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Posted by: ohnoes Tue, 14 May 2019 - 20:19
Post #1485133

Situation:
A paper ticket was attached to the vehicle by a TPS warden.

The vehicle was parked on a Reading Uni campus car park and there was a TPS sign nearby the vehicle. Will get a photo of one of these signs and attach it soon.

The driver of this vehicle is also a blue badge holder however it wasn't on display at the time of ticketing.

The vehicle was displaying a TPS 'halls of residence' permit, however the permit is made out in the registration number of a previous vehicle.

The permit was was photographed by the warden (with the old VRM on it) alongside pictures of the car and the sign behind it, although it is unreadable from the photos.

There is also a copy of an email communication where university has been contacted about the permit when vehicles were changed. The university replied stating the same permit displaying the old VRM could be used.

There is the added confusion of where a 'halls of residence' permit allows the driver to park on campus, which isn't entirely clear based on the information on the reading uni website.


PCN front and back:
https://imgur.com/a/HUtCy1O

Not sure if it has any bearing on this case, but found this on the university website, their parking t&cs: https://www.reading.ac.uk/web/files/parking/Parking_regs_update_ver1.2__Approved_CA_EFC_190618.pdf

No communications have been entered into with TPS yet, pending comments from the knowledgable folk here.
Can you suggest the best course of action based on the information given so far?

Posted by: ohnoes Wed, 15 May 2019 - 09:47
Post #1485225

I've got a picture of a sign in the car park: https://imgur.com/a/UCIjtac

Sign makes no mention of the distinction between a 'halls' permit or any other type of permit.
Combined with the email from the university confirming old permit can be used with new car, I'd say the driver has a pretty good chance of fighting this off.
Can someone suggest next steps please?

Posted by: ostell Wed, 15 May 2019 - 10:05
Post #1485231

So a letter of appeal FROM THE KEEPER so that it arrives on day 26. The appeal will, of course, be that the principal of the site has confirmed by letter that the permit with a previous VRM is valid and therefore there can be no breach and therefore no charge. Including, of course, a copy of that letter.

When you write use an address slightly different from that appearing on the V5, but still valid and deliverable. This will identify if they have contacted the DVLA. To claim against the keeper they have to deliver a Notice to Keeper between days 28 & 56 AND also contact the DVLA to get the keepers details. Failure to do either means that they can only claim from the unknown driver. Check that the letter about the permit doesn't compromise the situation.

Posted by: ohnoes Wed, 15 May 2019 - 10:21
Post #1485235

Hello Ostell, Thank you for your reply.

Just to clarify if my understanding is correct.
Date of ticket = Monday 13/05/2019
26 days later = Saturday 08/06/2019
Therefore, a paper appeal will be sent with proof of posting (first class) on Friday 07/06/2019 by the keeper to TPS. Is this correct?

Draft for the paper appeal, anything you would add here?

Dear Sir/Madam,

This appeal to you is being made by the registered keeper of the vehicle XXX which was issued a charge ref XXX.
I am not obligated to disclose the details of the driver, nor will I be doing so.

As per your photos, the vehicle was displaying a permit in the windscreen. The permit was made out to a different VRM than the one displayed by the vehicle.
Please also find enclosed a copy of email communication between the registered keeper and the site owner confirming that displaying a permit with a previous VRM is valid, and therefore there can be no breach and therefore no charge is payable in this case.

Yours Faithfully,

Registered Keeper

Regarding the email between site owner, I have read it and the content is along the lines of the below. There is no mention of who was driving the vehicle. Is it ok to include?

Dear Sir/Madam,

"I" have a halls parking permit but have changed "my" car over Christmas. Would it be possible to get an updated permit please?
"My" previous reg was XXX and the new one to be on the permit is YYY

The reply from site owner:
Dear Name,
Thank you for your email. We have updated our records - all you need is to transfer your existing permit into your new vehicle. Please do not amend the permit

Posted by: ostell Wed, 15 May 2019 - 10:45
Post #1485237

So Day 26 is a Saturday so post 2 days earlier, Wednesday, to arrive on the Friday. Yes Certificate of Posting. Assumed delivered 2 working days later.

