POPLA Appeal Letter - LDK Security Group - Advice Please?

UncleBrynsAirFryer

Hello! I received an NTK from LDK Security Group for entering and leaving a car park. The car park was full so after a couple of laps trying to find a space, I left without actually parking. I was in the car park for a total of 5 minutes and 42 seconds.
I used the template from this forum to appeal, received the expected rejection, and after much back and forth, I have now got the POPLA code from LDK to appeal.
The date of the contravention was 27th October and the NTK is dated 8th February. The NTK makes no reference to POFA 2012 so after reading many, many posts on this forum, I feel confident in winning with POPLA. I have copied my draft letter below which is basically a copy and paste from templates on this forum, but my question is; is this enough? Do I need to add the other points about landowner authority, bad signage etc or is the late NTK enough to win?

Dear POPLA,

 

On the 8th February 2024, LDK Security Group issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had breached the terms and conditions of parking at the location noted. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

 

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

 

1. The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

 

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 5, 6, 11, and 12.

 

LDK Security Group have failed to fulfil the conditions which state that the keeper must be served with a compliant Notice to Keeper in accordance with paragraph 9, which stipulates a mandatory timeline:

 

’’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) as the Parking Charge Notice was delivered by post. Furthermore, paragraph 9(5) states:

 

“The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”

 

The Parking Charge Notice sent to me as Registered Keeper was issued on 8th February 2024. This is 104 days after the alleged event and is therefore outside the 'relevant period' of 14 days.

 

Please see the attached file from LDK Security Group with the ‘Contravention date’ of 27-Oct-2023 and the issue date of 08 February 2024 (i.e., over three full months later!)

 

2. 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 Notice To Keeper.

 

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 'Notice To Keeper' 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 LDK Security Group 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.

Yours sincerely

LDast

Interesting... the NtK was issued over 5months ago but you've just received it and you have appealed and had your appeal rejected and been issued POPLA code. Miracle never cease to happen.

You may want to add a few more items into the POPLA appeal. Whilst the PoFA/keeper/driver argument should win it, you may as well throw the kitchen sink at them. So, things such as inadequate signage, consideration time, landowner authority etc.

Le_Kirk

LDast said:

You may want to add a few more items into the POPLA appeal. Whilst the PoFA/keeper/driver argument should win it, you may as well throw the kitchen sink at them. So, things such as inadequate signage, consideration time, landowner authority etc.

Yep, all as advised in NEWBIE sticky, third post.

Coupon-mad

You should also make a complaint that their NTK says in more than one place that 'you' (the keeper) is or will become liable which is a lie, misleading and impossible when the NTK was posted so late.  Complain, then complain to the BPA that this operator is misleading keepers about liability.

halo1982

Hi, in a similar situation here. The date of alleged event as per the NTK is 20 May Saturday at 20:01 and the NTK was received on the 9th of September, dated 03 September 2024. Thus it is outside of the 14 day time period as per the POFA. The NTK is worded  exactly the same as above. For many years there used to be clear council signage at the site of the alleged event and there was no restriction on weekends. At some point the site has become private and the restrictions have changed. However, changes to the restrictions is not clear at all, the LDK signage especially has been pasted onto a large dilapidated billboard. The changes in parking restrictions from 9 a.m. to 6 p.m. Mon - Fri to 24 x 7 is certainly not obvious, otherwise there was plenty of free parking nearby during the weekend.  Without a doubt I will be first appealing directly with LDK and most likely get a rejection with a POPLA code.

I understand this point > 1. The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

I did not quite get this> 2. 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

 Sorry for my ignorance, can someone explain?

 Also, was the above appeal with POPLA successful?

Le_Kirk

You should start your own thread and that way you will receive bespoke advice. It can become confusing to answer two posters on the same thread.

UncleBrynsAirFryer

Took them over 2 months but finally got my POPLA decision today stating my appeal is successful. Interestingly the reason they have given is due to inadequate signage, not that there was no sufficient NTK. I'm glad I threw the kitchen sink at them!

Coupon-mad

UncleBrynsAirFryer said:

Took them over 2 months but finally got my POPLA decision today stating my appeal is successful. Interestingly the reason they have given is due to inadequate signage, not that there was no sufficient NTK. I'm glad I threw the kitchen sink at them!

Good stuff!

Please add the decision to POPLA DECISIONS but add ten paragraph breaks into it.

And say which PPC you beat, and show a pic of the offending sign if you can, for context.