Notice to hirer response

ANONYRAY

Hi, I have had the inevitable rejection of appeal from Premier Parking as below... 

Thank you for your appeal against the above Parking Charge Notice (PCN). We have carefully considered your appeal, however on this occasion the appeal has been rejected for the following reason;

 

Whilst we note the comments and reason for appeal, as per our photographic evidence, the vehicle was parked in contravention of the advertised terms and conditions. As the vehicle was not parked fully within a bay, we can confirm that this PCN has been issued correctly.

 

Either due to the reason for issue and/or the insufficient evidence provided to support the details of your appeal, we have considered this PCN and found that it does not fall under the category of Annex F the Appeals Charter of the Single Code of Practice. Therefore, if no further evidence is provided, we will deem this to be our final decision. 

Coupon-mad

Fine. Wait for the POPLA code.

BTW, you're inadvertently confusing us by calling them Premier Parking which is a different firm that doesn't offer POPLA.

ANONYRAY

Apols, I am dealing with Premier Park Ltd.

I have the POPLA code and intend to appeal with the letter below. Any help, advice or need for adding further information would be very helpful. 

As the hirer of this vehicle, I received a Notice to Hirer dated . My appeal to the operator – Premier Park Ltd – was submitted and acknowledged by the operator on  and rejected via an email dated . I contend that I, as the hirer, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1) Protection of Freedoms Act 2012 (‘POFA’) Schedule 4 – Non-Compliant Notice to Hirer

2) No Evidence of Driver Liability

3) No Evidence of Landowner Authority

 

1) Protection of Freedoms Act 2012 (‘POFA’) Schedule 4 – Non-Compliant Notice to Hirer

To be able to rely upon POFA for claiming unpaid parking charges from a vehicle’s hirer, the operator is required to issue a Notice to Hirer that fully complies with POFA’s stringent guidelines. In this particular case, Premier Park Ltd’ Parking Charge Notice to Hirer failed to meet the POFA requirements.

The provisions related to hire vehicles are outlined in Paragraphs 13 and 14 of Schedule 4 of POFA, with Paragraph 14 detailing the conditions the Creditor must satisfy in order to hold the hirer liable for the charge.

Paragraph 14(2)(a) specifies the following:

the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

The required documents mentioned in Paragraph 13(2) are:

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.

 

Premier Park Ltd did NOT provide me with copies of any of the above 3 documents (a, b & c) along with the Notice to Hirer.

 

If Premier Park Ltd attempts to suggest an alternative method by which a vehicle’s keeper (or hirer) can be held responsible for a charge without identifying the driver, I would like to direct POPLA’s attention to the guidance provided in their 2015 Annual Report by Lead Adjudicator Henry Greenslade. In this report, he emphasized the keeper’s (or hirer’s) right not to disclose the driver’s identity while remaining exempt from liability for an unpaid parking charge under Schedule 4 of POFA. While I trust POPLA’s assessors are already well-acquainted with this report, I have included a link below for easy reference:

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

 

I would like to specifically highlight for POPLA the section titled ‘Keeper Liability,’ where Mr. Greenslade provides an explanation that:

Page 12

‘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.’

Page 13

‘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.’

Thus, by failing to issue a Notice to Hirer that complies with POFA legislation, Premier Park Ltd has relinquished its right to pursue unpaid parking charges from the vehicle’s hirer or registered keeper. On this basis alone, POPLA should conclude that the operator’s claim against me is void.

 

2) No Evidence of Driver Liability

Premier Park Ltd has failed to provide any evidence demonstrating that the individual it is targeting is indeed the driver who might have been liable for the charge.

In situations involving a hirer appellant without POFA ‘hirer liability’ to depend on, POPLA must assess whether the evidence provided allows the Assessor to confidently identify the driver. Liability cannot be presumed under any circumstances. A vehicle may be driven by anyone, provided they have the owner’s consent and are insured. There is no question that the driver was authorised to use the car, and I can confirm this; however, I am choosing to exercise my right to withhold their identity.

In this scenario, only the driver, supported by evidence, can be held liable for payment. I remain the appellant throughout, as is my right, and since there has been no acknowledgment of who was driving and no evidence presented, POPLA has consistently ruled that a parking charge cannot be imposed on a keeper / hirer without a valid Notice to Keeper / Hirer.

As the hirer of the vehicle, I have the right to withhold the driver’s identity while remaining free from liability, provided the operator has not complied with POFA Schedule 4. This remains true regardless of when the initial appeal was submitted or whether a purported Notice to Hirer was issued. The key point is that I am appealing solely as the hirer, and only compliance with Schedule 4 of POFA—or evidence identifying the driver—can render a hirer appellant liable.

It is the operator’s responsibility to prove that I, as an individual, have personally failed to adhere to the terms set for the land and to demonstrate that I am personally accountable for their parking charge. They are unable to do so.

