JD Parking Consultants POPLA appeal - Leeds Faversham

Hi,
Thanks for your swift reply! I totally understand, just struggling to know exactly what to write. I have been researching for quite some time and this seems to be the most relevant POPLA appeal I have been able to find and adapt.

Would be really grateful if people could have a look and offer any advice!


Vehicle Registration Number xxxxxxxx
PCN Reference xxxxxxxxxxx
Issued by JD Parking Consultants Limited


As the registered keeper of the above vehicle, I wish to appeal the parking charge notice JD Parking Consultants issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Landowner Authority
3) Lack of legible signage – no contract with driver
4) The unclear signs and lack of proof of any legitimate interest/any right to sue customers/any authorised limit distinguishes this matter from the ParkingEye v Beavis case.
5) Absent any contract, only the landowner could claim nominal damages for trespass

************************************************** **********

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

I set out below a non-exhaustive list of reasons why JD Parking Consultant's Notice to Keeper failed to comply with Schedule 4 of POFA:

(i) Contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the date and time when the vehicle allegedly entered the car park; the time specified does not equate to any single evidenced period of parking. There is no evidence of a single period of parking and this cannot reasonably be assumed on the balance of probabilities.

I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly here in Schedule 4, to reiterate the importance of parking evidence:


(ii) ''9 (3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)...''


(iii) Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

BOTH the above prescribed requirements must be stated in the NTK and they were not.

(iv) Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

The NTK fails to include all of the above wording, as prescribed under the statute.

(v) Contrary to the requirements of Paragraph 9(2)(f), this NTK fails in the prescribed requirement - in exact words and with the correct deadline - to:

''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;''


(vi) Contrary to the requirements of Paragraph 9(2)(h), the Notice to Keeper does not identify the creditor and specify how and to whom payment or notification to the creditor may be made;


(vii) Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

Consequently, JD Parking Consultants Limited has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If JD Parking Consultants should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

(Here will be a relevant URL)

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.”

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 (or a person acting for or on behalf of the creditor)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report:

''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''


2) No landowner Authority

I question JD Parking Consultant’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put JD Parking Consultants to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question JD Parking Consultant's legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that JD Parking Consultants is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that JD Parking Consultants are certainly not empowered by the landowner to sue customers and visitors in the related car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put JD Parking Consultants to strict proof of compliance with all of the above requirements.

So, I contend that the contract - if this operator produces one - does not reflect the poor signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

There is no proof of a contract; If JD Parking Consultants produce a contract it will not suffice unless it is accompanied by a letter of ongoing authority from the principal to the contract. ie the landowner of the pub.

I require JD Parking Consultants to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for JD Parking Consultants merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.


3) Lack of signage – no contract with driver - no adequate notice of the charge

I am the registered keeper and the driver has not been identified and I have no obligation to assist an operator in this regard. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

For the purposes of this appeal, I have now visited this same car park that this operator alleges was the site of a 'contract' being formed. In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

The parking charge itself is not in 'large lettering'. When I visited recently for evidence and information to help with this appeal, I was specifically seeking out the signs and terms and still could not read the parking charge when expressly looking for it.

They must show photos of the signs as the driver would seem them from a driver's seat, upon entering the car park.

A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. I question the fact that the driver saw any sign like that and so there was no consideration or acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.


4) The unclear signs and lack of proof of any legitimate interest/any right to sue customers/any authorised limit distinguishes this matter from the ParkingEye v Beavis case.

BOTH parties are obliged to show how any case law they wish to rely upon, applies to and assists their own case. I can demonstrate that the ParkingEye v Beavis case assists my appeal.

The reference in the Beavis case, to the need for clear, unambiguous terms and the parking charge and restrictions being copiously displayed and in 'large lettering' assists my position. Each case must turn on its own facts and much depends upon how an operator presents its own case because every car park and every charge and documents and dates and facts and interests, are different.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''
Yours sincerely
R Reeve
POPLA Administrative Team

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about liability and certainly are not empowered as an ADR, to impose the Beavis case arbitrarily upon all cases as if it is a 'silver bullet'. No case law about a single parking charge in a particular car park with different facts and its own signage, can possibly be a silver bullet striking out appeals regarding all other car parks/charges.

There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks. It certainly does not 'supersede' all other points and each case must still turn on its own facts (and I am not even arguing about any 'GPEOL'!). Much more was said in the Parking Eye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine where I state that, due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum and lack of legitimate interest and authority, the Beavis case does not assist them at all.

5) Absent any contract, only the landowner could claim nominal damages for trespass

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate sum that a landowner (only) could seek would be damages. As there was no damage to the car park there was no loss at all and therefore there should be no charge; any charge at all could only be nominal - to cover actual loss. Charges cannot be issued under the tort of trespass by a third party with no title in the land (this was confirmed in the Beavis decision).

I have made my detailed submission to show how the applicable law (POFA), case law (Beavis) and the BPA Code of Practice undoubtedly supports my appeal, which I submit should now be determined in my favour.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours sincerely,

Registered Keeper

Thanks, will definitely do that and will see if anyone has other suggestions too. I don't have any images of the signage as I'm not from around there, will this be a hinderance as well?

Thanks for the quick advice!

but you definitely think I should appeal and not pay at this stage?

I get that, I guess a better question is ; do you know of any other outcomes with this company or do you know in general how POPLA proceedings have gone with similar cases? As I can't seem to find an outcome with this same company. Also is it likely that these things go to court now if POPLA is rejected?

Understanding those questions would help me make my decision I think!

Thanks!