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  • FIRST POST
    • BobSmith5
    • By BobSmith5 7th Feb 18, 6:09 PM
    • 27Posts
    • 12Thanks
    BobSmith5
    NTK Received After 4 Weeks
    • #1
    • 7th Feb 18, 6:09 PM
    NTK Received After 4 Weeks 7th Feb 18 at 6:09 PM
    Hi all,

    I was wondering if I could get some advice on a parking ticket I received. The company is ParkingEye, and they have rejected my initial appeal, so now I have a POPLA code.

    The driver had parked in a hotel car park, and used a blue badge. Seems it was not clear that blue badge holders were still required to pay. In any case, the event was on the mid November, and the date of issue is more than three weeks later. However, there is a discrepancy as it also states that the date issued is the nearer Christmas, in the black box with the fine amount. I received the letter on the mid December.

    I understand that based on POFA (2012), there is a time limit for when the ticket must be received. Which seems to be 14 days.

    Is it possible to win the POPLA appeal based on this? Are there any other considerations I ought to make?

    Thank you in advance.
    Last edited by BobSmith5; 07-02-2018 at 9:56 PM.
Page 2
    • BobSmith5
    • By BobSmith5 12th Feb 18, 3:58 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    Oh wait... are you saying post #13 is a PoPLA appeal?
    Originally posted by KeithP
    Yes. Will that suffice or no?
    • Coupon-mad
    • By Coupon-mad 12th Feb 18, 3:59 PM
    • 56,149 Posts
    • 69,807 Thanks
    Coupon-mad
    Your letter in #13 is not a POPLA appeal. That's a very basic first appeal. That's what threw us!

    There's no paragraph regarding PFA on my NTK.
    Why not search the forum for 'ParkingEye golden ticket POPLA'. We assume you did read post #3 of the NEWBIES FAQS thread already, which gives you the POPLA template points.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • BobSmith5
    • By BobSmith5 12th Feb 18, 5:02 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    Your letter in #13 is not a POPLA appeal. That's a very basic first appeal. That's what threw us!

    Why not search the forum for 'ParkingEye golden ticket POPLA'. We assume you did read post #3 of the NEWBIES FAQS thread already, which gives you the POPLA template points.
    Originally posted by Coupon-mad
    Oh, sorry. I have been reading it, but find it confusing. I will try again.

    When ParkingEye sent the rejection, they did not tell me how long I have to appeal to POPLA. Is that known?
    • Coupon-mad
    • By Coupon-mad 12th Feb 18, 5:06 PM
    • 56,149 Posts
    • 69,807 Thanks
    Coupon-mad
    32 days approx.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • BobSmith5
    • By BobSmith5 17th Feb 18, 4:20 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    32 days approx.
    Originally posted by Coupon-mad
    Hi,
    I've tried to draft another appeal using points I've found across various posts. Would it be possible to check it for me, as I still find this rather confusing. I don't think I have much longer left to send my appeal to POPLA. Unfortunately, due to illness, I've not had much time to do it earlier.

    Dear POPLA,

    A Notice to Keeper (NTK) was issued on the xxxx, and received by myself, the registered keeper of the vehicle. I am writing to appeal this ticket on the following grounds:
    1) The NTK fails to comply with the Protection of Freedoms Act 2012.
    2) No keeper liability.
    3) The operator has failed to adhere to the British Parking Association Code of Practice regarding Disabled Motorists.
    4) The amount claimed is not a genuine pre-estimate of loss to the landowner.

    1. The NTK fails to comply with the POFA 2012.
    To support this claim further the following areas of dispute are raised:
    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

    Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on xxxx. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is xxxx and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on xxxx (i.e. outside of the relevant period).

    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

    POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
    The notice must be given by—
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii) 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;
    Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

    2. No keeper liability
    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. 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 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.

    3. Failure to adhere to BPA regarding disabled motorists.
    The BPA Code of Practice highlights under section 16.5, that a vehicle displaying a valid Blue Badge must not be issued with a parking charge notice; “if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.”

    The car was parked in a disabled bay, at the time of the contravention. Badge number provided in additional documents.

    4. Amount claimed is not a genuine pre-estimate of loss.
    The demand for a payment of £100 as noted within the Parking Charge is unreasonable and exceeds any appropriate amount of loss suffered by the Landowner. There was no damage nor obstruction caused, so there can be no loss arising from the incident.!

    In this case ParkingEye Ltd. has failed to provide any calculation to show how the £100 penalty charge was arrived at, and whether it is an actual or pre-estimated loss. Given that ParkingEye Ltd. charge the same fixed charge to any alleged breach of contract (whether serious/damaging, or trifling in this case), and that the claimed £100, with 40% discount for prompt payment, is the maximum penalty allowed without prior justification to the BPA (section 19.5 & 19.6, BPA Code of Practice), it is clear that there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss and that ParkingEye Ltd is exploiting section 19 of the BPA code of practice. Under section 19 of the BPA Code of Practice it states the following:
    19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
    • When a motorist breaks the terms and conditions of a parking contract
    • When a motorist trespasses by parking without permission
    • Agreed charges that are advertised in the contract

    Based on the information offered it would suggest that the figure being demanded is not a genuine pre-estimate loss earning due to the fact that operational costs, such as the installing and the maintenance of equipment should not be included.

