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  • FIRST POST
    • YorkshireRose13
    • By YorkshireRose13 12th Mar 18, 10:03 PM
    • 3Posts
    • 1Thanks
    YorkshireRose13
    FlashPark POPLA appeal - thoughts please
    • #1
    • 12th Mar 18, 10:03 PM
    FlashPark POPLA appeal - thoughts please 12th Mar 18 at 10:03 PM
    Hi
    My Son received an NTK from Flashpark, the named contravention being "Permitted Parking Only". The initial appeal to Flashpark was rejected and a POPLA code issued.
    I have prepared the following POPLA appeal and would be hugely grateful if someone could have a look over it for me. Any suggestions would be appreciated. Thanks so much


    "Dear Sirs

    Ticket number: xxxxx

    Vehicle registration number: xxxxx

    POPLA appeal code XXXXXX

    I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Flashpark as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at JC Carpets, GWR Station Yard, Windsor Rd, Salisbury, SP2 7RL on 10 February 2018. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

    When I initially raised my dispute with Flashpark, I took great care to explain why it had no valid claim and I was therefore very disappointed to receive from Flashpark a rejection letter that was very clearly a standard template.

    I set out below the principal reasons why I am not liable for this parking charge”.
    On the “date” I received a PCN in the post for an alleged contravention with a contravention date of “date”. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.

    The date of the PCN was labelled as “date” with an outstanding amount of £85 which would be reduced to £55 if it was paid within 14 days.

    I submit the points below to show that I am not liable for the parking charge:

    1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability



    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

    3. Any discounts for paying within 14 days should be at least 40%

    4. Not Relevant Land under POFA 2012, no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    6. Ambiguous, inadequate and non-compliant signage - no valid contract formed between Flashpark and the driver

    7. Case can be distinguished from ParkingEye v Beavis

    8. The operator has not allowed for the BPA's mandatory Grace Periods



    1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

    The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions.
    Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper.


    The NTK issued on 14 February 2018 does not;
    • state the period the car was parked
    • State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when

      As this information is not present then the NTK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with.
    The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability

    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)



    Flashpark has failed to show that the individual who it is pursuing is in fact 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 Flashpark, 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."

    3. Any discounts for paying within 14 days should be at least 40%
    The original PCN cost is £85 with a reduction to £55 if paid within 14 days this should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice.Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

    The charge was 'not properly given' in view of a very clear breach of basic charge amounts set out by the BPA. Compliance with this Code was considered to be 'a form of regulation' in ParkingEye v Beavis.

    4. Not Relevant Land under POFA 2012, no registered keeper liability (ref POPLA case Steve Macallan 6062356150)



    The signage at the entrance to the car park states “Vehicles parked are subject to the Railway Byelaws and Conditions”.


    The car park is therefore not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. I am not legally liable as the POFA does not apply on this land.


    Flashpark is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case GWR, and any liquidated damages for breach of contract would be owed to the landowner, not to Flashpark. Flashpark has provided no details showing their authority to exercise parking controls on railway land, nor provided contact details at the GWR.


    POPLA assessor Steve Macallan found in September 2016, ref in 606235615, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.
    ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer’



    I put it to Flashpark to provide strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the land owner that this land is not already covered by bylaws.


    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    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.

    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




    6. Ambiguous, inadequate and non-compliant signage - no valid contract formed between Flashpark and the driver
    Flaskpark have not placed any signage at either side of the car park entrance, therefore you have not given the “adequate notice” as required by Schedule 4 of the POFA
    Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual 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. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by Flashpark in respect of the alleged event.

    There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms.

    In addition to the absence of signage at the entrance to the car park and the signs nearest to the location my vehicle was parked were not prominent, clear or legible and there is insufficient notice of the sum of the parking charge itself.

    There was no contract or 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.

    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.

    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.

    Additionally, Section 2.7 of the BPA Code of Practice states that “All AOS members must make sure that the AOS logo is prominently displayed in all their car parks, and make it clear to the public that they are governed by the Code.”

    7. Case can be distinguished from ParkingEye v Beavis

    In its parking charge notice, Flashpark has failed to provide sufficient evidence to justify the £85 loss the landowner might have incurred for the alleged contravention.


    The contract entered into between the driver and Flashpark is a simple consumer contract.

    This makes plain that the sum of £85 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.

    As this is a simple contract, any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.

    Flashpark's £85 PCN is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable. If Flashpark believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

    I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places.

    Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.



    What the Appeal Court said in ParkingEye v Beavis. This was not contradicted by the Supreme Court so this stands as part of that binding decision and sets pay and display car parks (simple contracts, defined by the sum of the tariff) as 'entirely different':

    At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC!!!8217;s findings, and opined at paragraph 27 thathe application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.


    In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, [...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,..

