Request for Feedback on POPLA Appeal Letter

rsweb

Hi all, appealed a parking noticed recently, appeal rejected, so drafted this POPLA appeal. Is anyone able to help and give it a quick read to check I haven't missed anything? Many thanks in advance!



I, the registered keeper of this vehicle, (although no notice to keeper has currently been received) am appealing this notice provided by Euro Car Parks.

My appeal to the operator – Euro Car Parks – was submitted and acknowledged on 10/2/24 but subsequently rejected by a letter dated 13/2/24. 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:

·         The Breach of Terms and Conditions was claimed to be due to “Your vehicle was left unattended in a pickup/drop-off point”. No clause or wording on any signage in the car park states a vehicle must remain attended when in this area, I ask that Euro Car Parks provide evidence of the signage stating this clause.

 

·         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.

o   As can be seen from the evidence supplied by Euro Car Parks during their appeal process, the amount being claimed for is in small print at the bottom of the signage with the relevant Ts&Cs being unreadable from even their own photo, let alone when driving into the car park or parking. I challenge how this sign is meant to be read whilst remaining attended with the vehicle?

·         The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

o   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 on 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.''

·         Euro Car Parks lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass.

o   It is suggested that Euro Car Parks does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Euro Car Parks be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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

·         The photos provided during the appeal do not show the area the vehicle was actually parked in to be clearly marked as a drop off area nor do they show the vehicle was unattended.

o   The photos shown during appeal process show parts of the car, with no context or surrounding, they do not demonstrate anything that shows the car being parked in a certain area or “drop off point”

o   No photos of road markings, signage or even full photo of the parking have been provided by Euro Car Parks

·         There is no road or surface markings to indicate this area differs from any other section of the car park or road.

o   Nothing about this “drop off point” is marked to suggest this area has different parking conditions to the rest of the general car park. I ask that Euro Car Parks shows evidence to define the exact boundaries of this “drop off point” and how this is defined as an area in the car park. Please can I ask that evidence is provided of the surface markings defining this area.

·         The vehicle was claimed to be observed for 7 mins, this is significantly under the 10-minute grace period set out in the Private Parking Code of Practice.

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.” BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private carpark after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10minutes.” BPA’s Code of Practice (18.5)states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear-a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period “to apply to 13.1 and 13.2 of the BPA’s Code of Practice

Debszzzz2

What does the "R" stand for in POPLAR? Was this PCN as a result of a windscreen NtD? You state in your Plan C appeal to POPLA that you have not received an NtK. What exactly did you put in your Plan B appeal to ECP? Have you tried Plan A? What was the location of this alleged contravention? On what basis are you claiming non-compliance with PoFA to hold you liable, considering you have appealed to a NtD?

rsweb

POPLA changed, good spot. Windscreen ticket yes, appeal to ECP so far was based on lack of any signs to show car had to be attended. Location is a supermarket car park

Umkomaas

Surprised ECP are still dishing out windscreen tickets these days, they seem to have moved across to ANPR cameras. 

rsweb said:

POPLA changed, good spot. Windscreen ticket yes, appeal to ECP so far was based on lack of any signs to show car had to be attended. Location is a supermarket car park

Morrisons by any chance?  Can you confirm the PCN was incurred in England or Wales please?

Can we see the original windscreen ticket (suitably redacted) please? 

Fruitcake

rsweb said:

POPLA changed, good spot. Windscreen ticket yes, appeal to ECP so far was based on lack of any signs to show car had to be attended. Location is a supermarket car park

Are you past the 56 day period beginning with the day after the alleged event for the PPC to issue a NTK? If not, a PoPLA appeal now will warn them and they will then have time to issue a PoFA compliant one as a result.
If you are past day 56, then you should specifically state with which part of the PoFA the PPC has failed to comply.

Note that PoPLA codes last at east 32 days, so don't submit it before day 56 unless you have to.

As for the location, that doesn't help us identify it nor determine if it has cropped up here before where someone might have information about it or the landowner that might help you.

rsweb

Occurred at Sainsbury in Farnborough, not past 56 days yet, is this a must to wait until then?

Fruitcake

You don't have to take our advice if you don't want to, but if a PoFA compliant NTK arrives by day 56, you should not raise that point, and if you don't wait (unless your PoPLA appeal deadline of 32-33 days is before day 56), you run the risk of warning the PPC and giving them time to remedy their error.
My advice is, don't do their job for them.

You haven't told us the date of the alleged event, but you can work out when day 56 will be, and you can work out when day 32 will be from the date of the rejection letter. You will then be able to tell if you can wait until day 56 and still have time to submit your PoPLA appeal.

Debszzzz2

Did you reveal yourself to be the driver in your initial appeal to ECP? I'm assuming that it is highly likely as you responded to a windscreen Notice to Driver. If you have, there is little point in using PoFA as an argument in your POPLA appeal.

Also, you have not answered the question about whether you have tried Plan A yet? A complaint to the landowner or Sainsbury's.

rsweb

No, haven't stated who the driver was at any point. Ref Plan A, have spoken to Sainsburys with no luck. Thats a good point, am I best removing that section? Date of notice was 8/2/24. Photo of the noticed attached.

Debszzzz2

How high up the management food chain did you go with your Sansbury's complaint? The person behind the Customer Service desk is not likely to get you anywhere. Email the CEO and CC in the store manager.

Fruitcake

You appealed the NTD too soon. It's still too early for the PPC to apply to the DVLA to obtain the keeper's details, so no wonder the keeper hasn't received an NTK yet, and won't (shouldn't) until after day 28. 
Day 32 from the date of rejection by my reckoning will be Saturday the 16th of March, and day 56 will be the 4th of April.

Unfortunately that means you will need to submit your PoPLA appeal well before day 56, so you will not be able to say that a PoFA compliant NTK was never given because the PPC will still be within the timeframe to deliver one.