Yes that letter looks fine, with nothing to drop the keeper in the clag.

Posted by: ohnoes Wed, 15 May 2019 - 14:05
Post #1485310

Thanks once more.

Is it ok for RK to send the appeal from a different address (and indicate reply to one different to) the one on the V5 altogether?
V5 address is their 'home' address, whereas they are understandably away from home at uni for the moment.

Posted by: ostell Wed, 15 May 2019 - 22:04
Post #1485446

Yes, of course. But warn those at home address to be on the lookout for documents and forward them quickly. Don't indicate it is a different address, they maty smell a rat.

Posted by: ohnoes Fri, 17 May 2019 - 20:10
Post #1485966

Hi ostell,

This is regarding: http://forums.pepipoo.com/index.php?showtopic=127863&st=0&p=1485310&#entry1485310

I've realised the info given was slightly incomplete and wanted to double check if this makes any difference to the appeal angle.

1. The email communication to the site owner about the permit mentioned in the thread was sent by a relative of the RK - the relative refers to the vehicle in the communication as 'their' car despite not being the RK.

2. The appeal will be sent by the RK to TPS as outlined by you in the thread- will the fact that the relative of the RK refers to the car as 'theirs' affect the appeal? Shall the email communication with the site owner still be included in its unredacted form?

Thanks!

Posted by: ostell Fri, 17 May 2019 - 21:00
Post #1485978

Nothing wrong with sending that letter, Theoretically he may be the owner, where as you are the registered keeper, two different legal entities, may cause them a bit of problem understanding though. Not to worry.

Posted by: ohnoes Mon, 3 Jun 2019 - 13:45
Post #1489597

Appeal sending date fast approaching, one final question:

Should i use first class post + proof of posting or would second class + proof of posting suffice bearing in mind the timeline and instructions above?

Posted by: ostell Mon, 3 Jun 2019 - 13:56
Post #1489600

Always First class as the letter is assumed delivered 2 business days later.

I think now is the time for the RK to ask the DVLA who has requested their details, starting with the day of the alleged breach and today. SubjectAccess.Requests@dvla.gov.uk

Posted by: ohnoes Mon, 3 Jun 2019 - 13:57
Post #1489601

Thanks.
Reminder set and everything is ready to go on Wednesday.

Posted by: ohnoes Mon, 10 Jun 2019 - 16:23
Post #1491384

The inevitable rejection arrived today (and a copy of a sign in the car park for reference): https://imgur.com/a/nhFecn6

The address used by them was the one provided on the RK appeal letter.
The signs at the location mention nothing about the difference between a 'halls of residence' permit or any other kind of permit which seems to be their basis for rejecting the appeal.

Advice on next steps appreciated.

Posted by: ostell Tue, 11 Jun 2019 - 08:40
Post #1491519

Good, working to plan so far, they haven't applied to the DVLA and they haven't yet given a Notice to keeper. What sort of time limits are on that rejection letter? Are you expected to respond with something?

The idea is to get past day 56 without them issuing a Notice to Keeper or applying to the DVLA.

Post up the redacted rejection letter so that we can all see what they have said.

I am minded to thank them for the image of the sign but then point out that the sign is not offering a parking contract to those without permits. To be sent as late as possible so that it doesn't incur any further action by them.

Here's some text I saved about forbidding signs, work this in:
The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

Remember the intention is to get to day 56

Posted by: ohnoes Tue, 11 Jun 2019 - 08:46
Post #1491522

Hi ostell,

The rejection letter is on the same link as the sign (scroll down when you open the link):

https://imgur.com/a/nhFecn6

For clarity, the picture of the sign is one taken by us in the car park. It did not come with the rejection letter. The rejection letter simply mentions that the permit is valid for halls of residence parking only.

