Looking for advise on what to write for POPLA appeal

Coupon-mad

Coupon-mad said:

On what basis are you saying the NTK is non-POFA? Wording flaw?  There isn't one.  Date error? No.

That NTK is POFA compliant.

Rather than waste time and lose at POPLA (likely) why not just complain to the landowner/retailer to cancel it instead of rushing to waste time on non-independent (BPA funded favourite), POPLA, which costs CEL money and usually prevents landowner cancellations later?

I already told you that this is a POFA compliant NTK, on Jan 11th.  So clearly you can't use that point.

NeedAFix

I thought that was about the point 5 from the old draft, which I removed and renumbered.

This new point 5 was point 6 in the previous draft.

Ok, I will remove both.

What about the last point 6 in the new draft about land owner? I also copied that one from a sample from here.

NeedAFix

To confirm what has been discussed so far, I will just use the old draft and cross out the parts that don't apply, will remove and renumber before sending. So far:
- Crossing number 5 because the NTK is compliant
- Corssing number 6 for the same reason

POPLA Ref <ref>

Civil Enforcement Parking Charge Notice no <ref>

A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of "Failed to obtain a permit in accordance with the notified terms" at <location>. 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. Lack of Signage Information: In my initial appeal, I specifically requested [Parking Company Name] to provide close-up actual photographs of the signage at the location in question. Unfortunately, the response received does not include the requested photographic evidence of the signage. I believe it is crucial to assess the clarity and visibility of the terms and conditions displayed, as they form the basis of the alleged contravention.

2. Absence of Grace Period Information: My initial appeal also sought information regarding the agreed grace period established by the landowner. Regrettably, [Parking Company Name] has not provided any details or evidence related to the grace period. Understanding the grace period is essential to determine if the alleged contravention occurred within the agreed timeframe.

3. Failure to Address Specific Queries: [Parking Company Name] did not address my specific request for an explanation of the allegations and evidence supporting the PCN. The response provided does not fulfill my request for transparency in the matter.

4. Lack of Evidence: [Parking Company Name] failed to include any textual information regarding the terms and conditions displayed. Moreover, the response lacks photographic evidence, raising concerns about the veracity of the claims made in the PCN.

5. This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. [Parking Company Name] have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore,

paragraph 9(5) states:

’’The relevant period...

is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged

event. Even if they had posted it on the same day that they describe as the ‘Date Issued’

it would be impossible for the notice to have been actually delivered and deemed ‘served’

‘or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that CEL have failed to act in time for keeper liability to apply.

6. The operator has not shown that the individual who it is pursuing is in fact 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. Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. 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 o

n numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. 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 –they will fail to show I can be liable because the driver was not me. 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.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''

7. 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 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.

Considering the above points, I kindly request that POPLA carefully reviews my appeal and takes into account the inadequacies in [Parking Company Name]'s response. I believe a fair assessment of the situation should include the provision of all relevant evidence, including but not limited to, close-up photographs of the signage at the location on the material date, textual content of the terms and conditions, and information regarding the agreed grace period.

I look forward to a thorough and impartial review by POPLA. 

[Name]