Notice to keeper liability requirements - 'period of parking'

falkensmaze

One of the NTK requirements under the POFA Act refers to 

"The notice must...specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;"

This is probably a long shot but my question is what is specifically considered / defined as the period of parking.  

My PCN from Premier Park states the incident time and date of the alleged breach of their terms and conditions (not parking wholly within bay). Could I successfully argue, at POPLA appeal, that the specific time and date is not a 'period of parking', and therefore the NTK is invalid? 

For example, I would say that a period of parking that relates to this breach would be when it first occurred (when the driver parked) to when it was no longer a breach (when the driver moved the vehicle).   Has this point been contested before?

falkensmaze

I should add that the PCN states:

"the period of parking to which this notice relates is the period immediately preceding the incident time stated above"

That still doesn't give a period of parking, does it?

Fruitcake

Please confirm the full name of the PPC, as there are at least three with Premier Park in the name, only one of which is a BPA member.

Plan A is always a complaint from the keeper to the landowner and the keeper's MP, and it is never too late to do so.

Nothing makes an NTK invalid. However, the PPC can only hold the keeper liable if it is PoFA compliant on dates and wording.

Not stating the period parked is a minor point. It should be included in a PoPLA appeal, but don't be surprised if the assessor ignores it.

Include all the other standard points from the third post of the sticky Announcement for NEWBIES. This should include, but not be limited to,

Not the landowner
No standing to issue charges in their own name
Non-PoFA compliant NTK
BPA CoP failures
Inadequate signage
Anything else relevant

Get photos of the site and signage, and/or use Google Streetview to see if there are any images there that might help.
Have a look at the PoPLA decisions thread, starting at the end(newest) and working backwards to see how others word their appeals.

Where did the alleged event occur? IT might have cropped up here before.

Show us your draft appeal before you submit it.

falkensmaze

Thanks for the steers Fruitcake.  I've attached my (redacted) letter from Premier Park Ltd - occurring at Springfield Retail Park, Nottingham.  

Here is my draft appeal, I'll get some photos of the positioning of the signs to help strengthen the response.

Parking Charge Notice – xxxxxx/xxxxxx

Issued by Premier Park Ltd

POPLA Ref: xxxxxxxxxx

I am writing to you to lodge a formal appeal against a parking charge notice (PCN) sent to myself as registered keeper of a vehicle, in respect of an alleged breach of parking conditions at Springfield Retail Park on XXX.

I appeal to you that I am not liable for this parking charge on the basis of the following points:

1. Premier Park’s Notice to Keeper failed to meeting the requirements of POFA
2. No proof that the individual they are pursuing is the driver liable
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
5. The signs in this car park fail to create any contractual liability due to the failure to comply with the Consumer Contracts Regulations 2013.
6. Unfair contract terms

1. Premier Park’s Notice to Keeper failed to meeting the requirements of POFA

Contrary to the requirements of Schedule 4, Paragraph 9 (1)(2)(a), the notice did not specify the period of parking to which the notice relates.  

The notice provides the date and time of the incident, and states “the period of parking to which this notice relates is the period immediately preceding the incident time stated above.”  Since the notice does not specify the period of parking, as per POFA requirements, keeper liability cannot be applied. 

2. No proof that the individual they are pursuing is the driver liable

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.’'

3. 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.

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

4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

[given restrictions on character limit - I have not included the text here but it is copied from Coupon-Mad's 2016 post on template text related to signage.]

5. The signs in this car park fail to create any contractual liability due to the failure to comply with the Consumer Contracts Regulations 2013.

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner.  The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

• 2(c) – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.
• 2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
• 2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
• 2(r) – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
• 2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.

Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.

6. Unfair contract terms

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to Premier Park nor the landowner. Additionally there is no loss to Premier Park nor the landowner when the parking is not full, as was the case during the disputed ‘contravention’. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

The parking notice also makes reference recovering an amount that may increase up to £170 which is not adequately ‘prominently’ state here, this is also not quantified on the signs and therefore further adds to the argument that the contract terms are unfair. 

Coupon-mad

This point below has no legs since ParkingEye v Beavis (Supreme Court, 2015) and the OFT hasn't existed for the best part of a decade AND the old UTCCRs were replaced by the CRA nine years ago:

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to Premier Park nor the landowner. Additionally there is no loss to Premier Park nor the landowner when the parking is not full, as was the case during the disputed ‘contravention’. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

You must have been reading really old posts from here or elsewhere.  I also recall people trying that point about a period of parking several times over the years and it's never won at POPLA.

Unless the signage is appalling and you have photos of that, I would not try POPLA and would sit on your hands and ignore PP. 

No paying, of course!

Seriously: NO-ONE here is telling you to pay (beware of private messages saying otherwise.  Parking firms read this forum).

Fruitcake

The NTK wording is PoFA compliant. I can't tell if it is compliant on dates because you redacted them, but I suspect it is compliant. 

falkensmaze

No paying, of course!

Seriously: NO-ONE here is telling you to pay (beware of private messages saying otherwise.  Parking firms read this forum).

Aren't there consequences of ignoring it? 

Le_Kirk

falkensmaze said:

No paying, of course!

Seriously: NO-ONE here is telling you to pay (beware of private messages saying otherwise.  Parking firms read this forum).

Aren't there consequences of ignoring it? 

Only when not paying it after being ordered to by a judge.

Coupon-mad

falkensmaze said:

No paying, of course!

Seriously: NO-ONE here is telling you to pay (beware of private messages saying otherwise.  Parking firms read this forum).

Aren't there consequences of ignoring it? 

No. Obviously you don't ignore a court claim but that's when you win.

troublemaker22

Fruitcake said:

The NTK wording is PoFA compliant. I can't tell if it is compliant on dates because you redacted them, but I suspect it is compliant. 

I respectfully disagree.  A period must have a starting point.  More fundamentally, the warning does not comply with POFA 9(2)(f) because it fails to state that the PPC's right to recover from the keeper is subject to all applicable conditions under POFA being met 

falkensmaze

troublemaker22 said:

Fruitcake said:

The NTK wording is PoFA compliant. I can't tell if it is compliant on dates because you redacted them, but I suspect it is compliant. 

I respectfully disagree.  A period must have a starting point.  More fundamentally, the warning does not comply with POFA 9(2)(f) because it fails to state that the PPC's right to recover from the keeper is subject to all applicable conditions under POFA being met 

I assume the relevant section of POFA 9(2)(f) you're referring to is the bit in brackets: 

"...the creditor will (if all the applicable conditions under this Schedule are met) have the right to...."

Since it is in brackets, does the notice need to explicitly say this to be POFA compliant? 

 Do you think the NTK being non-POFA complaint on this basis has legs in a POPLA appeal?