CIVIL ENFORCEMENT - PCN RECEIVED LATE BY MAIL

scx

signage is clear,  in the popla code letter CE said they sent the letter in time. what shall i use as proof for this?

Coupon-mad

"over 31 days after the alleged contravention occuring on 21/May/2022"

You must mean April?

Also typo 'occurring' if you don't mind us pointing these out to get it as good as it can be.

scx

Ok, is this solid enough as a final version ? 


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

Civil Enforcement Ltd Parking PCN no .......................

A reminder letter for a Parking Charge Notice was issued on 17th/May/2022 and received by me, the registered keeper of ........ on 26th/May/2022 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at the Chatham Rd Car Park xxxxx. I have to mention that i have not received any other letter before this one, wich arrived over 31 days after the alleged contravention occuring on 21/April/2022. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) CE Ltd not using POFA 2012

2) Amount demanded is a penalty

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

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

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)

6) Misleading and unclear signage

7) No landowner contract nor legal standing to form contracts or charge drivers

8) Photo evidence appears doctored

9) No Grace Period Given (Clause #13 BPA Code of Practice)

1) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

2) If CE Ltd want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and CE have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that CE Ltd have complied with these BPA Code requirements for ANPR issued tickets 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 21/April/2022 first correspondence, a reminder letter, arrived on 26/May/2022 all other correspondence missing, its their responsability to provide the other letters allegedly sent to me  .

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.  

3) 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

4) The alleged contravention, according to CE LTD, is in 'breach of the terms and conditions of use of the parking infrastructure' and signs are clearly displayed'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. CE Ltd are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

5) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give CE LTD s right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, CE 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 CE LTD Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that CE 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 CE 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 CE Ltd to prove otherwise so I require that CE 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 CA Ltd and the owner/occupier, containing nothing that CE Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

6) There were no photos at all of the vehicle  provided to me in the corespondence received  – most notably the time stamps and location coordinates. 

I would challenge CE Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge CE LTD that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

 

7) As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. I would argue does not breach a fair 'grace period', and therefore CE Ltd are in breach of the BPA Code of Practice.

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

Coupon-mad

The order of no 1 and 2 are switched in your headings.

Have you embedded some photos in your document, to support the unclear signs argument? CE signs usually have lots of words in larger letters and the £100 buried in very small print, which can win for you at POPLA.

scx

could i really argue this signange is not clear ?  will it be ok if i embed these 

Umkomaas

They don't compare favourably in terms of clarity with the ParkingEye signs in PE v Beavis which The Supreme Court held up as the exemplar against which other private parking signage can now be compared.  The level of the PE contravention charge is in sharp contrast to the virtually invisible CEL one. 

Place the PE sign against the CEL signage in your appeal  POPLA have been allowing appeals where the parking charge has been far from obvious  please read the POPLA Decisions sticky from the past couple of months (Euro Car Parks signage was seen as deficient, but the same principle will apply to CEL signage)  

Coupon-mad

I'd take a blurrier or more distanced pic of that middle one (or go find an even more cluttered sign in there) and point out the £100 is unreadable.

Don't use the first pic at all. Not the entrance sign.

Take your pictures in the same lighting conditions, not the middle of a sunny afternoon like now. Evening half light without a torch.

You have 33 days to use a POPLA code.

Have you completely battered to death, escalated to managers and utterly EXHAUSTED the landowner complaint easy cancellation approach - PLAN A and certainly in priority to trying useless POPLA?

scx

Hi Gents, will this do it as a final version ?


POPLA Ref xxxxxxx

Civil Enforcement Ltd Parking PCN no xxxxxxxxxx

A reminder letter for a Parking Charge Notice was issued on 17th/May/2022 and received by me, the registered keeper of KV07DFM on 26th/May/2022 for an alleged contravention of ‘exceeding the free stay allowance’’ at the Chatham Rd Car Park xxxxxx I have to mention that i have not received any other letter before this one, wich arrived over 31 days after the alleged contravention occuring on 21/April/2022. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Amount demanded is a penalty

2) CE Ltd not using POFA 2012

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

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

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)

6) Misleading and unclear signage

7) No landowner contract nor legal standing to form contracts or charge drivers

1) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

2) If CE Ltd want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and CE have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that CE Ltd have complied with these BPA Code requirements for ANPR issued tickets 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 21/April/2022 first correspondence, a reminder letter, arrived on 26/May/2022 all other correspondence missing, its their responsability to provide the other letters allegedly sent to me  .

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.  

3) 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

4) The alleged contravention, according to CE LTD, is in 'breach of the terms and conditions of use of the parking infrastructure' and signs are clearly displayed'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. CE Ltd are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

5) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give CE LTD s right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, CE 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 CE LTD Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that CE 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 CE 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 CE Ltd to prove otherwise so I require that CE 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 CA Ltd and the owner/occupier, containing nothing that CE Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

6) There were no photos at all of the vehicle  provided to me in the corespondence received  – most notably the time stamps and location coordinates. 

I would challenge CE Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge CE LTD that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data). 

Also signange on site seems to be unclear, the amount of 100£ bearly being visible from a reasonable distance. 

 

7) As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. I would argue does not breach a fair 'grace period', and therefore CE Ltd are in breach of the BPA Code of Practice.

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

 

Coupon-mad

Remove the 2nd and 3rd photos. Only the darker one.

I'm a lady, not a gent, but you didn't answer and are (maybe unnecessarily) running to POPLA where you'll probably lose, unlike PLAN A in the NEWBIES thread, a first approach that normally works the same day:

Have you completely battered to death, escalated to managers and utterly EXHAUSTED the landowner complaint easy cancellation approach - PLAN A and certainly in priority to trying useless POPLA?

Never do POPLA first.  

Your code will last 33 days.

scx

the Carpet Shop and the Petshop who share that parking both told me that they cant do anything about it and it has nothing to do with them. I'm just going to pay it.  Thanks for your help.