PCN Park Watch Antelope Park Southampton

4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. No standing or authority to pursue charges nor form contracts with drivers.

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.


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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply.


Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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:
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

5. This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant.


There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.


Park Watch have failed to fulfill the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-


!!!8217;!!!8217;The notice must be given by!!!8212;


(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.!!!8217;!!!8217;


The applicable section here is (b) because the NTK was delivered by post.


Furthermore,
paragraph 9(5) states:


!!!8217;!!!8217;The relevant period...
is the period of 14 days beginning with the day after that on which the specified period of parking ended!!!8217;!!!8217;


The NTK sent to myself as Registered Keeper arrived and was delivered into my letterbox some 17 days after the alleged incident .
xxxxxxx alleged infringement. xxxxx Notice Issue date. Received xxxxxx. Read by myself at xxxx


The alleged infringement occurred on xxxx and from my understanding the NTK was required to reach me by a period of 14 days. It did not.


Therefore failing to comply within the 'relevant period' as required under paragraph 9(4)(b). This means that Park Watch have failed to act in time for keeper liability to apply, therefore, there is no keeper liability possible.



As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times that a parking charge with no NTK cannot be enforced against the registered keeper.

Schedule 4 of POFA 2012 which applies in England/Wales
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

I had the opportunity to reply to the evidence from the operator which had old signage not current. This was my reply;