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ParkingEye PCN - no POFA
toontoonizer
post Mon, 18 Dec 2017 - 20:54
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Hi All,

My friend received a pcn notice as registered keeper from parkingeye for allegedly parking at the royal free hospital in hampstead and not paying.

Date of event: 29/11/2017
Date Issued: 13/12/2017

I have been reading around how to approach this one and one of the things which caught my eye was the fact that if there is no POFA wording there is a grounds for appeal. I have read and re read the parking notice multiple times and can find no mention of POFA on the front or back.

I just wanted to ask if this is indeed a way forward and if there is any specific wording to use in the appeal.

Thank you all for your help in advance!

This post has been edited by toontoonizer: Mon, 18 Dec 2017 - 20:55
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post Mon, 18 Dec 2017 - 20:54
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Macapaca
post Tue, 30 Jan 2018 - 23:20
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QUOTE (toontoonizer @ Tue, 30 Jan 2018 - 09:04) *
ok so i went to submit the appeal to POPLA - but there is a 2000 character limit for providing appeals. Obviously the appeal text above is larger than 2000 characters - have they changed the process or did i miss something? Do i attach the appeal as evidence?

EDIT: did some searching, am going to attach full appeal text as PDF and leave comment to refer to that

You can email your appeal instead of being restricted to the number of characters online. I phoned POPLA and they were absolutely fine with me emailing a document.
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toontoonizer
post Fri, 9 Feb 2018 - 10:11
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So got a reply from POPLA with their comments on my case. All the usual stuff including pictures of signs but a few things stood out to me.

Firstly, in response to my point around the notice not being compliant with POFA as it could not be considered delivered within the time period specified in POFA they replied this:
"Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012. As such, the appellant’s comments regarding the Parking Charge Notice being issued incorrectly are not relevant in the case."

Is there any truth to this statement? From my understanding the notice was issued to the keeper of the vehicle (and the appellant is appealing as the keeper not the driver - the driver has not been named) and the provisions in POFA are specifically regarding any Notice to Keeper type penalties therefore it is relevant in this case? Furthermore, as POPLA was created out of POFA surely its jurisdiction is those notices that have been issued under POFA. What else can a notice be issued under?

Link here to this and their other responses: https://1drv.ms/b/s!AsRiF1eWiROUjmWZ7Lrw_u9fqOC4

Furthermore they provided a witness statement in response to my point: 3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing. In this point the requested proof to be provided is as follows: "Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

The key text is in bold because it is not a genuine copy and the witness statement is dated 6th February 2018 - which does not pre-date the parking event.

Link here: https://1drv.ms/b/s!AsRiF1eWiROUjmbHIr7vqJhUopo5

I will have a look around for responses but i think my responses to their points should be the following:
1) As the appellant is appealing as keeper and the Operators original notice seeks to obtain payment from the keeper of the vehicle rather than the driver, the provisions of the Protection of Freedoms Act 2012 is relevant in this case. According to POFA 2012, a notice issued to the keeper of the vehicle must abide by the provisions set out in Schedule 4 of the Protection of Freedoms Act. Therefore, the Operator has failed to address point 1 (and all sub points) of my appeal stating that as the registered keeper i have no liability for the charge.
2) The Operator has provided a witness statement as evidence of its proprietary interest in the land which is dated after the event. This cannot be constituted as a genuine copy of the actual side agreement/contract with the landowner/occupier and the Operator has failed to demonstrate that it has a proprietary interest in the land and can therefore offer contract or bring a claim for trespassing.

Thoughts? especially on the point that the charge was not issued under POFA?

This post has been edited by toontoonizer: Fri, 9 Feb 2018 - 10:17
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Macapaca
post Fri, 9 Feb 2018 - 10:51
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You haven't made it clear but I assume that you lost the POPLA appeal?
If the PPC wants to hold you liable as keeper then they have to use POFA. It is the law! Without it they can only chase the driver and hopefully you have not stated anywhere who was the driver.
The land owner contract needs to be in validity to be of any use. If they take it to court then they would have to have one in validity. The same happened to my POPLA appeal and it was also ignored by POPLA. However I have written to the PPC stating why I disagree with the POPLA appeal and that if they wish to persue it then I will see them in court. I have not heard anything further despite their threats of Debt Recovery!
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nosferatu1001
post Fri, 9 Feb 2018 - 10:55
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POFA - there is NOTHING requiring them to use POFA. Theyc an dchoose not to. BUT they forfeit the right to claim from the Keeper. POPLA was not created out of POFA. It was created after POFA. POPLA has no requirement to only look at POFA compliance NtK

What theyre doing with that comment is HOPING that POPLA will think "OK", and decide to not look at whether the APPELLANT is liable. So, you must STRESS in your rebuttal to POPLA, that this means the Operator accepts that you, the keeper, cannot have liability and the appeal must succeed on this point alone.

