PCN received over 2 months after incident

D_P_Dance

If it on land covered by bye laws and they are claiming a breach of contract under contract law then, very likely, it is a scam. 

Have you familiarised yourself with the different rules which apply to keeper liability under POFA on bye laws land? 

Coupon-mad

Arrgghhh I really really wish people wouldn't appeal saying ''I was there to pick up a passenger'' (GRRR that as good as says you parked/were the driver of the car).

People who appeal like that ruin their 100% winning position!  COME HERE FIRST.

I am going to say include the POFA stuff anyway about the late NTK and byelaws land, and hope neither NCP or POPLA take your words as an admittance of driving...UNLESS you also chose 'driver' in the drop-down box when you appealed so rashly?  You didn't choose 'driver' did you?

jost

Coupon-mad said:

Arrgghhh I really really wish people wouldn't appeal saying ''I was there to pick up a passenger'' (GRRR that as good as says you parked/were the driver of the car).

People who appeal like that ruin their 100% winning position!  COME HERE FIRST.

I am going to say include the POFA stuff anyway about the late NTK and byelaws land, and hope neither NCP or POPLA take your words as an admittance of driving...UNLESS you also chose 'driver' in the drop-down box when you appealed so rashly?  You didn't choose 'driver' did you?

I can't remember. I may have done so. I definitely wasn't, as was on the train but as it was in my name I didn't want to cause other person problems as I haven't been well recently but really thought late trains would be reason enough. I am quite shocked that they can pursue a claim when its taken  two months to be notified. Surely that on it's own means it should be cancelled or doesn't this make the POFA act null and void if they don't comply with it. 

Coupon-mad

Ah, if you were NOT the driver then you need to say so, and how about proving you were in fact, the person on the train who was being picked up, not the driver.  Then you CAN use all the stuff about the POFA and that it is 'not relevant land'.

jost

Umkomaas said:

jost said:

I've been looking at POFA.  From what I can make of it these conditions have not been met.
Para 6.1a- no notice to driver given.
Para 61b  not met, in accordance with para 9.  9.4b and 9.5 notice to keeper not given within relevant period ie over 14 days
Para 7.1 no notice to driver as in para 6.1a
Para 8 .2 c  not met, as notice to keeper does not state notice to driver has been given
9.4b and 9.5 not met, as 64 days till notice received
Para 11.1 no evidence supplied of application made in relevant period

Is this enough to appeal successfully?
Thanks

Once the driver is identified, PoFA has disappeared from you like a puff of smoke - gone. There is absolutely no point in trying to pursue it as the legal escape it would have provided you. 

I said I was the driver when I wasn't and can prove that I had a train ticket. I was trying to do right by the other person. 

jost

Coupon-mad said:

Ah, if you were NOT the driver then you need to say so, and how about proving you were in fact, the person on the train wh was being picked up, not the driver.  Then you CAN use all the stuff about the POFA and that it is 'not relevant land'.

I have an email of my ticket.  I will look up relevant land. I'm really not well to be doing all this but can ill afford the fine. Thank you for all your help. 

Fruitcake

jost said:

Umkomaas said:

jost said:

I've been looking at POFA.  From what I can make of it these conditions have not been met.
Para 6.1a- no notice to driver given.
Para 61b  not met, in accordance with para 9.  9.4b and 9.5 notice to keeper not given within relevant period ie over 14 days
Para 7.1 no notice to driver as in para 6.1a
Para 8 .2 c  not met, as notice to keeper does not state notice to driver has been given
9.4b and 9.5 not met, as 64 days till notice received
Para 11.1 no evidence supplied of application made in relevant period

Is this enough to appeal successfully?
Thanks

Once the driver is identified, PoFA has disappeared from you like a puff of smoke - gone. There is absolutely no point in trying to pursue it as the legal escape it would have provided you. 

I said I was the driver when I wasn't and can prove that I had a train ticket. I was trying to do right by the other person. 

I thought you said you were picking someone up, not that you were driving. It is possible to be an occupant of the car and still be picking someone up.

For the PoPLA appeal, start by explaining you were on the train and were not driving. Include your ticket/purchase proof.
Use all the appeal points available to you from the third post of the NEWBIES, including non-PoFA compliant NTK and not relevant land (byelaws). 

