Success !

Sanka

Thanks, will do - yes probably been overthinking it! 

Sanka

Received response from landowner - has advised that to cancel a PCN notice OPS require an administration fee of £30. Landowner will request it is cancelled if we pay up.

It that the usual MO - any thoughts?

Fruitcake

It is not unusual, but shows the landowner showed poor judgment when agreeing to the contract.

You could tell her/him that as keeper you cannot be held liable for the charge so you don't understand why she/he thinks you should pay. Otherwise, just concentrate on your initial appeal then PoPLA if necessary.

Sanka

Hello all

OPS have rejected appeal. They accept all the dates stated in previous posts.

However they say that because the driver drove away before they could issue windscreen PCN they had to request keeper info from DVLA which they received on 25/8.

And that because the PCN was received by the keeper within 14 days of receipt of information from the DVLA, then all is well as far as they are concerned! 

Surely not?? They seem to be making up new rules! Thanks.

Coupon-mad

They've made it up.  The POFA is the law.

Fruitcake

The PoFA is quite clear on this. An NTD must be given to the driver or a person who appears to be in charge of the vehicle or affixed to the vehicle whilst it is stationary.
Since none of this happened, then an NTK must be given by day 14 beginning on the day after the alleged event at the latest for the keeper to be liable. Again, this never happened. Consequently, there can be no keeper liability.

Fourteen days after the PPC received the info from the DVLA is irrelevant. They are making it up.

You should have been given a PoPLA code so now you should construct an appeal using all the points available to you from the third post of the NEWBIES, then post it here for checking before you submit it.

A year or so ago, PoPLA had trouble counting to 14, so you will need to spell out the dates, and quote the Interpretation Act and court practice direction concerning second class post and include a copy of the date stamped envelope.

Sanka

Hello again

Just starting my POPLA appeal.  I have drafted the section on the late serving of NTK below, any thoughts on how it reads, I feel like i'm getting a bit tangled up! Thanks:

1. A compliant Notice to Keeper was not served - no Keeper Liability can apply.

 

One Parking Solution has failed to meet the requirements of Schedule 4 of The Protection of Freedoms Act 2012 namely, but not limited to, failing to notify the keeper within 14 days beginning with the day after that on which the specified period of parking ended as mandated by section 9 (4) (b) and (5) of the Act. 

 

The alleged contravention date is 18 August and the Notice to Keeper therefore should have been delivered by 1 September to comply with the above. The Notice in fact arrived on the 2 September, 15 days after the event.

 

Paragraph (9) (6) of Schedule 4 of The Protection of Freedoms Act 2012 states:

 

(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.

 

The Interpretation Act 1978 states:

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression ” give ” or ” send ” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

 The Notice is dated the 26 August and was sent by Second Class mail (see attached photo). The Notice can only be deemed delivered within two working days if sent by First Class mail as per the following:

Practice Direction [1985] 1 All ER 889 states that:

 

First class mail is deemed delivered on the second working day after posting, and Second class the fourth working day after posting. “Working Day” means Monday to Friday not including Bank Holidays.

 

Given that the Notice was sent by Second Class mail, it is therefore deemed to have been delivered by the 2 September (the fourth working day after posting), taking account of the bank holiday weekend 27-29 August. This is the date the Notice did indeed arrive.

 

18/8 - Date of alleged contravention

19/8 - Day 1

26/8 - Day 8 - NTK

27/8 - Day 9 - Saturday (non-working day)

28/8 - Day 10 - Sunday (non-working day)

29/8 - Day 11 - Bank holiday (non-working day)

30/8 - Day 12 - First working day

31/8 - Day 13 - Second working day

01/9 - Day 14 - Third working day

02/9 - Day 15 - Fourth working day.

 

 

2 September is 15 days after the date of the alleged contravention (18 August). Therefore liability cannot be transferred to the keeper. 

Sanka

Should i explain that NTD not attached etc. Do i need to do section on "The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge"

thanks.

Coupon-mad

Yes, you need that section, plus the other two standard ones seen in every POPLA appeal (as per the 3rd post of the NEWBIES thread).

Sanka

Coupon-mad said:

Yes, you need that section, plus the other two standard ones seen in every POPLA appeal (as per the 3rd post of the NEWBIES thread).

Thanks - how does my para in previous post read re POFA NTK?