Initial Parking - PCN Notice to Hirer

hurdys

Evening... I have drafted an appeal based on my reading of the links helpfully suggested above. I have not mentioned the rather limited photographs on the PCN (they do not show much detail that would identify their location) as it would seem to me that guidance on photos having to refer to and confirm the unauthorised parking have been removed from the BPA CoP. I am also struggling to take issue with the signage as I am unable to revisit the location due to distance and there are limited photos available on the internet.

If I may paste my draft below, I would be grateful for any comments or guidance, thanks:

As the registered hirer of xxxxxxx, I wish to appeal the parking charge notice Initial Parking issued against it on 13/08/24. I believe the parking charge notice should be cancelled based on the following grounds:

1) Initial Parking failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA),

2) No evidence that the appellant is the individual liable – there is no driver liability,

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

 

Initial Parking failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA)

In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer was not in compliance with those requirements.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) i.e.

(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) a copy of the hire agreement; and

(c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right to not name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. I trust that POPLA's assessors are already familiar with the contents of this report, however for ease of reference I set out a link as follows:

https://popla.co.uk/jsycjdw1p8kq/1BbHkInc8M97VAxJjjasLe/b6ac462cf8916a04597fa65628a53726/popla_annualreport_2015.pdf

I draw POPLA's particular attention to the section entitled 'Keeper Liability' (P.12) in which Mr. Greenslade explains that:

 

“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 (...)

However keeper information is obtained, 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.”

By failing to deliver a POFA compliant Notice to Hirer, the Operator has forfeited it’s right to claim unpaid parking charges from the vehicle’s hirer. For this significant reason alone POPLA may determine that the Operator’s claim in this case is unlawful and invalid.

 

No evidence that the appellant is the individual liable – there is no driver liability

Initial Parking has failed to show that the entity who it is pursuing is in fact the driver who may be potentially liable for the charge.

In cases with a hirer appellant (but when the Operator has no “hirer liability” to rely upon under POFA), 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.

I have a right (that I am exercising) not to name that person, yet still not be lawfully held liable as the Operator is not using or complying with Schedule 4. This right 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 Hirer and ONLY Schedule 4 of POFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

In this case, no party save for an evidenced driver can be told to pay. I am the Appellant throughout (as entitled) and as there has been no admission regarding who was driving and no evidence has been produced to show who was, no liability can be applied. POPLA have held on numerous occasions that a parking charge cannot be enforced against a hirer without a valid ‘NTK’.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms and conditions in place on the land and further show that I am personally liable for their parking charge. They cannot.

As previously stated the vital matter of full compliance with POFA was confirmed by Henry Greenslade in his position as POPLA Lead Adjudicator in 2015:

“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 me as Hirer of the vehicle, As the Operator cannot transfer liability under POFA.

This exact finding was made in 6061796103 against ParkingEye Ltd 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

The Operator does not have a proprietary interest in the land and is therefore required to produce an unredacted copy of their 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' or charge cancellation rights), is key evidence in defining what the 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 that because an agent is contracted to erect signage 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 is generally a matter for the Landowner only.

Witness statements are not sound evidence of the above as they are often pre-signed generic documents that do not address the case in hand. A witness statement may in some cases be accepted by POPLA but it is unlikely to contain a sufficient level of detail to evidence the extent of the services agreed by each party.

It is also unlikely to contain other vital information such as the periods when charging will be implemented, exemption clauses and grace periods and land boundaries and areas where enforcement is to be applied (or not). In addition it would likely omit any restrictions authorised by the Landowner to give rise to charge or the sum the Landowner authorises the Operator to charge (as an assumption cannot be made from any signage which historically has been proven to differ from the actual contract in many cases due to the use of templates).

Section 7 of the British Parking Association Code of Practice defines the mandatory requirements for operating on authority of the Landowner:

“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 Operator is put to strict proof that these requirements have been adhered too.

Coupon-mad

Looks fine but remove the word 'registered':

"As the registered hirer"

hurdys

Initial Parking have finally uploaded their "evidence" to the Popla portal. It's a thirty page pdf which contains a load of photographs of signage in the carpark, maps of locations, photos of the car on the day, the NTK and NTH they sent, copy of my appeal to them, a supposed "contract" with the landowner and a final page stating that the driver owes a charge for overstaying.