    The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

    Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest the operator has in enforcing their (out of all proportion to the tariff) charge is profit alone.

    This position is reinforced in the earlier findings in the Beavis case from the Court of Appeal, where the judgment states:

    "44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

    45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

    47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

    The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148: But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.;

    The Consumer Rights Act 2015 shows this case law still holds because it includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed. This is the fundamental legislation relating to standard contracts between traders and consumers and it is undoubtedly applicable to this case.

    The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before. The Beavis decision is not a silver bullet and is incapable of striking out appeals and superseding trite law relating to other parking charges with different facts and, in particular, a monetary tariff.

    Any reliance on the Supreme Court judgment in the case of ParkingEye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.



    8) The operator has not allowed for the BPA's mandatory Grace Periods

    In the BPA Code of Practice:

    13 Grace periods
    13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

    The driver left the site within the 10 minute grace period however the parking fine was issued within that time.

    It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point."
Page 1
    • Coupon-mad
    • By Coupon-mad 12th Mar 18, 10:12 PM
    • 57,449 Posts
    • 71,036 Thanks
    Coupon-mad
    • #2
    • 12th Mar 18, 10:12 PM
    • #2
    • 12th Mar 18, 10:12 PM
    Good point:
    3. Any discounts for paying within 14 days should be at least 40%
    The original PCN cost is £85 with a reduction to £55 if paid within 14 days this should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice.Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
    I am a bit confused that you mention a Notice to Driver (PCN on the windscreen) which is rare for FlashPark. And you mention a NTK, but that cannot have been sent for a month after. Did you get both documents all within the last month, surely not?


    What do you mean by this, that the car was only on site for less than ten minutes?
    The driver left the site within the 10 minute grace period however the parking fine was issued within that time.
    It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point."
    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.

    • Umkomaas
    • By Umkomaas 13th Mar 18, 6:25 AM
    • 17,575 Posts
    • 27,786 Thanks
    Umkomaas
    • #3
    • 13th Mar 18, 6:25 AM
    • #3
    • 13th Mar 18, 6:25 AM
    At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC!!!8217;s findings, and opined at paragraph 27 that he application in a case of this kind of a rule based on a simple comparison
    Make sure to get rid of the clapping emoji before submission. You've likely placed a capital T immediately after a colon.
    Last edited by Umkomaas; 13-03-2018 at 6:31 AM.
    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.
    • The Deep
    • By The Deep 13th Mar 18, 8:04 AM
    • 9,208 Posts
    • 8,972 Thanks
    The Deep
    • #4
    • 13th Mar 18, 8:04 AM
    • #4
    • 13th Mar 18, 8:04 AM
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

    Parking Eye, CPM, Smart, and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose) and have been reported to the regulatory authority by an M.P.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.
    You never know how far you can go until you go too far.
    • YorkshireRose13
    • By YorkshireRose13 13th Mar 18, 7:31 PM
    • 3 Posts
    • 1 Thanks
    YorkshireRose13
    • #5
    • 13th Mar 18, 7:31 PM
    • #5
    • 13th Mar 18, 7:31 PM
    Hi Coupon Mad
    Apologies, there was no PCN, I need to edit this. The only notice was the NTK received in the post dated 14/2.
    Yes, the car was in the car park for less than 10 minutes
    • Coupon-mad
    • By Coupon-mad 14th Mar 18, 1:36 AM
    • 57,449 Posts
    • 71,036 Thanks
    Coupon-mad
    • #6
    • 14th Mar 18, 1:36 AM
    • #6
    • 14th Mar 18, 1:36 AM
    Your point #1 about the NTK should concentrate on the date it was served then, if it was weeks later than the 14 days required for keeper liability.

    Can we see your next draft?
    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.

    • YorkshireRose13
    • By YorkshireRose13 14th Mar 18, 9:11 PM
    • 3 Posts
    • 1 Thanks
    YorkshireRose13
    • #7
    • 14th Mar 18, 9:11 PM
    • #7
    • 14th Mar 18, 9:11 PM
    The NTK was served promptly - should I remove this point, as the non compliance is only in respect of two items of mandatory information??






    I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Flashpark as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at JC Carpets, GWR Station Yard, Windsor Rd, Salisbury, SP2 7RL on 10 February 2018. I confirm that I am the vehicle!!!8217;s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (!!!8220;POFA!!!8221.

    When I initially raised my dispute with Flashpark, I took great care to explain why it had no valid claim and I was therefore very disappointed to receive from Flashpark a rejection letter that was very clearly a standard template.

    I set out below the principal reasons why I am not liable for this parking charge!!!8221;.
    I received a NTK in the post for an alleged contravention with a contravention date of 10 February 2018. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.

