Hi

I'm sorry if this has been asked before - I've spent the last 2 hours on this website and I'm still unsure of what I should do.

The driver of a vehicle registered with me parked in a carpark monitored by cameras. No parking ticket was purchased - apparently it was dark, signs were not obvious and the driver thought parking charges didn't apply at night. I received a Parking Charge Notice from Civil Enforcement LTD. I am aware of several people who have received similar charges and had their appeal rejected by POPLA. Today is the last day I can pay and receive the reduced amount - should I just pay or should i appeal?

However, I have just visited the POPLA website and they say: "The Byelaws 14 (4) are specific that the owner of a vehicle “may be liable for a penalty as displayed
in that area”. Therefore, if pursuing for breach of Byelaws, the parking operator can only pursue the
owner of the vehicle. The owner may or may not be the person who was driving at the time. Another person driving the
vehicle does not affect the owner’s liability for a penalty.

Why are you quoting Railway Byelaws for a Civil Enforcement Parking Notice ?

My notice from Civil Enforcement says it is a "Penalty Charge Notice"

No it doesn't
It says that it's a Parking Charge Notice

This means that it hasn't been issued under any Byelaws

BUT the very existence of Byelaws means that CEL has no right to recover a PARKING Charge Notice from anyone except the driver

You appeal to POPLA on every ground that applies

I have had a go at writing the Popla appeal - could anyone tell me if this seems ok given the circumstances of this case?

POPLA Appeal Code xxxxxxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxx
Issued by Civil Enforcement

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued against it. I was neither the driver nor an occupant at the time the alleged contravention took place. I would like to have the parking charge notice cancelled based on the following grounds:

1. I was not the driver of the vehicle at this time.
2. Failure to fulfil Popla’s expectations for a Penalty Notice for breach of byelaws
3.. No landowner authority


I was not the driver of the vehicle

Customs House Quay is subject to Falmouth Harbour Byelaws.
POFA 2012 Schedule 4 excludes the possibility of there ever being Keeper liability on land subject to byelaws. Civil Enforcement must pursue the driver for this notice.

2. Failure to fulfil Popla’s expectations for a Penalty Notice for breach of bylaws

Customs House Quay is subject to Falmouth Harbour Byelaws. 
The document : “POPLA update on tickets issued for alleged breach of Byelaws” states 

“We set out the following expectations for a Penalty Notice for breach of Byelaws on Railway
Land: (…)

A Penalty Notice should: Say it is a Penalty Notice (this can be abbreviated to PN providing the phrase Penalty Notice is used first)

A penalty notice should not: (…) “Say the words “parking charge”, “parking charge notice”, or “PCN” (as this is not relevant and
will confuse the owner about the situation in which they find themselves)”

The notice issued to me by Civil Enforcement says the words “Parking Charge Notice (PCN) at the top and does not mention “Penalty Notice” anywhere on the document.

3. No Landowner Authority

I question Civil Enforcement’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Civil Enforcement to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Civil Enforcement’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Civil Enforcement is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Civil Enforcement are certainly not empowered by the landowner to sue customers and visitors to this car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put Civil Enforcement to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Civil Enforcement to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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


I require Civil Enforcement to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner , not merely a ‘standard business agreement’ with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

I think all you need to say about byelaws is:

Customs House Quay is subject to the Falmouth Harbour Byelaws (copy enclosed) and is, therefore, not 'relevant land' within the definition given in PoFA 2012 sched 4.

Lose the whole of point 2 about POPLA's interpretation of Railway Byelaws. It isn't relevant here and will only give POPLA an excuse to say it's not railway therefore the notice was correctly issued! Yes, the assessors are sometimes that stupid!

So my final draft looks like this: is this ok? (I have edited this as there were some typos)



POPLA Appeal Code xxxxxxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxx
Issued by Civil Enforcement

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued against it. I was neither the driver nor an occupant at the time the alleged contravention took place. I would like to have the parking charge notice cancelled based on the following grounds:

1. Customs House Quay is subject to Falmouth Harbour Byelaws.
2. No landowner authority


1. Customs House Quay is subject to Falmouth Harbour Byelaws.

Customs House Quay is subject to the Falmouth Harbour Byelaws (copy enclosed) and is, therefore, not 'relevant land' within the definition given in PoFA 2012 schedule 4.

