One Stop Shop, Perry Barr (Park Watch): Not Parked Wholly Within Bay

Coupon-mad

You could add a point that there is no evidence the driver wasn't in the car as it doesn't appear to be parked and the photos are only taken from the back.  Unless they also have photos from the front?

mar_uk

Coupon-mad said:

You could add a point that there is no evidence the driver wasn't in the car as it doesn't appear to be parked and the photos are only taken from the back.  Unless they also have photos from the front?

This was taken after the ticket by the driver after the ticket was issued, Park Watch did not supply any photos to me (one stop shop did when I complained). I was putting below as a joke tbh  i.e the driver could have parked to find so-called signs - we don't have enough info to say when the photo was taken as Park Watch did not send any. :-) I have removed this section and also all photos now.

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.

BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

Coupon-mad

No, there is no grace period to park like that...

Umkomaas

Well it's not PoFA compliant as your starting point. Check the wording of the last paragraph of the first page of the NtK against the Protection of Freedoms Act 2012 (Schedule 4) paragraph 8. They cannot hold the keeper liable. 

Win this at POPLA on that very point. Get checking. 

mar_uk

Thanks Umkomaas, Just saw this now after I have decided to submit as original intended. They sent the NTK - dated 28th August 2020, 55th day. Realistically this should have been sent earlier so it is delivered on time, but when I submitted, it was 57th day and next day was Bank Holiday, so it was delivered today :-).

 

As to you point, can you explain lil more as I am sure I will be given more opportunity to add more to the appeal progresses including above point. Or is this point '2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge' take care of this - just need to re-iterate the point further when it progresses i.e. when Park Watch contest with their evidence?

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.

Where a charge is aimed only at a driver then, of course, no other party 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 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.

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.

Furthermore, the vital matter of full compliance with the POFA 2012 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 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.'

KeithP

Suggest you take that image down and repost it when you have obliterated your name and the second occurrence of the PCN number.

Umkomaas

As to you point, can you explain lil more as I am sure I will be given more opportunity to add more to the appeal progresses including above point.

Just as I said previously - check the paragraph that starts 'Please be warned: that if, ...... ' and compare with the Protection of Freedoms Act 2012 (Schedule 4), paragraph 8.  It does not meet the requirements, but as you have to defend it, you have to understand it. Handing everything out on a plate will not help the learning and understanding process in order to defend your position. Once you understand it, you will be able to confidently reproduce relevant examples from the NEWBIES FAQ sticky and/or other successful appeal points which argue No Keeper Liability. 

Coupon-mad

They've just 'please be warned we'll send debt letters' instead of 'please be warned you will be liable'!  haha!

mar_uk

Umkomaas said:

As to you point, can you explain lil more as I am sure I will be given more opportunity to add more to the appeal progresses including above point.

Just as I said previously - check the paragraph that starts 'Please be warned: that if, ...... ' and compare with the Protection of Freedoms Act 2012 (Schedule 4), paragraph 8.  It does not meet the requirements, but as you have to defend it, you have to understand it. Handing everything out on a plate will not help the learning and understanding process in order to defend your position. Once you understand it, you will be able to confidently reproduce relevant examples from the NEWBIES FAQ sticky and/or other successful appeal points which argue No Keeper Liability. 

I am reading this below and not clicking...Really sorry, any hints (a general one) or chance of a link that goes into this :-:smile: ?

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Coupon-mad

Not sure what you want to know.  Your NTK doesn't say that... anyone can see that.