Euro Car Park PCN received for rental car

Coupon-mad

Aren't their POPLA appeals shown on their threads about their case?  When you click on their username and find their threads, as opposed to 'replies'?

turgidstrop

Hi Coupon-mad, I did look there and I found the thread but I didn't see the actual appeal in either case

Coupon-mad

turgidstrop said:

Thanks Coupon-Mad.  I have been reading through POPLA appeals thread as suggested, and studying in particular VelvetyFrog and Kernewekjak but I haven't been able to locate their actual appeals.  Following the latters ciation however I have found a post from yourself in 2016 and have added the assessor's comments from Velvetyfrog's post for good measure and come up with the following:

The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA')

In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator's Notice to Hirer refers only to the Notice to Keeper, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA's particular attention to the section entitled 'Keeper Liability' in which Mr. Greenslade explains that:

'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.......
.......... However keeper information is obtained, 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'.

In addition, recent appeals to POPLA have been upheld under similar circumstances, here I quote Assessor Amy Smith:

The driver of the vehicle has not been identified. Therefore, the operator is pursuing the hirer for the PCN. As such I need to consult with the provisions of the Protection of Freedoms Act (PoFA) 2012. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the hirer of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to. Schedule 4 paragraph 13 (2) of PoiFA 2012 states: “ (2) The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given— (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement.” Having reviewed the operator’s evidence I can see that the operator has not provided any of the documents which are required under 13 (2) of PoFA 2012. As such, I am unable to determine that the operator has successfully transferred liability to the hirer of the vehicle and must allow this appeal as PoFA 2012 has not been met. Whilst I acknowledge that the appellant has raised other grounds, I have not considered them as PoFA 2012 has not been met. Accordingly, I must allow this appeal.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.

That reads well, as your first point.

Add the template appeal points from post #3 of the NEWBIES thread, about:
- the operator has not shown that the driver was the individual liable
- no landowner authority
- signs

turgidstrop

Thanks Coupon-Mad,

I have realised I've overshot the 28 window to appeal by a few days...eek.  But anyway, I have added the three other templates you suggested but now it's too big to post here!  Anything else you would change before sending?  Thanks.

Fruitcake

PoPLA codes last 32 days.

You can split your appeal across more than one post if you want the regulars to have a look at it before you send it.

turgidstrop

Ah thanks, Fruitcake...Also, where do I actually put the appeal on the popla website?  I'm there now but it seems to only allow 2000 characters as an "overall summary"? and then takes you to the submit part.  Is there another page after that or have I missed something?

Fruitcake

The NEWBIES tells you exactly how to submit a PoPLA appeal that is longer than 2000 characters. (I thought it was actually 2000 words for the appeal and 2000 characters for the PPCs evidence rebuttal.)

turgidstrop

Ah yes, sorry was rushing and missed that.  Ok appeal is as follows:

The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA')

In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator's Notice to Hirer refers only to the Notice to Keeper, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA's particular attention to the section entitled 'Keeper Liability' in which Mr. Greenslade explains that:

'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.......
.......... However keeper information is obtained, 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'.

In addition, recent appeals to POPLA have been upheld under similar circumstances, here I quote Assessor Amy Smith:

The driver of the vehicle has not been identified. Therefore, the operator is pursuing the hirer for the PCN. As such I need to consult with the provisions of the Protection of Freedoms Act (PoFA) 2012. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the hirer of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to. Schedule 4 paragraph 13 (2) of PoiFA 2012 states: “ (2) The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given— (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement.” Having reviewed the operator’s evidence I can see that the operator has not provided any of the documents which are required under 13 (2) of PoFA 2012. As such, I am unable to determine that the operator has successfully transferred liability to the hirer of the vehicle and must allow this appeal as PoFA 2012 has not been met. Whilst I acknowledge that the appellant has raised other grounds, I have not considered them as PoFA 2012 has not been met. Accordingly, I must allow this appeal.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.


The driver of the vehicle has not been identified. Therefore, the operator is pursuing the hirer for the PCN. As such I need to consult with the provisions of the Protection of Freedoms Act (PoFA) 2012. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the hirer of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to. Schedule 4 paragraph 13 (2) of PoiFA 2012 states: “ (2) The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given— (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement.” Having reviewed the operator’s evidence I can see that the operator has not provided any of the documents which are required under 13 (2) of PoFA 2012. As such, I am unable to determine that the operator has successfully transferred liability to the hirer of the vehicle and must allow this appeal as PoFA 2012 has not been met. Whilst I acknowledge that the appellant has raised other grounds, I have not considered them as PoFA 2012 has not been met. Accordingly, I must allow this appeal.

turgidstrop

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.''

turgidstrop

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