Premier Park Parking Charge Notice - St George’s Gravesend

Umkomaas

As pointed out by @B789, the NtK is not PoFA compliant because the attempt at the PoFA warning (last paragraph of the NtK), in Premier Park's own words, fails to pass the liability for the charge to the keeper, rather confirming that after 28 days, the liability (still) rests with the driver. 

So, no need for tears @Bbyoda, the appeal point you've drafted above can be used, but will need to be tweaked with an opening paragraph explaining precisely how the Premier Park NtK fails PoFA.  Have a go at it and let us see it please. 

But, you really need to add further appeal points to your POPLA appeal so that it is all-encompassing, including:

1) Not the landowner
2) No standing to issue charges in their own name
3) Inadequate signage
4) BPA CoP failures

Template appeal points for the above can be found in the NEWBIES FAQ Announcement, third post.

Please let us see your full draft once completed, but initially draft up that killer paragraph to front your 'NtK not PoFA compliant' section. 

Coupon-mad

Bbyoda said:

Hi, I received a PCN and have appealed it as from the photos displayed it is not clear who the driver is and my car isn’t used just by myself.  

Clearly incapable of holding a keeper liable!

You should also draw POPLA's attention to the fact PP tried to mislead you in their subsequent letter, by urging you to look at the Act that they KNOW they are not using!  This is a breach of the Code of Practice, they must not mislead consumers about POFA/keeper liability or suggest a level of authority that they do not have in this case:

We note your comments and must refer you to the Protection of Freedoms Act (PoFA) 2012, Schedule 4 - Recovery of unpaid Parking Charges.      

Bbyoda

Umkomaas said:

But, you really need to add further appeal points to your POPLA appeal so that it is all-encompassing, including:

1) Not the landowner
2) No standing to issue charges in their own name
3) Inadequate signage
4) BPA CoP failures

Thank you all for your help. I have redrafted and added some points. I am unaware of the signage and whether it is inadequate as I am not local to the car park and it’s quite a distance to check. So don’t think I can add this point. 

My new draft appeal is as follows:

I, the registered keeper of the vehicle (XXXXXXX) received a letter dated 24th April 2023 acting as a notice to the registered keeper. My appeal to the operator - Premier park - was submitted and was acknowledged on 8th May 2023 but subsequently rejected by an email on 31st May 2023. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

Premier Parks Notice to Keeper is not PoFA compliant because the attempt at the PoFA warning (last paragraph of the NtK), in Premier Park's own words, “if, after 28 days from the day given, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we Premier Park Ltd (the creditor) have the right to recover any unpaid part of the parking charge from the driver of the vehicle.” This fails to pass the liability for the charge to the keeper, rather confirming that after 28 days, the liability (still) rests with the driver. 

I would also like to draw attention to the fact Premier Park tried to mislead me in their subsequent email, by urging me to look at the Act that they know they are not using. “We note your comments and must refer you to the Protection of Freedoms Act (PoFA) 2012, Schedule 4 - Recovery of unpaid Parking Charges.” This is a breach of the Code of Practice, they must not mislead consumers about POFA/keeper liability or suggest a level of authority that they do not have in this case. 

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

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.''

No evidence of landowner authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. 

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Section 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement

Coupon-mad

Looks fine except: 

- remove the excruciatingly ungrammatically-drafted first paragraph. that people keep copying even though it's got more split infinitives than I've had cups of tea today...!

- put DRIVER in bold when quoting from the NTK, just in case you get a lazy Assessor who skim-reads;

- show a screenshot of their letter that referred you to the POFA; embedded into your appeal word doc, as a picture immediately below your words about it;

- add in the standard point about unclear signs, as belt and braces.

- put your subheadings in bold and give each appeal point a number so it's clear you are moving on to a new point.

Save it as a PDF and upload it under OTHER.

Bbyoda

Coupon-mad said:

- add in the standard point about unclear signs, as belt and braces.

Thank you. I have done all the suggested. 

Should I add the whole lengthy template about signage? 

KeithP

Bbyoda said:

Coupon-mad said:

- add in the standard point about unclear signs, as belt and braces.

Should I add the whole lengthy template about signage? 

Yes.        

Umkomaas

Bbyoda said:

Coupon-mad said:

- add in the standard point about unclear signs, as belt and braces.

Thank you. I have done all the suggested. 

Should I add the whole lengthy template about signage? 

In general, signage is parking firms' Achilles heel.  More cases (particularly those at court hearings) are won by motorists on the basis that the on-site signage was inadequate. So after PoFA compliance, this would be a potentially winning point, particularly if the £100 charge was less than conspicuous. You make the challenge that the signage was inadequate (don't worry if you can't get photos - although Google Street View might help), then let PP refute that. If they can't, you win. You need only win on one appeal point, they have to successfully refute every appeal point you raise to succeed. 

Umkomaas

Premier Parks Notice to Keeper is not PoFA compliant because the attempt at the PoFA warning (last paragraph of the NtK), in Premier Park's own words, “if, after 28 days from the day given, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we Premier Park Ltd (the creditor) have the right to recover any unpaid part of the parking charge from the driver of the vehicle.” This fails to pass the liability for the charge to the keeper, rather confirming that after 28 days, the liability (still) rests with the driver. 

I would also like to draw attention to the fact Premier Park tried to mislead me in their subsequent email, by urging me to look at the Act that they know they are not using. “We note your comments and must refer you to the Protection of Freedoms Act (PoFA) 2012, Schedule 4 - Recovery of unpaid Parking Charges.” This is a breach of the Code of Practice, they must not mislead consumers about POFA/keeper liability or suggest a level of authority that they do not have in this case. 

Killer paragraphs. Well done on your drafting of them. Tell us when you've won.

Bbyoda

Yesterday I received this from POPLA, and I can assure you I did NOT pay. So I’m guessing after initially after rejecting my appeal, Premier Park changed their mind.
So I WON the appeal.
Thank you to everyone for the help and guidance.

Coupon-mad

Nicely done.  Yes - they threw in the towel!

Now... a favour please ... do stick around and join all of us in getting your driving family & friends (as well as your good self) to submit a response to the Public Consultation.

If you are not likely to pop back here every week to check, please set up email alerts for this forum and bookmark this thread (below) as we intend that one of us posts on it when the Government opens the Consultation:

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

Read only the latest (2022) posts there. The PPCs have blocked the new Code by filing for Judicial Reviews.

Stopped the much welcomed parking code from February 2022, which stated that added £60 or £70 false 'DRA fee' extortion was to be banned and that parking levels would start at £50.

It's all on hold... but about to be finalised!

Motorists urgently need the statutory Code reinstated and the ban on false 'DRA fees' confirmed, to stop the rot and the toxic 'bulk litigation' culture.

This will be your chance to make a difference, plus other drivers you know (family, friends) and even passengers who are also fed up with greedy and unscrupulous parking firms and the stranglehold they and their useless debt 'recovery' bullies have on people.

Coming very soon....and it will be all over the forum for several weeks.  Don't miss it.

Your only chance to change the law.  Stop the 3-figure parking charge rip-offs.