Furthermore, the subject of strict compliance with POFA legislation was confirmed in the previously referenced 2015 Annual Report by Henry Greenslade, a parking law expert and former POPLA Lead Adjudicator:

Page 12

‘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.’

 

Page 13

‘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.’

Consequently, there is no legal basis for the operator to seek unpaid parking charges from me as the vehicle’s hirer if the operator is unable to transfer liability for the charge in accordance with POFA.

This precise conclusion was reached in case 6061796103 against Parkingeye Ltd in September 2016, where POPLA Assessor Carly Law stated the following:

‘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

Because Premier Park Ltd does not have proprietary interest in the land, they must provide an unredacted copy of the contract with the landowner. This contract, along with any ‘site agreement’ or ‘User Manual’ specifying details such as exemptions (e.g. for ‘genuine customers’ or ‘genuine residents’) or ‘rights of veto’ for charge cancellations held by the site occupiers is crucial evidence to clarify the operator’s authority. It is essential to determine the circumstances under which the landowner or on-site businesses may cancel a charge. Simply contracting an agent to install signs and issue Parking Charge Notices does not automatically grant the agent authority to form contracts with all types of visiting drivers or to enforce charges in court under their own name. Legal actions related to land use disputes typically fall under the jurisdiction of the landowner.

Witness statements are generally unreliable as evidence in such cases, as they are often pre-signed, generic documents that fail to reference the specific case or site rules. While POPLA might accept a witness statement in certain instances, it is argued that, in this particular case, such a statement is unlikely to adequately demonstrate the scope of services agreed upon by each party.

It would also fail to specify critical details, such as the days and times charges apply, exemption clauses, grace periods, and essential information like the land boundaries and bays where enforcement is or is not applicable. Additionally, it would lack evidence of the various restrictions authorized by the landowner that could result in a charge, as well as clarification of the fees the landowner permits the agent to impose. These fees cannot simply be assumed to match the amount stated in the fine print on signage, as private parking terms and charges listed on templates have been known to differ from the actual agreement with the landowner.

 

Paragraph 14.1 of The Private Parking Sector Single Code of Practice defines the mandatory requirements, and the operator is required to provide strict proof of complete compliance:

‘Where controlled land is being managed on behalf of a landowner(s), before a parking charge can be issued written confirmation must be obtained by the parking operator from the landowner(s) covering:

a) the identity of the landowner(s)

b) a boundary map of the land to be managed;

c) such byelaws as may apply to the land relating to the management of parking;

d) the permission granted to the parking operator by the landowner(s) and the duration of that permission

e) the parking terms and conditions that are to be applied by the parking operator, including as appropriate the duration of free parking permitted, parking tariffs, and specific permissions and exemptions, e.g. for staff, residents or those stopping for short periods such as taxi and minicab drivers, delivery drivers and couriers;

f) the means by which parking charges will be issued;

g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs

h) the obligations under which the parking operator is working, in compliance with this Code and as a member of an ATA;

i) notification of the documentation that the parking operator may be required to supply on request to authorised bodies detailing the relationship with the landowner; and

j) the parking operator’s approach to the handling of appeals against parking charges.’

 

Based on the above incontrovertible grounds, I respectfully request that this Parking Charge Notice appeal is successfully allowed, and I await your decision.

Coupon-mad

Yes that's good. I'd also throw in the 'unclear signs' point for good measure!

ANONYRAY

Thanks @Coupon-mad, please could you  kindly post a link to a recent version of the unclear signs section? 

Coupon-mad

There isn't a recent version and providing a link to the old version would mean I'd have to go and look through the Announcement to find it. Which I never do; it's (honestly) better that you do that because you need to read the third post of the NEWBIES thread anyway.

Le_Kirk

Do you need pages 12 & 13 of Henry's report twice?

garym71

My view is that every separate appeal point should be able to be read in isolation of any of the other points and thus it should include all relevant information about that particular appeal point. If that means repeating some things that were in another appeal point then so be it. It is better that the full context is included within each individual appeal point IMO.

As for including additional appeal points around signage etc. I guess that is something the OP will need to weigh up. For the appeal I recently put together for similar circumstances, I originally had some additional points in the appeal letter but decided to strip them out to avoid detracting too much from the main appeal point (non-compliant Notice to Hirer) which is a POPLA win in it's own right. Often some of the additional appeal points can end up being considered a bit of a moot point and are only really included to try and make the PPC waste their time collating and submitting a load of additional requested information, or in the case of point 3 it is to try and make the PPC reveal unredacted version of their contract with the landowner which they will do everything in their power to avoid providing because if that gets out and is then posted in the public domain it will be gone over and analysed / scrutinised by people with a fine-tooth comb to pick holes in and find any flaws with, so the PPC will need to consider if trying to scam £100 out of someone is really worth revealing their contract(s) for.