2. No Landowner Authority

I question Civil Enforcement’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Civil Enforcement to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Civil Enforcement’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Civil Enforcement is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Civil Enforcement are certainly not empowered by the landowner to sue customers and visitors to this car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put Civil Enforcement to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Civil Enforcement to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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


I require Civil Enforcement to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner , not merely a ‘standard business agreement’ with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

This post has been edited by timbuktumaster: Fri, 15 Feb 2019 - 08:21

Hi


Penalties
65. (1) Any person who contravenes or otherwise fails to comply with any of
these bye-laws or any condition, requirement or prohibition imposed by the
Harbour Master in the exercise if the powers conferred upon him by these
bye-laws shall be guilty of an offence and be liable on summary conviction to
a fine -
(a) In respect of an offence under bye-laws 42, 45, 54 and 63A above
not exceeding level 2 on the standard scale.

From bye-laws . 42 is parking


In case it's been overlooked

ATB



This post has been edited by chapinahat: Fri, 15 Feb 2019 - 08:20

Does this mean that my appeal is not relevent?

Hi

Dash to work

The bye law mentions using car parks that arguably could put them outside of it's powers and so POFA relevant land.

ATB

Forget what chapinthehat is saying, he is generally winding up the community on here. Don't know what his agenda is.

You have not been issued a penalty, you have been invoiced by CEL. It is not relevant land so your POPLA appeal as the keeper should succeed. It especially not relevant land as the byelaws include parking. The CEL NTK does not appear to conform to the requirements of POFA so mention these failures in your POPLA appeal.

IT is not relevant land for the purpose of POFA .........etc

And even if it was relevant land there are failures to comply with POFA that makes them unable to hold the keeper liable. Then list the fails.

This post has been edited by ostell: Fri, 15 Feb 2019 - 09:23

You need to list exactly where in POFA "byelaws" means this is not relevant land
It is your strongest point

ok thanks

Thanks so much for help. I've added in the relevant part of POFA regarding byelaws and I've added a point about how the NTK does not conform to POFA requirements.

Is this OK?


POPLA Appeal Code xxxxxxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxx
Issued by Civil Enforcement

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued against it. I was neither the driver nor an occupant at the time the alleged contravention took place. I would like to have the parking charge notice cancelled based on the following grounds:

Customs House Quay is subject to Falmouth Harbour Byelaws.
The Notice to Keeper does not conform to POFA requirements
3. No landowner authority


Customs House Quay is subject to Falmouth Harbour Byelaws.

Customs House Quay is subject to the Falmouth Harbour Byelaws (copy enclosed) and is, therefore, not 'relevant land' within the definition given in PoFA 2012 schedule 4.

Paragraph 3 or Schedule 4 states

3 (1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
©any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.
(…)
(3)For the purposes of sub-paragraph (1)© the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

(4)In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in—
(…)
(b)any subordinate legislation, whenever made,and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.


2. The Notice to Keeper does not conform to POFA requirements

POFA schedule 4 paragraph 9 states:

“9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (…)

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
©describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;”

The Parking Charge Notice which I (the registered owner) received via post from Civil Enforcement does not contain any references to the driver whatsoever.

3. No Landowner Authority

I question Civil Enforcement’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Civil Enforcement to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Civil Enforcement’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Civil Enforcement is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Civil Enforcement are certainly not empowered by the landowner to sue customers and visitors to this car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put Civil Enforcement to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Civil Enforcement to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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


I require Civil Enforcement to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner , not merely a ‘standard business agreement’ with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

This post has been edited by timbuktumaster: Fri, 15 Feb 2019 - 09:48

...and the bit that shows that only "relevant land" gives rise to Keeper liability?

Spell it out as "Schedule 4 of the Protection of Freedoms Act 2012 (POFA)" the first time and then use POFA after that.

I think I've done it now...REALLY appreciate everyone's help, is this good to go now?


POPLA Appeal Code xxxxxxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxx
Issued by Civil Enforcement

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued against it. I was neither the driver nor an occupant at the time the alleged contravention took place. I would like to have the parking charge notice cancelled based on the following grounds:

1.Customs House Quay is subject to Falmouth Harbour Byelaws.
2.The Notice to Keeper does not conform to POFA requirements
3. No landowner authority


1.Customs House Quay is subject to Falmouth Harbour Byelaws.

Schedule 4 of the Protection of Freedoms Act 2012 (POFA) states:

“1(1)This Schedule applies where—
(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; “

Customs House Quay is subject to the Falmouth Harbour Byelaws (copy enclosed) and is, therefore, not 'relevant land' within the definition given in Schedule 4 of the Protection of Freedoms Act 2012 (POFA) Schedule 4.

Paragraph 3 or Schedule 4 states

3 (1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
©any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.
(…)
(3)For the purposes of sub-paragraph (1)© the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

(4)In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in—
(…)
(b)any subordinate legislation, whenever made,and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.

Therefore Civil Enforcement are not permitted to pursue the keeper for the PCN, they must pursue the driver.

2. The Notice to Keeper does not conform to POFA requirements

POFA schedule 4 paragraph 9 states:

“9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (…)

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
©describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;”

The Parking Charge Notice which I (the registered owner) received via post from Civil Enforcement does not contain any references to the driver whatsoever.

3. No Landowner Authority

I question Civil Enforcement’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Civil Enforcement to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Civil Enforcement’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Civil Enforcement is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Civil Enforcement are certainly not empowered by the landowner to sue customers and visitors to this car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put Civil Enforcement to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Civil Enforcement to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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


I require Civil Enforcement to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner , not merely a ‘standard business agreement’ with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

This post has been edited by timbuktumaster: Fri, 15 Feb 2019 - 10:43

I don't think you need to include the full text of POFA Para 3, just use its number and title

Make clear that the Harbour Byelaws include the parking of vehicles and, as the location is not "relevant land" in accordance with POFA, you have no liability for the parking notice

2. Even if the location was relevant land, the Notice to Keeper does not conform to POFA requirements…

If you want to be a real nuisance to CEL, complain to the DVLA that it's sending POFA notices for a location that isn't relevant land

The question is whether to wait in case the DVLA disagrees with you and demolishes your main argument

Great thanks, so am i good now?


POPLA Appeal Code xxxxxxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxx
Issued by Civil Enforcement

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued against it. I was neither the driver nor an occupant at the time the alleged contravention took place. I would like to have the parking charge notice cancelled based on the following grounds:

Customs House Quay is subject to Falmouth Harbour Byelaws.
The Notice to Keeper does not conform to POFA requirements
3. No landowner authority


Customs House Quay is subject to Falmouth Harbour Byelaws.

Schedule 4 of the Protection of Freedoms Act 2012 (POFA) states:

“1(1)This Schedule applies where—
(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; “

Customs House Quay is subject to the Falmouth Harbour Byelaws and is, therefore, not 'relevant land' within the definition given in Paragraph 3 of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

Falmouth Harbour Bylaws cover the parking of vehicles. As the location is not “relevant land” in accordance with POFA, I, the keeper has no liability for the parking notice.

Therefore Civil Enforcement are not permitted to pursue me, the keeper for the PCN, they must pursue the driver.

2. Even if the location was relevant land, the Notice to Keeper does not conform to POFA requirements

POFA schedule 4 paragraph 9 states:

“9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (…)

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
©describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;”

The Parking Charge Notice which I (the registered owner) received via post from Civil Enforcement does not contain any references to the driver whatsoever.

3. No Landowner Authority

I question Civil Enforcement’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Civil Enforcement to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Civil Enforcement’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Civil Enforcement is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Civil Enforcement are certainly not empowered by the landowner to sue customers and visitors to this car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put Civil Enforcement to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Civil Enforcement to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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


I require Civil Enforcement to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner , not merely a ‘standard business agreement’ with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

_____________
Customs House Quay is subject to Falmouth Harbour Byelaws.
The Notice to Keeper does not conform to Schedule 4 of the Protection of Freedoms Act 2012 (POFA) requirements
3. No landowner authority
______

Customs House Quay is subject to the Falmouth Harbour Byelaws and is, therefore, not 'relevant land' within the definition given in Paragraph 3 of POFA

________

2. Even if the location was relevant land, the Notice to Keeper does not conform to POFA requirements

POFA paragraph 9 states:

I submitted my Popla Appeal as detailed above (grounds are byelaws, no keeper liability)

Civil Enforcement have submitted theirs operator evidence which is Beavis Supreme Court Judgment (Summary)(1) - that's all they have submitted. I can't find anything in the document that has any relevance to my case, am I missing something? . I have 2 days to provide comments on the operator evidence - should I write anything there?

Read up on Beavis and see if it applies to this case. Essentially, Beavis revolved around a free car park on a retail park where there was a commercial interest in ensuring a steady turnover of spaces. Barry Beavis admitted to being the driver and therefore the contract could be enforced against him. The signs were particularly prominent with the key terms, specifically the charge for overstaying. Compare with your case.

Could you post their evidence, suitably redacted.

Hopefully, you will get a range of comments within your deadline.

Anything they fail to rebut they are deemed to have accepted
So you point out to popla the operator accepts that this is not relevant land, that they do not have authority, etc
Point out that Bravia doesn't apply as this is not commercial but byelaws land.