The options given are:

1. Pay the charge within 14 days at lower rate (by 21/06/2019) or at full rate (by 05/07/2019)

2. Appeal to POPLA (by 05/07/2019)- they have given a POPLA code.

3. Do nothing and face scary letters from our 'debt recovery process'

Posted by: The Rookie Tue, 11 Jun 2019 - 09:35
Post #1491530

You'll appeal to POPLA as late as possible (so they don't have time to serve a valid NTK once they read it).

The first point of appeal will be PoFA non compliance and that you as keeper are not liable, then the other appeal points such as the signage not offering a contract to the driver (as it's forbidding) and so on.

Read up on other threads on POPLA appeals, compile your own and post for a review.

Posted by: nosferatu1001 Tue, 11 Jun 2019 - 10:30
Post #1491566

Indeed, same as every thread where you have POPLA as an option, youre appealing as late to POLA as possible - ONLINE - using hte LENGTHY, 4000 word appeals you can find> ONE element of the appela will be that they have not issued a NtK such that it is received within the period laid down in statute.

Bearing in mind you will be submitting on day 53 or 54 or so, unless they are VERY quick - same day quick - they CANNOT issue a NtK such that, 2 working days later, you would have recieved it.

Posted by: ohnoes Tue, 11 Jun 2019 - 13:22
Post #1491627

Thank you both.

I will start to draft a POPLA appeal on the assumption that an NTK will not be issued in time.
I will also mention the forbidding signage and the fact there is no differentiation made between the types of permit on the signage- a Reading University permit was displayed and they're contending it wasn't valid for the area parked in but the sign makes no mention of which permits are/are not valid.

Posted by: ohnoes Wed, 12 Jun 2019 - 13:03
Post #1491914

How is this for a first draft?

I've also added in a part about the signage being forbidding - but also the fact that there WAS a valid permit in the windscreen and their signage makes no distinction between a halls of residence permit or any other type of permit therefore there was no breach.


Dear POPLA Adjudicator,

I am the registered keeper of vehicle VRM XXX and am appealing a parking charge from TPS on the following basis:

1. A compliant Notice to Keeper was never served – therefore 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. The car park signage is inadequate and offer no contract a driver can accept
4. No breach took place

A compliant Notice to Keeper was never served – therefore no Keeper Liability can apply.

TPS 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 the notice to driver was given.
The notice to driver was given in the form of a windscreen ticket left on the vehicle on 13/05/2019, and applying the 56 day rule above a compliant notice to keeper must have been issued to arrive by 09/07/2019.
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. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

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.''


Car park signage is inadequate and offers no contract a driver can accept
The signage in the car park is of a “forbidding” nature. It is limited to “PERMIT HOLDERS ONLY” and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

No breach took place.
TPS have provided photographs of a University of Reading permit in the windscreen of the vehicle at the time of the alleged breach. I have provided TPS with email correspondence that the permit was considered to be valid by the landowner. TPS, in their rejection of my appeal to them as the registered keeper of the vehicle have stated: “Please note, the permit is valid for halls of residence parking only”. However, the signage at the location does not detail any specific requirement with regards to the type of permit displayed. The only relevant conditions on the signage related to permits is as follows:
“PERMIT HOLDERS ONLY MONDAY-FRIDAY 8am-5pm”
“Ensure you have displayed your permit clearly, face up in the windscreen or window of your vehicle allowing clear visibility for the parking attendant”
Arguably, these conditions have been complied with as evidenced by the email correspondence with the landowner and the photographic evidence taken by TPS therefore there has been no breach.

Posted by: ohnoes Mon, 17 Jun 2019 - 09:00
Post #1493011

I've received this additional letter from TPS: https://imgur.com/a/JvAa9pc

Apparently the POPLA code they mentioned in the first letter was invalid.
Does this affect when I want to submit the appeal?
The incorrect code was given on a letter dated (07/06/2019)
The 'new' code was given on a letter dated (13/06/2019)

Thanks for advice in advance.

