ANPR final reminder notice

Redx wrote: »

if the driver was on site then the driver should have paid, they did "park" even if it wasnt in a bay and even if the engine was running, they were stopped on a car park or bay or private land, no question


BUT


as keeper, unless the PPC can prove liability under POFA2012 they have missed the 14 day deadline for the NTK


I would have appealed using the blue text template in the NEWBIES FAQ sticky thread, then took it from there


if this is really an UNDERGROUND car park and so railway land, then POFA2012 does not apply and the pcn "times out" after 6 months as a penalty notice and if that is the case it can only be dealt with in MAGS court if bylaws apply (yes , it is complicated)


so I am assuming that bylaws apply and after 6 months the TOC can do nothing at all and there is no keeper liability


so if it isnt cancelled, plus if they fail to issue a POPLA code , string it out as keeper past 6 months


read other railway station threads, especially INDIGO ones, to see why


as I said , its complicated. but you did ask !!

KeithP wrote: »

Then appeal to PoPLA.

With a late NtK, or bylaws taking precedence, it should be an easy win for a keeper appellant.

KeithP wrote: »

Post your draft PoPLA appeal here when you are ready.
The clock is ticking.

PCN Number: XXXXXXXXXX
POPLA Verification Code: XXXXXXXXXX

I write to you as the registered keeper of the vehicle XXXX XXX and outline my appeal below

1. No Keeper Liability
2. Railway Land is Not ‘Relevant Land’
3. No standing or authority to neither pursue charges nor form contracts with drivers.
4. Unclear and non-compliant signage, forming no contract with drivers.
5. Disproportionate private parking charge.

1. No Keeper Liability

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.!

In this case, no other party apart from an evidenced driver can be told to pay. 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.!

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.''

2. Railway Land is Not ‘Relevant Land’

The NCP operated car park at XXXX XXXXXX London Underground Station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises.!

The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)©. It says that “relevant land” means any land other than that on which the parking of a vehicle is subject to “statutory control.”

A Byelaw is a long standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

On the basis that Byelaws cover this station , it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.

3. No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, NCP must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put NCP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between NCP and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to NCP.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.