Witness statement - sadly, POPLA accepts WS. Yes, its crap. However have you cehcked that the WS was signed by an actual person at the landowener? Or is it PE signing a document themselves?
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toontoonizer
post Fri, 9 Feb 2018 - 11:01
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QUOTE (Macapaca @ Fri, 9 Feb 2018 - 10:51) *
You haven't made it clear but I assume that you lost the POPLA appeal?
If the PPC wants to hold you liable as keeper then they have to use POFA. It is the law! Without it they can only chase the driver and hopefully you have not stated anywhere who was the driver.
The land owner contract needs to be in validity to be of any use. If they take it to court then they would have to have one in validity. The same happened to my POPLA appeal and it was also ignored by POPLA. However I have written to the PPC stating why I disagree with the POPLA appeal and that if they wish to persue it then I will see them in court. I have not heard anything further despite their threats of Debt Recovery!


No I haven't lost the POPLA appeal (or won it) i have received a response from the Operator (parking eye) against my POPLA appeal points. I now have 7 days to reply after which i imagine the POPLA assessor will assess the case - thanks for your input! will keep that in mind but hopefully it won't get to that stage.

QUOTE (nosferatu1001 @ Fri, 9 Feb 2018 - 10:55) *
POFA - there is NOTHING requiring them to use POFA. Theyc an dchoose not to. BUT they forfeit the right to claim from the Keeper. POPLA was not created out of POFA. It was created after POFA. POPLA has no requirement to only look at POFA compliance NtK

What theyre doing with that comment is HOPING that POPLA will think "OK", and decide to not look at whether the APPELLANT is liable. So, you must STRESS in your rebuttal to POPLA, that this means the Operator accepts that you, the keeper, cannot have liability and the appeal must succeed on this point alone.

Witness statement - sadly, POPLA accepts WS. Yes, its crap. However have you cehcked that the WS was signed by an actual person at the landowener? Or is it PE signing a document themselves?


Ok, got it - it was made made clear in both the initial appeal to PE and in the POPLA appeal that the appellant is the Keeper of the vehicle not the driver - so i can't understand why they have overlooked this point twice, and continued to pursue the keeper. But i will definitely make this point clearly.

The WS is signed by a peter williams who is a security manager so i assume its an actual person
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nosferatu1001
post Fri, 9 Feb 2018 - 11:23
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They havent "overlooked this point".
You think they are an honest company. THEY ARE NOt. Theyre trying to DECEIVE POPLA into thinking a keeper appellant is liable even when they freely admit there is no POFA complioance. They are SCUM.

Why would you assume? Are they an officer of the company? Do they hold a high enough position thatthey would have signed the original contract, and therefore be in a position to know EVERY Term?
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toontoonizer
post Fri, 9 Feb 2018 - 11:29
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QUOTE (nosferatu1001 @ Fri, 9 Feb 2018 - 11:23) *
They havent "overlooked this point".
You think they are an honest company. THEY ARE NOt. Theyre trying to DECEIVE POPLA into thinking a keeper appellant is liable even when they freely admit there is no POFA complioance. They are SCUM.

Why would you assume? Are they an officer of the company? Do they hold a high enough position thatthey would have signed the original contract, and therefore be in a position to know EVERY Term?


That's fair - too much misplaced faith. I can't believe that they can even do this to be honest.

You're correct - why would i assume - I have no idea who they area and whether they have the authority or are appropriately informed to make such a statement. In my rebuttal i should ask to see this kind of evidence?
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Macapaca
post Fri, 9 Feb 2018 - 11:58
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At this stage you can only comment on the operators evidence. You can't introduce new evidence. Don't worry about that as it is just the way the process works. Your best chance is the POFA NtK argument in my view. Provided you made this part of your evidence then that should be a really strong argument that POPLA should findo difficult not to agree with. However I wouldn't be surprised if they ignored it.

I agree with the comments about not assuming that the PPCs are rational and honest. THEY ARE NOT!!
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toontoonizer
post Fri, 9 Feb 2018 - 12:58
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Apologies if this is a silly question - it looks like there are only 2000 characters on the POPLA web portal to provide comments on the operators evidence. Can these be provided via e-mail also? i've dropped an email to POPLA to ask
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Redivi
post Fri, 9 Feb 2018 - 13:25
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You can but, from experience, POPLA ignores rebuttals however they're provided, especially when ParkingEye is involved

They ignored one of mine that pointed out that ParkingEye had sent photographs of the wrong car park, including the name on the entrance sign

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nosferatu1001
post Fri, 9 Feb 2018 - 13:41
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Yes, email them

If they have then obviously ignored your comments, you complain to the lead assessor and point out that theyve broken their own process, AGAIN.
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Macapaca
post Fri, 9 Feb 2018 - 13:53
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They told me to email them INSTEAD of using the online portal. If you do both the email could be ignored!
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toontoonizer
post Mon, 5 Mar 2018 - 10:07
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UPDATE: POPLA appeal was successful!