    Thank you.
    • KeithP
    • By KeithP 17th Feb 18, 5:13 PM
    • 6,617 Posts
    • 5,801 Thanks
    KeithP
    I am the appellant throughout (as I am entitled to be)...
    Of course you are - you're writing the appeal.
    That should say "I am the keeper throughout".


    The BPA Code of Practice highlights under section 16.5, that a vehicle displaying a valid Blue Badge must not be issued with a parking charge notice; !!!8220;if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.!!!8221;
    When did your parking incident take place?
    There has been no clause 16.5 in the BPA CoP since 01 October 2015.


    Your point 4. is also way out of date.


    Where did you get this from?

    You need to find a more recent starting point.
    Pick one from 2017 only.

    I did suggest earlier:
    As well as no keeper liability consider -
    Signage
    No Landowner Authority
    Originally posted by KeithP
    ...but you appear to have decided against using those points.
    Last edited by KeithP; 17-02-2018 at 5:22 PM.
    .
    • BobSmith5
    • By BobSmith5 17th Feb 18, 9:20 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    Of course you are - you're writing the appeal.
    That should say "I am the keeper throughout".

    When did your parking incident take place?
    There has been no clause 16.5 in the BPA CoP since 01 October 2015.

    Your point 4. is also way out of date.

    Where did you get this from?

    You need to find a more recent starting point.
    Pick one from 2017 only.

    I did suggest earlier:

    ...but you appear to have decided against using those points.
    Originally posted by KeithP
    Hi Keith.
    Thank you for the suggestions. I searched for 'Golden Ticket' and copy and pasted the points.

    The incident took place last November.

    Regarding the Blue Badge, I got the point from the BPA CoP,
    but I think I may have opened a previous version.
    I've looked at the up to date version,
    and point B2.1 d states:
    The following vehicles must not be issued with a parking
    ticket:
    vehicles displaying a valid disabled (blue) badge when
    the landowner provides a concession for disabled
    people.


    Am I able to use this point?

    In regards to the signage, I'm not able to get photographs of the sign, so I'm not sure if I am able to use this point?
    Regarding landowner authority, it was a hotel car park. Can this still be used?

    Thank you, again.
    • Quentin
    • By Quentin 17th Feb 18, 9:30 PM
    • 35,126 Posts
    • 19,221 Thanks
    Quentin
    Regarding the Blue Badge, I got the point from the BPA CoP,
    but I think I may have opened a previous version.
    I've looked at the up to date version,
    and point B2.1 d states:
    The following vehicles must not be issued with a parking
    ticket:
    vehicles displaying a valid disabled (blue) badge when
    the landowner provides a concession for disabled
    people.


    Am I able to use this point?
    Originally posted by BobSmith5
    What do you see is the concession for BB holders?


    Isn't the issue that the driver parked, displayed the bb but didn't pay (ie there was no concession for bb holders)
    • BobSmith5
    • By BobSmith5 17th Feb 18, 9:36 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    What do you see is the concession for BB holders?

    Isn't the issue that the driver parked, displayed the bb but didn't pay (ie there was no concession for bb holders)
    Originally posted by Quentin
    Providing the disabled bays? Does that not count?
    • Quentin
    • By Quentin 17th Feb 18, 9:57 PM
    • 35,126 Posts
    • 19,221 Thanks
    Quentin
    A concession is usually a reduction (as in reduced admission prices for unwaged/pensioners etc)


    In a car park a concession for BB holders would be free parking where others have to pay or reduced parking charges.
    • BobSmith5
    • By BobSmith5 19th Feb 18, 6:21 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    Hi all,

    I have updated my appeal to POPLA, using the suggestions. Please could someone look over it for me? It's largely a copy and paste job. Apologies, as I can't quite wrap my head around over the terminology enough. Thank you.

    Dear POPLA,

    A Notice to Keeper (NTK) was issued on the xxxx, and received by myself, the registered keeper of the vehicle. I am writing to appeal this ticket on the following grounds:
    1) The NTK fails to comply with the Protection of Freedoms Act 2012.
    2) No keeper liability.
    3) No Evidence of landowner authority
    4) Insufficient signage

    1. The NTK fails to comply with the POFA 2012.
    To support this claim further the following areas of dispute are raised:
    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

    Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on xxxx. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is xxxx and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on xxxx (i.e. outside of the relevant period).

    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

    POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
    The notice must be given by—
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii) 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;
    Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

    2. No keeper liability
    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. I am the keeper 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 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.

