Ocean Parking - not issuing NTK following POFA

withnailandI

Hi All,

Great forum and advice....I just wish I'd found it much earlier. I've been trawling through the forum but could find an obvious answer to my question.

Basically, if the abovementioned company say they didn't issue a NTK using POFA 2012, then does that mean they don't need to send it within the 14 days in order for it to be valid.

For context, I'd sent an appeal to them (pasted below if it helps) and one of the 30 bullets they replied with was just that:

• Ocean Parking have not issued this Notice to Keeper using POFA 2012, therefore your claims regarding this are irrelevant.

I can't see how that is appropriate - to say they're not following what is essentially legislation so they can basically do what they want. 

Have I got the wrong end of the stick. Or am I within my rights to say they didn't follow POFA and thus their parking charge notice is invalid.
This was my main appeal to be honest - so if I'm wrong then it looks like I'm liable and may need to pay.

Thanks in advance
-----------------------------------------------------------------------------------

Original Appeal (I'd wish I'd seen the forum beforehand as I might have intimated that I was the driver):

I would like to appeal the PCN Reference  XXXXXX for 2 reasons.

The first reason is that I was customer of the McDonalds restaurant and had parked the car in order to make a purchase. I was not parked in the location without being a patron of the site.

Whilst in the diner I had asked an employee whether I was able to park the car without being charged whilst I ate, to which the employee confirmed that it was possible in the allocated spaces.

I note that in the attached Car Park Management Plan ADL Reference: 3071/23A August 2018, Section 3 Paragraph 3 specifies that the exceptions to the parking restrictions include McDonalds spaces 46 to 54 and grill spaces 13 and 14.

These actual spaces are not specifically well marked or identifiable, and as such it is not possible to easily identify which spaces were allocated to McDonalds and exempt from the parking restrictions, especially in the evening. Having mentioned to the McDonald’s employee where I was parked; even they said that it was acceptable.

The second reason that I am contesting the Parking Charge Notice is that whilst the date of the purported contravention was Saturday 19th Feb 2022, the issue date of the notice to keeper was 29th March 2022 and was not received at my address until the 7th April. It should be noted that a notice to driver was not given at the time of parking.

This time frame for which the Notice to Keeper was issued was 38 days which is in excess of the required 14 days relevant period (from the following day when the parking ended) as specified in Paragraph 9 (sub-paragraph 4 and 5) of Schedule 4 Protection of Freedoms Act 2012. Since the notice was given outside of the required time-frame, I believe that the Parking Charge Notice is void.

 For these two reasons, I kindly request that the Parking Charge Notice is hereby cancelled.

Kind Regards

Coupon-mad

If you implied you were driving, then the argument is irrelevant and the 14 days means nothing.

The PCN isn't void. It can hold a driver liable. 

Not that you'd be paying it!

A registered keeper would have had an appeal argument that there is no keeper liability.  100% slam dunk win for a keeper.  That's why we have the template appeal, to stop people doing what you did.

Not the end of the World - and I'd always do the POPLA appeal as keeper, including the POFA point, and hope POPLA don't think you outed yourself as driver.

withnailandI

Thanks for such a prompt reply Coupon-mad. 

So ignoring any driver liability for the moment. Are you saying that my required 14 days argument for notice to keeper is valid - even if the company say they didn't issue the PCN according to POFA 2012.

And secondly, if I did go ahead with the POPLA appeal, wouldn't they ask to see the appeal I originally sent to the parking company (information in my first post). I don't actually say I was the driver but it does read and imply I may have been driving.

So POPLA would see this info anyway and could agree that I was the driver....I'm just trying to weigh up if it's worth a POPLA appeal because the charge increases from £60 to £100 if I lose.

Thanks

KeithP

withnailandI said:

Are you saying that my required 14 days argument for notice to keeper is valid - even if the company say they didn't issue the PCN according to POFA 2012.

If the company are not planning to try and transfer any driver's liability to the keeper, they have up to seven months to deliver a Notice to Keeper to the keeper.

Coupon-mad

Coupon-mad said:

Not that you'd be paying it!

I think you missed the above, when you said the below.

..I'm just trying to weigh up if it's worth a POPLA appeal because the charge increases from £60 to £100 if I lose.

It doesn't. Because you don't PAY.

Of course the fact it's a non-POFA NTK is a valid argument against keeper liability.  Slam dunk.

withnailandI

Coupon-mad said:

I think you missed the above, when you said the below.

..I'm just trying to weigh up if it's worth a POPLA appeal because the charge increases from £60 to £100 if I lose.

It doesn't. Because you don't PAY.

Of course the fact it's a non-POFA NTK is a valid argument against keeper liability.  Slam dunk.

Thanks for the confirmation. I'll be sending through a POPLA  appeal along the lines of this based on the template in the newbie section. Please let me know if this is completely off the mark:
---------------------------------------------------------------------------------------------

Dear Sir or Madam,

 Ticket number: xxxxxxxx

Vehicle registration number: xxxxxxxxx

I was issued with a parking ticket on xxxxxxx but I believe it was illegally issued. I will not be paying the demand for payment for the following reason:

• The recovery of unpaid parking charges is within the scope of Schedule 4 of the Protection of Freedoms Act 2012 (hereon the POFA) 
  
• The notice to keeper is incorrect and failed to meet the obligations of the POFA .

