues you might face if your case comes before a clueless assessor.

https://forums.moneysavingexpert.com/discussion/6027099/fistral-beach-newquay-inital-parking-please-help

_0117_

Date of parking incident was 29/09/2019.
Date of issue on NtK was 11/10/2019 (Friday).
Date of receipt was 15/10/2019 (Tuesday), so two working days after issue.

Thanks for that link, coincidentally this is the exact same car park. That might not be surprising though if they're notorious for this behaviour.

There's some very useful stuff in that post, especially pictures of the signage. I'll read through it now and also hopefully post a draft of the POPLA appeal later today.

Umkomaas

_0117_ wrote: »

Date of parking incident was 29/09/2019.
Date of issue on NtK was 11/10/2019 (Friday).
Date of receipt was 15/10/2019 (Tuesday), so two working days after issue.

Yep, that’s the 16th day, so no keeper liability, but you’re likely to have to spell it out Janet and John stylee, in case you pull a dopey POPLA assessor.

The_Deep

[FONT=Times New Roman, serif]Nine times out of ten of these tickets are scams so consider complaining to your MP, it can cause the scammer extra work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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

_0117_

Here's a draft of the appeal (not allowed to post hyperlinks as a new user):
drive.google.com/file/d/1mcn7r_SRfMde8X_cNzcQkmrwofjWOpiZ/view?usp=sharing

Fruitcake - I've combined two of your additional points into one (point 4). Let me know if you think this should be two separate points. I've also left out the grace periods point as it was very clearly stated on their signs that the driver has ten minutes to decide whether to park or not. If you still think I should include it, do say.

I've written this using appeals that I've found on other threads as a starting point, so I'm going to re-read it a few times to make sure I've not left something silly in there!

_0117_

Posting the contents of the doc in the link above for ease of reading:

Appeal re POPLA Code: XXX v Initial Parking
Vehicle Registration: XXX POPLA ref: XXX

I am writing to you to lodge a formal appeal against a parking charge notice issued by Initial Parking, and sent to myself as registered keeper of the vehicle in question.

I contend that I am not liable for this parking charge on the basis of the below points:

1. The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act
   2012 (POFA).
2. The operator has not shown that the individual who it is pursuing is in fact liable
   for the charge.
3. The Operator has not shown evidence that the current ANPR system is reliable,
   accurate or maintained.
4. The Operator is not the landowner, and has no standing or authority to issue
   charges.

1. The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms
Act 2012 (POFA).
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. Initial Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9(4), 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 alleged parking contravention was recorded to have ended on 29/09/2019, and the NTK sent to myself as Registered Keeper was received on 15/10/2019 (it was issued two working days earlier on 11/10/2019). This is a total of 16 days from the alleged offence to reception of the NTK, which violates the requirement specified in paragraph 9(4).
This means that Initial Parking have failed to act in time for keeper liability to apply. Furthermore, it is clear that Initial Parking are aware of this due to their acknowledgment of both the event date, issue date, and requirement specified in paragraph 9(6):

“A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted...”

2. 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. I am the appellant 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, because they cannot use the POFA in this case, 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 – they will fail to show I can be liable because the driver was not me.
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:

“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.”

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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. The Operator has not shown evidence that the current ANPR system is reliable,
accurate or maintained.
Initial Parking have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Initial Parking has not provided any evidence to show that their system is reliable, accurate or maintained.


4. The Operator is not the landowner, and has no standing or authority to issue
charges.
This Operator is not the owner, nor has proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Initial Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Initial Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Initial Parking and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Initial Parking.
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name. In addition, Section 7.3 states:

“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.”

I put Initial Parking to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


This concludes my appeal.