Posted by: The Rookie Mon, 17 Jun 2019 - 09:11
Post #1493017

Check out it's closing date here https://www.parkingcowboys.co.uk/popla-code-checker/

Posted by: ohnoes Mon, 17 Jun 2019 - 10:30
Post #1493041

Old code:
Code summary
Issuing operator: 000
Date code generated: Fri Jun 07 2019
Code sequence number: xxx
Deadline information
Your appeal deadline is Fri Jul 05 2019
You have 19 day(s) remaining for your appeal to reach POPLA

New code:
Code summary
Issuing operator: Total Parking Solutions Ltd (Code: 841)
Date code generated: Thu Jun 13 2019
Code sequence number: xxx
Deadline information
Your appeal deadline is Thu Jul 11 2019
You have 25 day(s) remaining for your appeal to reach POPLA


So should I am to appeal ON the 11 July or the day before 10th July?

Posted by: Glacier2 Mon, 17 Jun 2019 - 19:36
Post #1493219

Appeal online on the 11th.

In the meantime you must keep in contact with the RK address as they may well send a NTK.

Many sneaky companies are well known to issue a NTK regardless of a POPLA code being in play.

Posted by: ohnoes Wed, 19 Jun 2019 - 15:32
Post #1493720

Hello everyone,

TPS have sent an NTK.

They have addressed it to the details I gave on my appeal, i.e. they have not used the DVLA held details.

Please let me know how this changes next steps.

Are we still onto a winner here? How does this change the POPLA appeal angle?

NTK: https://imgur.com/a/omlYJCe

Thanks!

Posted by: Glacier2 Wed, 19 Jun 2019 - 16:35
Post #1493737

You need to get the RK to immediately get onto the DVLA and get confirmation that they did not check with the DVLA for the RK details.

Posted by: ohnoes Wed, 19 Jun 2019 - 17:20
Post #1493751

Thanks for the reply.
I've searched the forum and come up with a few threads that have different methods of requesting this data- some mention FOI, others a SAR with a £5 charge. Is there an accepted/official method to use to request this data from the DVLA?

Posted by: ostell Wed, 19 Jun 2019 - 20:26
Post #1493848

There is an email address that you can use to request the details. Something along the lines of sar.request@dvla.gov...... . I can't get to my other computer to get the actual address but you get the idea. There is no charge but give them enough details so that they know it is the keeper requesting. They will respond saying 28 days but you should get a reply within a few days.

You appeal to POPLA after 56 days are up stating that the DVLA was never contacted and therefore no keeper liability and include the response from the DVLA

Posted by: ohnoes Thu, 20 Jun 2019 - 09:39
Post #1493926

Thanks, the email has gone off to DVLA.
I have asked them for any requests for my personal data between the date the NTD and NTK were issued, inclusive.

Posted by: nigelbb Thu, 20 Jun 2019 - 09:40
Post #1493927

I have sent a SAR to the DVLA on several occasions. If they have no data i.e. there has never been a request then you will get an email back stating this. If your data has been accessed then you will receive a letter within a few days with dates & details of who requested your data.

Send an email to SubjectAccess.Requests@dvla.gsi.gov.uk with something like this:-

DVLA Vehicle Record Enquiries section
Longview Road
Morriston
Swansea
SA99 1AJ

Dear Sirs

Re: VRM 123 ABC

As the Registered Keeper of the above VRM could you advise who has accessed my personal details with regards to this marque, how often and when did the DVLA send the keeper details out. Please advise the information with regards to events between 01/10/2012 to date

I understand there is no charge for this information and look forward to your speedy reply.

My name
My address

Below is a list of former addresses where I had the vehicle registered

Posted by: ohnoes Thu, 20 Jun 2019 - 13:39
Post #1494018

Thanks nigelbb, I sent something similar asking if TPS or anyone else had accessed my data and if DVLA had provided it during the relevant time period.

Will see what they come back with

Posted by: ohnoes Thu, 20 Jun 2019 - 16:01
Post #1494048

DVLA have just replied stating no requests have been made for RK information hence they've not provided anyone with them.
Looks like TPS have fallen hook, line and sinker?

Is there a suggested wording for the POPLA appeal with regards to the failure to obtain RK details from the DVLA?