At no point do they address their failings to adhere to POFA as per my appeal to Popla. So, do I need to add anything further to my Popla appeal in retort or just leave as is for Popla to make their decision?

Coupon-mad

I would spell it out with some quick comments to steer the assessor to the right conclusion.

hurdys

Will do, thanks

1505grandad

Check that the photos have a date and time stamp and are relevant for the parking date.

hurdys

1505grandad said:

Check that the photos have a date and time stamp and are relevant for the parking date.

Total of seventeen photos dated 09/21,11/21,04/22 and 02/24. Date in question is July this year.There are clear differences in the photos which demonstrate the signs have been changed over time so it doesn't look particularly accurate on their part.

However as the location is around 250miles away from me I was unable to return and check the signage so didn't make it part of the appeal - Popla states I can only comment on parts of their evidence that refer to my appeal so I'm pretty much left with pointing out they haven't addressed their failure in relation to PoFA!

I did refer to them not having land owner authority and their attempts at proving that are fairly pitiful. They haven't included anything from land registry depicting the area in question but instead have included a screenshot from Google maps with some red lines drawn around (presumably in MS Paint or similar). The "contract" doesn't set out any terms in which they are allowed to operate, states hours of operation are 24/7 (signs say 0600hrs until midnight), is dated 07/21 (photos show signs have changed since then) and isn't even signed by them (despite them claiming it is on the subsequent page). I shall draw Popla's attention to this, particularly as it seems to have been effective in another post about Fistral Beach with the same operator.

Coupon-mad

You should certainly point this out even if you didn't mention signs:

Total of seventeen photos dated 09/21,11/21,04/22 and 02/24. Date in question is July this year. There are clear differences in the photos which demonstrate the signs have been changed over time so it doesn't look particularly accurate on their part.

hanson789

hurdys said:

1505grandad said:

Check that the photos have a date and time stamp and are relevant for the parking date.

Total of seventeen photos dated 09/21,11/21,04/22 and 02/24. Date in question is July this year.There are clear differences in the photos which demonstrate the signs have been changed over time so it doesn't look particularly accurate on their part.

However as the location is around 250miles away from me I was unable to return and check the signage so didn't make it part of the appeal - Popla states I can only comment on parts of their evidence that refer to my appeal so I'm pretty much left with pointing out they haven't addressed their failure in relation to PoFA!

I did refer to them not having land owner authority and their attempts at proving that are fairly pitiful. They haven't included anything from land registry depicting the area in question but instead have included a screenshot from Google maps with some red lines drawn around (presumably in MS Paint or similar). The "contract" doesn't set out any terms in which they are allowed to operate, states hours of operation are 24/7 (signs say 0600hrs until midnight), is dated 07/21 (photos show signs have changed since then) and isn't even signed by them (despite them claiming it is on the subsequent page). I shall draw Popla's attention to this, particularly as it seems to have been effective in another post about Fistral Beach with the same operator.

Hi I’m just wondering could you give an update on this please ? I am doing research for a case  

hurdys

Popla appeal upheld:

Decision

Successful

Assessor Name

########

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for unpaid tariff time.

Assessor summary of your case

The appellant has provided a detailed account of events. For the purpose of my report, I have summarised the grounds into the following points, and have checked each point before coming to my conclusion. The appellant says that: • They raised Protection of Freedoms Act (PoFA) 2012 and stated the Notice to Hirer was not POFA compliant. • They will not divulge who the driver was. • They raised landowner authority and stated the operator do not have the authority to issue PCNs on behalf of the landowner.

Assessor supporting rational for decision

I am allowing the appeal for the following reason: When an appeal comes to POPLA the burden of proof begins with the operator to evidence that the PCN has been issued correctly. The operator has issued the PCN to the appellant for not purchasing a parking ticket for the full duration of their stay. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. POFA lets parking operators transfer liability for a parking charge from the unknown driver of a vehicle to the hirer of the vehicle if certain rules are followed. The rules say an operator must obtain specific documents from the hire company and send those documents to the hirer, but there is no evidence that the required documents were ever obtained. As the operator have not adequately transferred liability to the hirer, I am not completely satisfied that the PCN was issued correctly. Accordingly, I must allow the appeal. I note the appellant has raised other issues as grounds for appeal, however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration.