Secure Parking Solutions NTK

IhateFines

Coupon-mad said:

I agree.  We can check the NTK if you show is both sides and redact your data and VRM/PCN ref but leave DATES in please.

NTK
https://imgur.com/a/LE2Id16

https://imgur.com/a/WE3DYi4

https://imgur.com/4nYctXY

Final Reminder

https://imgur.com/No3xSso

https://imgur.com/W9Ihqx4

Sorry for the delay

Coupon-mad

Non POFA on dates then.  Can't have arrived until the week commencing 14th February and that's not in time for keeper liability:

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(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; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

You will have to spell this out, day by day.  Had to arrive before Sunday 13th if you count the days starting with 31st Jan as day one.

IhateFines

Coupon-mad said:

Non POFA on dates then.  Can't have arrived until the week commencing 14th February and that's not in time for keeper liability:

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(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; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

You will have to spell this out, day by day.  Had to arrive before Sunday 13th if you count the days starting with 31st Jan as day one.

Thanks Coupon

Can I ask if they submitted their evidence on the 02/05/2022 would the 7 day period end today or tomorrow to submit my comments

KeithP

IhateFines said:

Coupon-mad said:

Non POFA on dates then.  Can't have arrived until the week commencing 14th February and that's not in time for keeper liability:

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(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; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

You will have to spell this out, day by day.  Had to arrive before Sunday 13th if you count the days starting with 31st Jan as day one.

Thanks Coupon

Can I ask if they submitted their evidence on the 02/05/2022 would the 7 day period end today or tomorrow to submit my comments

You have six days from the date of PoPLA sending you the PPC's comments.
I.e. the date of the email is day one of the seven.

IhateFines

Secure Parking Solutions Ltd stated:

The appellant has identified themselves as the keeper of the vehicle while they filed an appeal with the operator, as the notice has been issued as POFA compliant and given that no other driver has been nominated by the keeper they remain liable for the outstanding charge. Based on the appeal it is easy to deduce the keeper was the driver at the time of contravention as well.

At no point in any appeal was the driver identified and SPS have absolutely no evidence to suggest otherwise, they cannot simply deduce that the keeper was the driver and therefore, as will be described below the NTK is non POFA compliant and therefore SPS cannot hold the registered keeper liable.

Secure Parking Solutions Ltd stated:

The notice to keeper was posted to the keeper at the correct date to remain compliant with the POFA regulations, the notice and the postage certificates issued by the postage supplier are attached.

However, the NTK is non POFA compliant based on the dates. The NTK could not have arrived until the week commencing 14th February and for that reason there is no keeper liability:

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(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; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

SPS have provided a certificate of postage for the NTK which shows it was sent on the 10/02/2022 at 17:26:01 PM.

31/01/2022 Would be the 1st day after the contravention

1/02/2022 Would be the 2nd day after the contravention

02/02/2022 Would be the 3rd day after the contravention

03/02/2022 Would be the 4th day after the contravention

04/02/2022 Would be the 5th day after the contravention

05/02/2022 Would be the 6th day after the contravention

06/02/2022 Would be the 7th day after the contravention

07/02/2022 Would be the 8h day after the contravention

08/02/2022 Would be the 9th day after the contravention

09/02/2022 Would be the 10th day after the contravention

10/02/2022 Would be the 11th day after the contravention

11/02/2022 Would be the 12th day after the contravention

12/02/2022 Would be the 13th day after the contravention

13/02/2022 Would be the 14th day after the contravention

However, there is no postal service on a SUNDAY. The NTK was posted on the Thursday 10th February and 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; and for this purpose, “working day”. Therefore, the notice would have arrived at the earliest on Monday 14th February which would be the 15th day after the alleged contravention. As the Notice is non POFA on the basis of dates keeper liability cannot be established.

Furthermore, the evidence submitted SPC Ltd make it clear that they rely upon Vines v Waltham Forest LBC and clearly state "its immaterial if the appellant read our signage or not as long as the signage was in existence in the car park at the material time, which it was" However, this case related to clamping and was found that although it might reasonably be inferred that a motorist saw and understood the signs as a result of their numbers, size and location it was insufficient that an appellant had simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to the act of clamping if they parked in contravention to the notices. SPC have clearly misquoted this case as Miss Vine won and was held not to have seen unclear signs.

SPS Ltd rely upon 3 the following 3 signs:

https://imgur.com/a/PAx1mS3 sign 1

https://imgur.com/a/f9KnalO sign 2 

https://imgur.com/a/UrdCEnP sign 3

Also, in the original appeal against SPC Ltd they stated in their rejection letter: 
By parking or remaining in your vehicle in the Private Road/ car park, you are agreeing to the terms and conditions displayed around the private road / car park. if you do not agree with the terms and conditions that leave you liable, you should not have parked in the car park.