Posted by: ostell Thu, 20 Jun 2019 - 19:28
Post #1494088

As well as the usual fails you say that they have failed to meet the requirements of POFA by failing to comply with the requirements of paragraph 11 of POFA and there can therefore be no keeper liability

Remember not to send before day 56 if at all possible so that they can't suddenly apply.

Posted by: ohnoes Sat, 29 Jun 2019 - 10:38
Post #1496072

Updated the draft, can you please have a look and tell me if it is any good?
I have updated the first point to be regarding the non compliance with the third condition for keeper liability and I have also modified the 'compliant NTK' section to focus on the fact that the NTK has not been served as the keepers details have never been requested from the dvla. is this correct?

Dear POPLA Adjudicator,

I am the registered keeper of vehicle VRM XXX and am appealing a parking charge from TPS on the following basis:

1. TPS have failed to comply with the requirements of paragraph 11 of the Protection of Freedoms Act, therefore no Keeper Liability can apply.
1. A compliant Notice to Keeper was not served – therefore 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. The car park signage is inadequate and offer no contract a driver can accept
4. No breach took place
5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

TPS have failed to comply with the requirements of paragraph 11 of the Protection of Freedoms Act, therefore no Keeper Liability can apply.

Paragraph 11 of Schedule 4 of the Protection of Freedoms Act sets out the third statutory condition which must be met in order for the ‘creditor’ (the parking company) to benefit from ‘keeper liability’. The relevant wording is reproduced below. I attach an email confirmation from the DVLA stating that no requests for the keepers details was made to them before or after TPS have issued a document they claim to be a 'Notice to Keeper' for the vehicle in question (dated 17/06/2019).


11 (1) The third condition is that—

(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;

(b) the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);

© the information sought by the application is provided by the Secretary of State to the applicant.

A compliant Notice to Keeper was never served – therefore no Keeper Liability can apply.

As evidenced by my first point above, TPS have not fulfilled the 'third condition' specified in paragraph 11 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. As keeper details were never requested from the DVLA, 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;

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 the notice to driver was given.
The notice to driver was given in the form of a windscreen ticket left on the vehicle on 13/05/2019, and applying the 56 day rule above a compliant notice to keeper must have been issued to arrive by 09/07/2019.
As evidenced by the attached email from the DVLA, not only have TPS chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the third 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 served. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge that does not comply with the Protection of Freedoms Act cannot be enforced against the registered keeper.

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.''


Car park signage is inadequate and offers no contract a driver can accept

The signage in the car park is of a “forbidding” nature. It is limited to “PERMIT HOLDERS ONLY” and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

No breach took place.

TPS have provided photographs of a University of Reading permit in the windscreen of the vehicle at the time of the alleged breach. I have provided TPS with email correspondence that the permit was considered to be valid by the landowner. TPS, in their rejection of my appeal to them as the registered keeper of the vehicle have stated: “Please note, the permit is valid for halls of residence parking only”. However, the signage at the location does not detail any specific requirement with regards to the type of permit displayed. The only relevant conditions on the signage related to permits is as follows:
“PERMIT HOLDERS ONLY MONDAY-FRIDAY 8am-5pm”
“Ensure you have displayed your permit clearly, face up in the windscreen or window of your vehicle allowing clear visibility for the parking attendant”
Arguably, these conditions have been complied with as evidenced by the email correspondence with the landowner and the photographic evidence taken by TPS therefore there has been no breach and no charge is due or payable.

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

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

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

Posted by: ohnoes Tue, 2 Jul 2019 - 08:42
Post #1496597

Good morning everyone, any thoughts on the draft in my last post? All feedback appreciated!

Posted by: ohnoes Wed, 3 Jul 2019 - 13:23
Post #1496889

Hi everyone, sorry to bother again. Has anyone got any thoughts on the draft above?

Posted by: nosferatu1001 Wed, 3 Jul 2019 - 13:33
Post #1496893

It looks to have covered the bases.

I would expect POPLA to still somehow side with TPS.

Posted by: ohnoes Fri, 26 Jul 2019 - 13:02
Post #1502923

Looks like TPS are contesting the POPLA appeal but have not answered any of the questions posed in my POPLA submission.