No notice to driver (by handing to the driver or being fixed to the vehicle) was given by the claimant prior to removal of the vehicle from the relevant land at the end of the alleged period of parking.

According to paragraph 6 (1) (b) of the POFA, where a notice to driver has not been provided, the requirements of paragraph 9 of the POFA apply.

Paragraph 9 (4) (b) of the POFA states that the notice to keeper must be sent by post to the current address of the keeper, so that it is delivered within the relevant period of 14 days beginning with the day after that on which the specified period of parking ended (as detailed in Paragraph 9 (5)).

The notice to keeper was issued on xxxxxxxx, 38 days after the alleged period of parking on the xxxxxxx and received on the xxxxxxx (47 days later).

Since the parking charge notice to keeper was not served within the 14 relevant period as specified in the POFA Paragraph 9 (5) and is not legally compliant or enforceable.

Please find attached the parking charge notice for your consideration.

Yours faithfully 

Umkomaas

I was issued with a parking ticket on xxxxxxx but I believe it was illegally issued

Nah.  That means they broke the law.  I'd use the word 'inappropriately'. 

While @Coupon-mad has suggested trying the 'no keeper liability' angle, the ice you're on in that regard is pretty thin (given your tacit inference that you were the driver), so you'll need an extremely dozy ex-nail technician assessor to miss that and find for you. They are about, but relying on the one single appeal point is like playing reverse Russian roulette - only one empty chamber!

You therefore need a bank of other appeal points - all of which are included in the NEWBIES FAQ Announcement, third post - to bolster your position. Signage, authority to form contracts with car park users, landowner contract, BPA Code of Practice breaches are among the usual points to add. 

Coupon-mad

Yep.  If you read the 3rd post of the NEWBIES thread you will see examples of POPLA appeals and they are 5 times longer than that.

withnailandI

Thanks @ Umkomaas and @ Coupon-mad for the advice. I will draft a new reply based on that as I have another few days before it needs to be submitted.
I can potentially add landowner contract, maybe unmarked spaces (can't get photos unfortunately) and BPA code.

But I am beginning to think that I should just pay up - £60 hurts but £100 feels even worse if I lose the appeal. And from what I'm hearing, it doesn't sound very bullish and I could be on shaky ground.

Regardless keep up the amazing work though.

Coupon-mad

What?  You don't pay if you lose at POPLA.  Chances are you will win or they'll give up, if you throw the kitchen sink at it.

withnailandI

Just wanted to give an update and say that the charge has been withdrawn, immediately after the POPLA appeal went in.
The caveat is that I'm not sure if it was due to the POPLA appeal or because the parking operator cancelled it at the behest of a retailer...(in this instance it was McDonalds - though they weren't actually the landowner).

I say this because the withdrawal by the operator happened shortly after the POPLA submission - I don't think they would have had enough time to even actually read it. Or maybe they just give up by default on a POPLA appeal.

However, for information I based the appeal on:

1. The notice to keeper does not comply with Schedule 4 of the Protection of Freedoms Act 2012 (hereon the POFA 2012)

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. The signs in this car park are not prominent, clear or legible from all parking spaces

4. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

5. The charge is disproportionate and not a genuine pre-estimate of loss

I added the following, to have additional points to be addressed....I'd be interested to know thoughts - was this wrong to do ?

• For point 1, I added the following point about them stating they didn't issue NTK according to POFA.

" Ocean Parking have failed to act in time for keeper liability to apply. Furthermore, it is clear that Ocean Parking know this because they have responded to my initial appeal stating that: “Ocean Parking have not issued this Notice to Keeper using POFA 2012, therefore your claims regarding this are irrelevant”.

In stating that they have not issued the notice to keeper using POFA 2012, they are also not following the guidelines defined in the BPA Code of Practice, a scheme and association of which they are a member as illustrated by the logo on their parking charge notice. "

• For point 5, I basically listed Section 13 of BPA code for grace periods and stated (not verbatim, some missing excerpts):

" Consideration of a grace period of 5 minutes minimum at the beginning of parking (Paragraph 13.1) and at least 10 minutes at the end of a parking event (Paragraph 13.3), the total potential minimum time that a car may be in permitted in the parking location without charge is 25 minutes (including the 10 minutes allowed for free parking).

Given the total amount of free time and grace period of 25 minutes, I do not believe that the parking duration of 36 minutes and a little over 11 minutes past the allowed free time, justifies a £100 parking charge. This amount cannot be a justifiable pre-estimate of loss to your company or the landowner considering parking for 1 hour is only charged at £1 and for 24 hours only charged at £4.50. "

Anyway, thanks for everyone's contributions. Good result for me - though it may have just been down to the retailer requesting the cancellation