 There are 6 Terms and conditions signs on the private road and signs on both the side of the entrance and inside the store clearly states that:
 • All customers must register their full, correct vehicle registration into the terminal at reception on arrival.
• Customers parking only whilst on the premises.
It also states that " MOTORCYCLE AND DISABLE BADGE HOLDERS ARE NOT EXEMPT FROM PARKING CONDITIONS"

Whilst SCP Ltd have submitted their parking signage includes the above term NON of their submitted signs as outlined above show this term.

However, in Sign 3 SPC Ltd state "Vehicle parked within disable bay must display a valid  blue badge with all details clearly visible" which the occupant of the vehicle did. 

The contract between SPS Ltd is between them and the client who is listed as A & A INVESTMENT (UK) LTD. It is difficult to assess whether A&A are the owner, authorised agent, or legal occupier of the site. On this basis it is not clear whether SPS Ltd have any legal authority over this land

IhateFines

edit had to shrink to following due to POPLA 2000 character limit 

At no point in any appeal was the driver identified and SPS have provided no evidence to the contrary. They cannot simply deduce that the keeper was the driver.

The NTK is non POFA compliant as the NTK could not have arrived until the week commencing 14th Feb 2022 and for that reason their is no keeper liability. 

31/01/2022 Is 1st day after contravention

01/02/2022 is 2nd day 

02/02/2022 is 3rd day 

03/02/2022 is 4th day

04/02/2022 is 5th day 

05/02/2022 is 6th day

06/02/2022 is 7th day

07/02/2022 is 8th day

08/02/2022 is 9th day

09/02/2022 is 10th day

10/02/2022 is 11th day

11/02/2022 is 12th day

12/03/2022 is 13th day

13/03/2022 is 14th day (SUNDAY)

14/03/2022 is 15th day 

However, there is no postal service on a SUNDAY. The NTK was posted on Thursday 10th Feb and a notice sent by post is to be presumed, unless 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; and for this purpose, "working day" means any day other than a Saturday, Sunday or a public holiday in England and Wales. Therefore, the notice would have arrived at earliest on Monday 14th February 2022 which would be the 15th day after the alleged contravention and therefore SPS cannot enforce keeper liability. 

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

SPS rely upon Vines v Waltham but this has been seriously misquoted as Miss Vines won and was held not to have seen unclear signs and therefore was not liable.  

SPC have uploaded evidence of their signage but neither outlines the term they rely upon in the original appeal "MOTORCYCLES AND DISABLE BADGE HOLDERS ARE NOT EXEMPT FROM PARKING CONDITIONS" and therefore cannot be relied upon.  The contract does not outline whether A&A Investment are the owner, authorised agent or legal occupier of the site.

1505grandad

You keep stating "SPC" as well as SPS.

Coupon-mad

Miss Vine (not Vines).

IhateFines

The appeal was rejected but I'd like to point out this section of the adjudicators reasoning :

The operator also sent the NTK to be delivered within the relevant period which is the period of 14 days starting from the day after the contravention. The date of the contravention was 30 January 2022, therefore, the NTK needed to be sent to be delivered by 14 February. The NTK was issued on 10 February which I am satisfied would have given it the opportunity to be delivered by 14 February. It is entirely possible that the NTK did not arrive by this time due to a third-party issue concerning the appellant’s postal delivery service. It is outside of POPLA’s remit to assess any aspect of a third-party issue. As such, I will work on the basis that the operator issued the Notice to Keeper and posted this to the appellant’s address to be delivered within relevant period. Therefore, I am satisfied that the operator can transfer the liability for the unpaid parking charge to the registered keeper of the vehicle.

The operator provided proof that they sent the letter through a 3rd party company at 5PM on Thursday 10th February 2022 so how on earth can POPLA deem that the NTK was delivered in the relevant time period? Especially, after I pointed out that the NTK had to be delivered by the 13th February 2022 but POPLA say 14th February 2022? 

Is this not a fundamental error on POPLA's part?

Coupon-mad

Yes, and it's s miscalculation their Lead adjudicator has apologised for before.

It's buried somewhere in the POPLA decisions thread that the Lead Adjudicator apologised that an assessor was just looking at a calendar and counted on 14 days instead of treating 31st as day one, and counting on 13 days.

Maybe one of the regulars can find the apology. He promised the Assessors would be re-trained on that.  I recall we were saying 'POPLA can't count to 14'.

You can then quote it in a formal complaint to POPLA.