    3. No evidence of landowner authority
    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:

    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

    4. Insufficient signage
    Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visable in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visable to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
    • KeithP
    • By KeithP 19th Feb 18, 6:35 PM
    • 6,617 Posts
    • 5,801 Thanks
    KeithP
    Your signage section seems a little short.
    Did you see this linked from the NEWBIES thread:
    http://forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341

    And what about 'The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge':
    http://forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342'
    which should follow directly the 'no keeper liability' point.
    .
    • Umkomaas
    • By Umkomaas 19th Feb 18, 6:40 PM
    • 17,279 Posts
    • 27,225 Thanks
    Umkomaas
    Skim read.

    1. The NTK fails to comply with the POFA 2012.
    You need to provide dates (or other details) to prove this.

    4. Insufficient signage
    Why not use the template appeal point from the NEWBIES FAQ sticky, post #3?

    their own images of the vehicle included on the PCN disprove this because no signage is visable in said images.
    Visible.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • BobSmith5
    • By BobSmith5 19th Feb 18, 6:41 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    Your signage section seems a little short.
    Did you see this linked from the NEWBIES thread:
    http://forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341

    And what about 'The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge':
    http://forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342'
    which should follow directly the 'no keeper liability' point.
    Originally posted by KeithP
    Thank you. Should I be copying and pasting the entirety of those points in?
    • KeithP
    • By KeithP 19th Feb 18, 6:50 PM
    • 6,617 Posts
    • 5,801 Thanks
    KeithP
    Thank you. Should I be copying and pasting the entirety of those points in?
    Originally posted by BobSmith5
    For signage - it says in the NEWBIES thread: don't cut it down!

    You appear to have part of my second point already.
    Just need to add the paras starting 'Furthermore, the vital matter...' following the sentence 'They cannot' in your appeal.
    .
    • BobSmith5
    • By BobSmith5 19th Feb 18, 6:55 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    For signage - it says in the NEWBIES thread: don't cut it down!

    You appear to have part of my second point already.
    Just need to add the paras starting 'Furthermore, the vital matter...' following the sentence 'They cannot' in your appeal.
    Originally posted by KeithP
    Thank you again. Apologies for going in circles. So, I've pasted in the points entirely. Regarding the first point of POFA not being complied with, I thought this was the case because I received the NTK a month after the incident. Is this a valid point?

    How is this:


    Dear POPLA,

    A Notice to Keeper (NTK) was issued on the xxxx, and received by myself, the registered keeper of the vehicle. I am writing to appeal this ticket on the following grounds:
    1) The NTK fails to comply with the Protection of Freedoms Act 2012.
    2) No keeper liability.
    3) No Evidence of landowner authority
    4) Insufficient signage

    1. The NTK fails to comply with the POFA 2012.
    To support this claim further the following areas of dispute are raised:
    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

    Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on xxxx. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so !!!8220;given!!!8221; for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose !!!8220;working day!!!8221; means any day other than a Saturday, Sunday or a public holiday in England and Wales. The !!!8220;Letter Date!!!8221; stated on the PCN is xxxx and in accordance with sub-paragraph 9 (6) is presumed to have been !!!8220;given!!!8221; on xxxx (i.e. outside of the relevant period).

    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

    POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
    The notice must be given by!!!8212;
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given!!!8212;
    (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii) 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;
    Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

    2. 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. 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 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.''

    3. No evidence of landowner authority
    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:

    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

    4. Insufficient signage
    The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    http://imgur.com/a/AkMCN

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2!!!8221; letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3!!!8221; or even larger.''

    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
    • BobSmith5
    • By BobSmith5 19th Feb 18, 6:56 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    Skim read.


    You need to provide dates (or other details) to prove this.


    Why not use the template appeal point from the NEWBIES FAQ sticky, post #3?


    Visible.
    Originally posted by Umkomaas
    I received the NTK 4 weeks after the incident. I provided the dates in the appeal, but hid them on the advise of others in this thread. Is this valid?
    • Umkomaas
    • By Umkomaas 19th Feb 18, 7:06 PM
    • 17,279 Posts
    • 27,225 Thanks
    Umkomaas
    I received the NTK 4 weeks after the incident. I provided the dates in the appeal, but hid them on the advise of others in this thread. Is this valid?
    Originally posted by BobSmith5
    You need to spell it out - Fisher Price stylee - to POPLA. Don't leave any potential winning point to chance.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • BobSmith5
    • By BobSmith5 19th Feb 18, 7:09 PM
    • 27 Posts
    • 12 Thanks
    BobSmith5
    You need to spell it out - Fisher Price stylee - to POPLA. Don't leave any potential winning point to chance.
    Originally posted by Umkomaas
    Should I replace what I have with this?
    • Umkomaas
    • By Umkomaas 19th Feb 18, 7:18 PM
    • 17,279 Posts
    • 27,225 Thanks
    Umkomaas
    Should I replace what I have with this?
    Originally posted by BobSmith5
    That link is full of this crud.

    8217;!!!8217;
    I can't be reading all that!

    What are the basics that you are saying don't meet PoFA requirements? Spell it out in your POPLA appeal. Don't deal in riddles.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
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