Newbie POPLA Appeal Advice

Hi All,

Thank you for your help yesterday, I've now amended my first draft so it should hopefully read a little better now, 2nd draft below. Do you think that this is a strong enough argument to submit to POPLA or is there anything obvious that I have missed and need to add in?

Many Thanks :-)

Re: Parking Charge reference number: xxxxxx
Vehicle registration: xxxxxxx
POPLA reference number xxxxxx

I am the registered keeper of the above vehicle and I wish to appeal the above parking charge from Total Parking Solutions (TPS) issued at xxxx on xxx, xxxx. I submit the points below to show that I am not liable for the parking charge.

1) Non-compliant Notice to Keeper
2) No evidence that the occupants of the car and/or driver left the site.
3) The operator has not shown that the individual who it is pursuing is in fact the driver
4) No standing or authority to pursue charges nor form contracts with drivers.
5) The signage was not adequate so there was no valid contract formed.


1) No Keeper Liability: The Notice to Keeper is not compliant with the POFA 2012.

TPS have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.

Non-compliant Notice to Keeper

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor [...] (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in FULL accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has subsequent notice to keeper MUST be given in accordance with paragraph 8.’

TPS have sent a document which fails to repeat the information on the PCN and fails to state any 'period of parking' (which is a period of time in excess of any grace period - i.e. certainly more than ten minutes - and not merely a single 'time of issue' of a PCN which is not the same information in law). As TPS have evidently failed to serve a legally compliant ‘notice to keeper’ by failing to show an applicable and stated 'period of parking' they have consequently failed to meet the second condition for keeper liability.

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK which incorporates ALL the mandatory information set out in Schedule 4. These are prescribed requirements under statute and a 'period of parking' timeline of observation of the vehicle remaining stationary for longer than any BPA CoP grace period cannot be omitted and replaced with a 'time issued' by any stretch of the imagination.

Nor is it allowable for an observation time spanning some minutes to merely appear on a windscreen PCN but then for that information to be inexplicably omitted from the NTK, because the second document MUST 'repeat the information' in the PCN.

2) No transparent 'relevant contract' nor 'relevant obligation' capable of being breached - nor agreed to in the knowledge of £70 parking charge - by a driver.

There was no transparent 'relevant contract' nor 'relevant obligation' capable of being breached, nor was any such risk accepted by a driver in the knowledge of £70 parking charge.

The so-called parking charge was given because the “vehicle owner / driver” were alleged to have “left the site”. However, the operator has provided no evidence to support this, nor that this is a contravention authorised by the landowner in any contract TPS hold.

I therefore put TPS to strict proof of any/all occupants of the car “leaving the site” and evidence that a 'relevant obligation' was created not to leave the site. This would require a clear sign near the car, in legible and prominent font in very large letters suitable for outdoor signage, informing the driver of ALL of the following:

(a) the boundary edges of the site (e.g. a map on the sign would be needed to pass the test of transparency of terms as set out in the CRA 2015)

(b) a transparently stated obligation not to leave that 'site' as defined in signage

(c) clear information as to whether this applies to passengers as well as a driver

(d) clear and prominent information about any £70 charge in the same sort of prominent and 'very large lettering' as impressed the Judges in the Beavis case.

All of the above were absent (unreadable or hidden in small print, if there at all).

On the balance of probabilities, it is vanishingly unlikely in this age of people only just making ends meet, that a reasonably circumspect and careful driver would 'accept' £70 charge in this situation even if a contravention did occur (which is denied). It is also vanishingly unlikely and improbable that all of the occupants of the car left the area after parking and the evidence of this is conspicuous by its absence. Even if TPS have evidence of which occupant was driving or where that person went it is confidently submitted that the driver was not given 'adequate notice' of the alleged terms because no-one who drives this vehicle would ever knowingly agree to pay £70 to park for what seems to be a minute, which exceeds the annual cost of airport parking for two weeks and which is a hundred times the £1 fee the Council would charge to park on street at meters outside this location.

Inadequate notice of the parking charge and any obligations/contract terms, indisputably fails Schedule 4. The keeper of this car cannot be liable and as that is me, the appellant, POPLA will be unable to find this PCN (and the NTK which followed) was properly given.


3) The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.

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.''


4) No standing or authority from landowner to pursue charges.

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this 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, just because an agent is contracted to merely put some signs up 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 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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:


• the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

• any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

• any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

• who has the responsibility for putting up and maintaining signs

• the definition of the services provided by each party to the agreement.

5) The car park signage was not compliant so there was no valid contract formed between TPS and the driver.

Unreadable signage breaches section 18 in Appendix B of the BPA CoP. Section 18.2 requires operators to fully comply with the following on entrance signage:

“18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

This clearly requires that the entrance signs and the terms written on them must be in clear view of the driver without he/she having to turn away from the road ahead. The entrance to this car park has no signs that are in direct view of the driver as he/she approaches the car park entrance (see photo).

Section 18.3 requires operators to fully comply with the following on specific parking-terms signage:

“18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

If a driver cannot read the sum of the parking charge (£70) before parking - because the font is too small and the sign too high to read from a driver's seat - then they cannot have agreed to it. The signs in this car park are placed in an elevated position on poles and, as such, are not sufficiently prominent that they can be seen by the occupants of a car. Indeed, the photo supplied by TPS themselves (see below) clearly shows the angle of elevation of the signs and the inadequate font size used to describe the details on it. The Operator's 'parking charges' were therefore not sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

This concludes my POPLA appeal. I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully,