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Lease company sending notice 60 days later, excuse 'fixed to windscreen'
blad4
post Sat, 27 Oct 2018 - 17:55
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Hi not sure if I am going about this right, but surely we have the right to wait for something to come in the post before we need to appeal? Because what if someone else was driving my car, or the ticket attached to the windscreen just was not there when the driver returned to the car?

So when I did receive the notice via email (not yet via post), I saw that the fine was actually issued 60 days earlier. I emailed back saying

Hi, in relation to the two emails I received on the 13th of this month, each outlining a parking fine, one of them is dated 60 days ago, and I have not received the notice in the post as of yet. After contacting the parking company, I can confirm I have missed the appeal deadline due to receiving it so late. I have looked into the laws and would not like to go any further if you are happy to accept that somewhere between yourselves and TNC Parking services the mistake was made. Below are the specifics of the email:

With the date and time being

17/08/2018 00:00

They responded with

The fine was originally fixed to the windscreen of the vehicle which would have allowed for this fine to be appealed. Please see a screen shot below of the section of the Parking Charge Notice that advises this:

TNC Parking services have obtained your... issued a parking charge notice which was fixed to the vehicle.. remains outstanding

Arval has written to the parking company and asked them to transfer liability of the fine to your address. It depends on the authority on how quickly they reissue the fine. Once you have received the fine in the post you can either pay or dispute it directly with the parking company.


Now there is no way they are getting my money, even the admin charge will get refunded. I'm just more curious as to the laws a process around this, whether I am incorrect etc
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post Sat, 27 Oct 2018 - 17:55
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blad4
post Wed, 5 Dec 2018 - 12:09
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QUOTE (nosferatu1001 @ Tue, 4 Dec 2018 - 15:05) *
Meeting POFA or otherwise has NOTHING to do with whether or not they can charge you for passing your details along.

That charge is purely contractual, between you and your leasing company

You cannot force them to admit anything. What you CAN do is make it uncomfrtable
So you make a WRITTEN COMPLAINT about the admin fee because it is being charged without any allowance in the terms and conditions of your contract with them.

You then require them to refund you the money with 14 days
Failure to do so will result in a chargeback request being made to your bank
Shoudl they disagree with your assessment, tehy msut fully explain how a private invoice meet the defintion under... (give the actual definition they use here)


Thank you very much for this. The further caveat they have which I forgot to mention, was if the parking operator words their cancellation of the charge as 'goodwill', then the leasing company still blame my driver error for their admin work which caused the charge, and then do not want to refund it. But I suppose I can still go through the same route etc of threatening a chargeback, as it is still nowhere in the t and cs.

Additionally, the only charges I really have to fight are in my own estate, where I have the right to park as the sole tenant within the lease. It is for this reason I'd protest even displaying a permit, if it wasn't for needing to go through this saga with my lease company again and again.

Here is their response, so not a surprise and now I have my POFA code.

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nosferatu1001
post Wed, 5 Dec 2018 - 15:30
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TELL your MA to remove your demised land from the scheme
THey had no right to start using this operator on your land (assuming this IS demised to you) and certainly, now you have withdrawn any form of possible permission they can think they had, implied or otherwise, they certainly cannot continue

They must instruct their current agent that your land is not to be trespassed upon, nor your goods parked there, otherwise they, aliong with the MA, will be liable for damages and an injunction

WIth regards lease co - nope, thats no wrinkle

Theyre either authorised to charge you, or they arent.
Thats it.
If theyre not, then you tell them in a complaint, state you require a refund within 14 days, or you iwll issue a chargeback.
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blad4
post Mon, 10 Dec 2018 - 19:14
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QUOTE (nosferatu1001 @ Wed, 5 Dec 2018 - 15:30) *
TELL your MA to remove your demised land from the scheme
THey had no right to start using this operator on your land (assuming this IS demised to you) and certainly, now you have withdrawn any form of possible permission they can think they had, implied or otherwise, they certainly cannot continue

They must instruct their current agent that your land is not to be trespassed upon, nor your goods parked there, otherwise they, aliong with the MA, will be liable for damages and an injunction

WIth regards lease co - nope, thats no wrinkle

Theyre either authorised to charge you, or they arent.
Thats it.
If theyre not, then you tell them in a complaint, state you require a refund within 14 days, or you iwll issue a chargeback.


Awesome I will be doing that as soon as the charge comes to me. But bear in mind, this 'right to park' operates on a first come first serve basis for the parking bays. I.e. in theory we would have to scatter all around the development. Would this constitute as not being demised to me and alter the rights they have to use the MA on what they regard as their land?

I got some more letters highlighting more of their inconsistencies, attached below. May I ask if I should send the same letter in my POPLA appeal as the one I used for the operator?

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SchoolRunMum
post Mon, 10 Dec 2018 - 19:21
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No, a POPLA appeal is longer & more detailed - and you can use the templates from the 3rd post of the NEWBIES thread on MSE forum.

Land that is first come first served shared parking, is not demised/owned by you. And none of that goes into a POPLA appeal anyway as POPLA Assessors aren't trained in land ownership law (or any law...).

Here's one where it's just worked:

http://forums.pepipoo.com/index.php?showtopic=124061

A lot simpler than you think.

Show us your draft based on that sort of POPLA appeal.
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blad4
post Tue, 11 Dec 2018 - 11:41
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QUOTE (SchoolRunMum @ Mon, 10 Dec 2018 - 19:21) *
No, a POPLA appeal is longer & more detailed - and you can use the templates from the 3rd post of the NEWBIES thread on MSE forum.

Land that is first come first served shared parking, is not demised/owned by you. And none of that goes into a POPLA appeal anyway as POPLA Assessors aren't trained in land ownership law (or any law...).

Here's one where it's just worked:

http://forums.pepipoo.com/index.php?showtopic=124061

A lot simpler than you think.

Show us your draft based on that sort of POPLA appeal.


Thanks so much. Not so much of a draft as a blatant rip-off. I'm hesitant to add anything too personal i.e. the fact that I'm a resident as that is tantamount to declaring I may have been the driver. I also know that 1 of the 3 points would be enough to win this appeal.. underground residents-only car park with fob entry.. signage or no signage, NOTHING was ever contracted by either party so how on earth can they use contract law as their justification. So I kept the three relevant points and removed the one about signage.. shall I replace it with hints that the MA is acting irresponsibly by allowing the operator to issue fines with extreme ambiguity? I.e. section 3 of Paragraph 7 of the BPA CoP.. none of these are presented when a resident moves in?




POPLA Verification Code: XXXX
Parking Charge Notice Number: XXXX
Vehicle Registration: XXXX
Operator: XXXX

I am the registered keeper of this vehicle and am appealing a PCN which was issued for no valid parking permit on visible display on [date]. An appeal to the operator was submitted and acknowledged on [date] but subsequently rejected by a letter dated [date]. Therefore, I am now elevating this appeal to POPLA on the following grounds:

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

The NTK must have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

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

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

I consider any one of the above reasons as sufficient for you to uphold my appeal. I look forward to your positive response.
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nosferatu1001
post Tue, 11 Dec 2018 - 12:29
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POPLA only really consider if the charge should have been raised, not whether it is legally owed
A resident with a pre-existing right to park has no need to ever enter a contract ith a parking company, but POPLA is unlikely to think that or even consider it.
Youre dealing with poorly trained minimum wage staff.
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blad4
post Thu, 10 Jan 2019 - 12:09
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Email received this morning containing:

P4 Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team


Thank you everyone
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