Post your draft here for checking before you submit it.

jost

Fruitcake said:

jost said:

Umkomaas said:

jost said:

I've been looking at POFA.  From what I can make of it these conditions have not been met.
Para 6.1a- no notice to driver given.
Para 61b  not met, in accordance with para 9.  9.4b and 9.5 notice to keeper not given within relevant period ie over 14 days
Para 7.1 no notice to driver as in para 6.1a
Para 8 .2 c  not met, as notice to keeper does not state notice to driver has been given
9.4b and 9.5 not met, as 64 days till notice received
Para 11.1 no evidence supplied of application made in relevant period

Is this enough to appeal successfully?
Thanks

Once the driver is identified, PoFA has disappeared from you like a puff of smoke - gone. There is absolutely no point in trying to pursue it as the legal escape it would have provided you. 

I said I was the driver when I wasn't and can prove that I had a train ticket. I was trying to do right by the other person. 

I thought you said you were picking someone up, not that you were driving. It is possible to be an occupant of the car and still be picking someone up.

For the PoPLA appeal, start by explaining you were on the train and were not driving. Include your ticket/purchase proof.
Use all the appeal points available to you from the third post of the NEWBIES, including non-PoFA compliant NTK and not relevant land (byelaws). 

Post your draft here for checking before you submit it.

Ok, thanks, I will do.  Just to be clear I was on the train and was being picked up. As NTK letter received I replied as if I was the driver picking someone else up, merely stating train was late. I didn't mention I had a ticket. I know now I shouldn't have said this. I will post a reply later for further advice. Thanks again.

jost

Hi, Thanks for all your help so far.

I have also looked at BPA code of practice. I am concerned by this para:
21.8 While we have an expectation that operators will seek to use the POFA legislation, it is appreciated that there will be occasions where this might not be possible. If a nonPOFA Notice to Keeper is being issued it must be sent out as soon as possible and no later than 7 months after the original parking event

I have drafted this letter taken from others, I hope that is ok.  
Signage section is missing as I have to check and take photos tomorrow.
Regards relevant land, I think it is covered under Rail bylaws so my understanding is that POFA is not applicable anyway? In which case can they fall back on BPA para above? Many thanks!

Dear sirs

POPLA Ref ...................

NCP Parking PCN no .......................

A notice to keeper was issued on 27th March 2020 and received by me as the registered keeper of XXXXXX on 1st April 2020 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Diss Railway Station Car Park. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

From their rejection of my initial appeal, it appears that NCP are attempting to claim the charge is liable to them under contract terms and conditions of use.

I reject this as I was not the driver. In my initial appeal I did reply that I was the driver picking up a family friend who was delayed by a slow running train. This was an error on my part as I was the one being picked up. I have an email of my ticket reservation to prove I was on the train and was not the driver.

1) Non-compliance with POFA requirements and timetable set out in Schedule 4 of POFA 2012

Para 4.2a - not met as paras 6 and 11 are not met

Para 6.1a – not met, no notice to driver given in accordance with para 8

Para 6.1b – not met, no notice to keeper given in accordance with para 9

Para 7 – not met, no notice to driver given

Para 8.2c – not met, notice to keeper does not state that a notice to driver was given

Para 8.4 /8.5 – not met, notice to keeper not delivered within the relevant time period, and no notice to driver given

Para 9.4b – not met, notice to keeper is not delivered within the relevant time period.

Para 9.5 – not met, the relevant period is 14 days. The notice was received on day 64.

Para 11.1b – the application for the keepers detailed

2) Failed to comply with Keeper Liability POFA Shedule 4 para 9

If NCP want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and they have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). BPA code 26.1 also refers to this.

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 because the fact remains I am only 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.

3) Failed to comply with BPA Code of Practice relevant time period

I have had no evidence that NCP have complied with either POFA 11.1b or BPA Code 21.7 and 21.9 requirements for ANPR issued tickets to apply for keepers details within the relevant time period, so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 28th January 2020 and the notice to keeper was received 64 days later on 1st April 2020. NCP have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. They cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

Railway land is not 'relevant land' as it is already covered by statuary bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail Authority that this land is not already covered bylaws.
POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.
‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

5) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

No lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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."

6) Misleading and unclear signage ????????

7) No landowner contract nor legal standing to form contracts or charge drivers
I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give NCP Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, NCP Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require NCP Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that NCP Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles NCP Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to NCP Parking Ltd to prove otherwise so I require that NCP Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between NCP Parking Ltd and the owner/occupier, containing nothing that NCP Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.


I therefore request that POPLA uphold my appeal and cancel this PCN.

KeithP

I suggest the third paragraph of that PoPLA appeal be reduced drastically to something like:

I reject this as I was not the driver. I have an email of my ticket reservation to prove I was on the train and was not the driver.

And embed a picture of that email into your appeal pdf. Look at some of the other fully illustrated pdf PoPLA appeals linked from the third post of the NEWBIES thread.

Your point 6) can be copied directly from the third post of the NEWBIES thread.