Parking Charge Notice - Advice Please....

Toddy2

Hi All,

Frustratingly I received a Parking Charge Notice in the post today (24/09/22), date of the incident was nearly two weeks prior and date of issue was last week.
Having read around on the subject I can see there are grounds to appeal if the issue date is over 14 days from the incident, but apparently not so in this case, although dubious on the actual issue date.   

I have also read somewhere the notice should state the Parking Charge is issued under POFA 2012, I can't see this anywhere on the notice.  Only .....The terms and conditions of parking on this private land are clearly set out on signage within the car park.  By choosing to park within this car park, the driver is bound to these terms and conditions and liable to pay a charge if the terms and conditions are breached..... 

Welcome any thoughts on whether I have any grounds of appeal or just pay the fine?

KeithP

The keeper should send the already written for you blue text template appeal easily found in the opening post of the NEWBIES thread.

Send it unchanged.

Coupon-mad

Doesn't matter about the date, given the fact that Horizon don't use the POFA anyway!  It always amazes me how many people fixate only on the date. 

Their NTKs very clearly only say the driver is liable after 28 days. Not the keeper. 

Easy peasy. You could add the extra 'non-POFA, innit, stop wasting my time' paragraph shown in the Smart Parking thread we've just replied on this afternoon.  It's on page one right now.

Job done.

Toddy2

Great, thanks both!

Toddy2

Sorry another question, should I wait 14 days or 28 days before appealing?  I intend to do it using their online function the night before.

KeithP

Toddy2 said:

Sorry another question, should I wait 14 days or 28 days before appealing?  I intend to do it using their online function the night before.

No need to wait at all.

Whose car park was this? Attached to a shop? Serving a retail park? Something else?

Unfortunately your opening post tells anyone reading it exactly who was driving. Your throwaway comment at the end of your first paragraph would be better written as...
"Really annoying as the driver was just dropping someone off ".

The parking companies read this forum and will pick up that sort of thing.
Suggest you edit your post accordingly.

Toddy2

KeithP said:

Toddy2 said:

Sorry another question, should I wait 14 days or 28 days before appealing?  I intend to do it using their online function the night before.

No need to wait at all.

Whose car park was this? Attached to a shop? Serving a retail park? Something else?

Unfortunately you opening post tells anyone reading it exactly who was driving. Your throwaway comment at the end of your first paragraph would be better written as...
"Really annoying as the driver was just dropping someone off ".

The parking companies read this forum and will pick up that sort of thing.
Suggest you edit your post accordingly.

Not sure, I'll need to find the driver and ask...

KeithP

Have you found the driver yet?

Toddy2

Appeal as the keeper to the company rejected, as follows:


Thank you for your recent correspondence concerning the above referenced Parking Charge Notice.

 Review of your Appeal

The Parking Charge Notice was issued lawfully and in full and proper accordance with the Code of Practice issued by the British Parking Association (the ‘BPA’).

There are signs located at the entrance to, and within the car park that state the terms and conditions that apply when parking. As clearly stipulated on signage within the car park, payment or validation for parking must be made for the full duration of the vehicles stay.  Our systems do not show any evidence of payment or validation made against this vehicle on the incident date.

The signs throughout the car park are clear and comply fully with the BPA’s prescribed rules and regulations.  When parking on private land, it is the driver’s responsibility to ensure they adhere to the terms and conditions of the car park concerned.

As we have not been provided with the name and a serviceable address for the driver/hirer, under Schedule 4 of the Protection of Freedoms Act 2012, we do have the right, subject to meeting the requirements of the Act, to recover from the Registered Keeper the amount that remains outstanding. We have obtained the name and address of the registered keeper of the vehicle from the DVLA for the purposes of enforcing this charge.

Given the above, and whilst we have considered your representations carefully, on this occasion your appeal has been rejected.

My intended appeal to POPLA:

I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

From their rejection of my initial appeal, it appears that XXXX are attempting to claim the charge is liable to them under airport byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

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.

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 POFA 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."

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

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

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

Anything I'm missing or could add in, or should I just pay the reduced fine?

Coupon-mad

From their rejection of my initial appeal, it appears that XXXX are attempting to claim the charge is liable to them under airport byelaws.

No, they aren't.

1505grandad

You have not actually stated who the ppc is  -  you keep using XXXXXXX as the ppc but then state APCOA as well. I also note that "Horizon" is mentioned in an earlier post which has not been denied..

Please confirm the name of the ppc.

Also you should be using/quoting from BPA CoP version 8 dated January 2020  -  slightly different para numbers and/or wording.