POPLA Response:

Decision: Successful
Assessor Name: Alexandra Wilcock
Assessor summary of operator case:
The operator has issued a Parking Charge Notice (PCN) to the appellant. The reasoning stated on the PCN is “By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”.

Assessor summary of your case:
The appellant states as the registered keeper she does not have any liability for the charge. She says the notice to keeper does not comply with the requirements set out in the Protection of Freedoms Act (PoFA) 2012. The appellant advised that the operator failed to comply with the British Parking Association (BPA) Code of Practice, in relation to grace periods. She states that the operator has lack of proprietary interest in the land, and does not have the capacity to offer contracts or to bring a claim for trespass. The appellant says that the signage on site does not comply with the BPA Code of Practice. She advised that the signage is not clear, or prominent from all parking spaces. The appellant has provided POPLA with images of her refusal letter.

Assessor supporting rational for decision:
I note that the operator has not referenced that they are attempting to transfer the liability for the PCN from the unknown driver to the registered keeper of the vehicle using PoFA 2012, and so in its 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 of the vehicle is, based on the evidence that I have received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver of the vehicle. 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. I note that the appellant has raised further grounds for appeal however, as I have allowed the appeal I will not be taking these into account.

This post has been edited by toontoonizer: Mon, 5 Mar 2018 - 19:44
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Higs
post Mon, 5 Mar 2018 - 11:37
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QUOTE (toontoonizer @ Mon, 5 Mar 2018 - 10:07) *
UPDATE: POPLA appeal was successful!

Will post POPLA response later as don't have access to it right now.

Congratulations (not that it was ever in doubt)

Can I ask you to also post (or message me) your response to PE's 'evidence'?
I have just started the POPLA phase with a PE 'golden ticket' which includes both points that:
1) they cannot pursue me as keeper as the NTK was not POFA-compliant
2) they have no proprietary interest in the land
Assuming they give the same response to mine as they have to yours it would be helpful to base my response on your successful one.

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toontoonizer
post Mon, 5 Mar 2018 - 19:47
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QUOTE (Higs @ Mon, 5 Mar 2018 - 11:37) *
QUOTE (toontoonizer @ Mon, 5 Mar 2018 - 10:07) *
UPDATE: POPLA appeal was successful!

Will post POPLA response later as don't have access to it right now.

Congratulations (not that it was ever in doubt)

Can I ask you to also post (or message me) your response to PE's 'evidence'?
I have just started the POPLA phase with a PE 'golden ticket' which includes both points that:
1) they cannot pursue me as keeper as the NTK was not POFA-compliant
2) they have no proprietary interest in the land
Assuming they give the same response to mine as they have to yours it would be helpful to base my response on your successful one.


Thanks!

Sure - i'll add here:
"1. On page 6 of the documentation provided by the Operator, the Operator states that:
"Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012. As such, the appellant’s comments regarding the Parking Charge Notice being issued incorrectly are not relevant in the case."

As the Operator states that this charge was not issued under POFA 2012, therefore they must also concede that they forfeit any right to claim from the Keeper of the vehicle as a result. At every stage of the appeal, the appeal has been made as Keeper of the vehicle. Therefore by stating that the parking charge was not issued under POFA 2012 the Operator accepts that I, the Keeper cannot have liability in this case. Therefore, the appeal must succeed on this point alone.

For reference, please see the original appeal submitted to the Operator on 19/12/2017 (this appeal can be found on page 15 of the Operators documentation) the first line of my appeal notes that appeal is being made as Keeper. In my appeal to POPLA, the first point of my appeal states that as Keeper, I have no liability for this charge.

2. The Operator provides a witness statement in response to the request to evidence proprietary interest in the land. The Witness Statement is dated after the parking event in question and is signed by an individual with the title "Security Manager". It is not possible to determine from the Witness Statement, or any other evidence provided by the Operator, what kind of relationship the Witness has to the the Land Owner, and whether they do in fact, have the appropriate authority and knowledge to act in the capacity required by the Witness Statement.

3. The photographs of the signage provided by the Operator show, quite clearly, that the text containing the terms of the contract are illegible at the sizes they are printed. The photo showing a sign with the contract terms by the payment machine on page 35 demonstrates how small the wording actually is regarding the contract terms. It can be argued that given perfect eye sight and adequate time the terms may be readable by someone standing close enough - otherwise this text is illegible in a car moving at 5mph.

Please take into consideration the above comments."

I don't know if this was taken in to consideration or the assessor stopped at the POFA point.

Hope it helps!
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