    The date of the NTK was labelled as 14 February 2018 with an outstanding amount of £85 which would be reduced to £55 if it was paid within 14 days.

    I submit the points below to show that I am not liable for the parking charge:

    1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability



    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

    3. Any discounts for paying within 14 days should be at least 40%

    4. Not Relevant Land under POFA 2012, no registered keeper liability (ref POPLA case Steve Macallan 6062356150)



    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    6. Ambiguous, inadequate and non-compliant signage - no valid contract formed between Flashpark and the driver



    7. Case can be distinguished from ParkingEye v Beavis



    8. The operator has not allowed for the BPA's mandatory Grace Periods





    1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

    The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions.


    Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper.





    The NTK issued on 14 February 2018 does not;





    • state the period the car was parked
    • State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when

      As this information is not present then the NTK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with.


    The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability



    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)



    Flashpark has failed to show that the individual who it is pursuing is in fact 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 Flashpark, 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

    !!!8220;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 !!!8216;reasonable presumption!!!8217; 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."

    3. Any discounts for paying within 14 days should be at least 40%
    The original NTK cost is £85 with a reduction to £55 if paid within 14 days this should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice.Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the NTK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

    The charge was 'not properly given' in view of a very clear breach of basic charge amounts set out by the BPA. Compliance with this Code was considered to be 'a form of regulation' in ParkingEye v Beavis.

    4. Not Relevant Land under POFA 2012, no registered keeper liability (ref POPLA case Steve Macallan 6062356150)



    The signage at the entrance to the car park states !!!8220;Vehicles parked are subject to the Railway Byelaws and Conditions!!!8221;.


    The car park is therefore not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. I am not legally liable as the POFA does not apply on this land.


    Flashpark is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case GWR, and any liquidated damages for breach of contract would be owed to the landowner, not to Flashpark. Flashpark has provided no details showing their authority to exercise parking controls on railway land, nor provided contact details at the GWR.


    POPLA assessor Steve Macallan found in September 2016, ref in 606235615, that land under statutory control cannot be considered !!!8216;relevant land!!!8217; for the purposes of POFA 2012.
    !!!8216;As the site is not located on !!!8216;relevant land!!!8217;, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer!!!8217;



    I put it to Flashpark to provide strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the land owner that this land is not already covered by bylaws.


    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    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.

    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





    6. Ambiguous, inadequate and non-compliant signage - no valid contract formed between Flashpark and the driver


    Flaskpark have not placed any signage at either side of the car park entrance, therefore you have not given the !!!8220;adequate notice!!!8221; as required by Schedule 4 of the POFA


    Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual 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. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by Flashpark in respect of the alleged event.

    There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms.

    In addition to the absence of signage at the entrance to the car park and the signs nearest to the location my vehicle was parked were not prominent, clear or legible and there is insufficient notice of the sum of the parking charge itself.

    There was no contract or 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.

    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.

    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.




    Additionally, Section 2.7 of the BPA Code of Practice states that !!!8220;All AOS members must make sure that the AOS logo is prominently displayed in all their car parks, and make it clear to the public that they are governed by the Code.!!!8221;



    7. Case can be distinguished from ParkingEye v Beavis

    In its parking charge notice, Flashpark has failed to provide sufficient evidence to justify the £85 loss the landowner might have incurred for the alleged contravention.




    The contract entered into between the driver and Flashpark is a simple consumer contract.

    This makes plain that the sum of £85 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.

    As this is a simple contract, any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.

    Flashpark's £85 PCN is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable. If Flashpark believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

    I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places.

    Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.



    What the Appeal Court said in ParkingEye v Beavis. This was not contradicted by the Supreme Court so this stands as part of that binding decision and sets pay and display car parks (simple contracts, defined by the sum of the tariff) as 'entirely different':

    At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC!!!8217;s findings, and opined at paragraph 27 thathe application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.


    In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, [...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,..

    The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

    Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest the operator has in enforcing their (out of all proportion to the tariff) charge is profit alone.

    This position is reinforced in the earlier findings in the Beavis case from the Court of Appeal, where the judgment states:

    "44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

    45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

    47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

    The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148: But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.;

    The Consumer Rights Act 2015 shows this case law still holds because it includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed. This is the fundamental legislation relating to standard contracts between traders and consumers and it is undoubtedly applicable to this case.

    The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before. The Beavis decision is not a silver bullet and is incapable of striking out appeals and superseding trite law relating to other parking charges with different facts and, in particular, a monetary tariff.

    Any reliance on the Supreme Court judgment in the case of ParkingEye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.



    8) The operator has not allowed for the BPA's mandatory Grace Periods

    In the BPA Code of Practice:

    13 Grace periods
    13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable !!!8216;grace period!!!8217; in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

    The driver left the site within the 10 minute grace period however the parking fine was issued within that time.




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