This is the basis of their evidence in full:
Operator Name Total Parking Solutions - EW
Operator Case Summary
The Terms and Conditions of parking at this location are clearly displayed at the entrance and throughout the site. The onus is with the driver to ensure that when parking on private property they do so in accordance with the Terms and Conditions. The vehicle was logged by Patrol officer as the vehicle did not display a valid permit which breaches the Terms and Conditions of this site.

They have provided a bunch of photos of signage and a map with their locations on the campus, images of the actual PCN, the non compliant NTK that was sent to the details provided to them on the RK appeal letter (rather than from the DVLA), images of the car in situ and copies of the initial appeal and replies.

Would you recommend adding any comments to POPLA before they look at the case?

Posted by: nosferatu1001 Fri, 26 Jul 2019 - 13:39
Post #1502935

Yes, of course

1) Anythign they DIDNT comment on (rebut), tell the POPLA assessoer that means the operator agrees with you. AS they agree, the appeal must be upheld
2) Anything they DID comment on, examine it to make sure it actually says what they say it does. If it shows an issue you say.

Posted by: ohnoes Fri, 26 Jul 2019 - 14:42
Post #1502954

Well then they literally agree with my entire appeal, apart from photos of the car/signs/pcn/ntk etc my last post was the entire content of their evidence to the assessor!

I will post up draft comments for review before posting them to POPLA.

Posted by: nosferatu1001 Fri, 26 Jul 2019 - 14:57
Post #1502971

You have 2000 CHARACTERS for your response.

Posted by: ohnoes Fri, 26 Jul 2019 - 16:02
Post #1502986

Just under 1,900 characters. Anything I missed?

Comments to POPLA assessor:

It appears that a generic template argument has been used, ignoring completely the facts of this case. With the lack of any specific rebuttal from TPS to any and all of the points I have raised, it appears that they agree with the premise of my appeal. Therefore, the adjudicator must uphold the appeal on all points.

1. The driver has not been identified and TPS have failed to obtain the keepers details from the DVLA within the designated time scales, therefore they can not transfer liability to the keeper. No evidence has been offered to show compliance with PoFA or that keeper details were requested within the time scales specified by PoFA from the DVLA.

2. TPS have not addressed email evidence in my submission that the landowner considered the permit displayed on the vehicle as valid. No further evidence has been offered by TPS to rebut this point or elaborate on why they considered the permit displayed to be invalid.

3. TPS have not addressed the fact that none of the terms and conditions of parking as displayed on the signage by the vehicle, were broken. A permit considered valid by the land owner was displayed on the vehicle and is clearly seen in their evidence pack, and all other signed conditions were complied with. TPS have not elaborated as to how the terms of parking were broken, nor have they explained how the signage restricts parking to only certain 'types' of permit.

4. TPS have not addressed the fact that their signage is forbidding in nature therefore could not be enforced even if there was a breach of terms.

5. TPS have failed to provide evidence of landowner authority to pursue any parking charges on this land.

6. TPS have included images of signage in their evidence which does not relate to the signage displayed by the vehicle and included in my submission. I question why these signs (mentioning pay and display for example) have been included in their evidence and why TPS have failed to indicate where the vehicle was parked in relation to any of the signs they have included.

Posted by: ohnoes Thu, 22 Aug 2019 - 15:19
Post #1509830

Good result, thanks for the assists.
Not sure how the assessor came to the conclusion that the appellant was the driver (they were not).


Decision
Successful

Assessor Name
Eileen Ioannou

Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) as the vehicle did not display a valid permit.

Assessor summary of your case
Within their appeal to POPLA the appellant says that the parking operator has failed to comply with the requirements set out within the Protection of Freedom Act (PoFA) 2012 therefore keeper liability cannot be applied. The appellant says that the operator has failed to identify the person that they are pursuing is the driver. Further, the appellant says that the parking operator does not have compliant signage in respect of an offer of contract stating that no breach occurred. In addition, the appellant says the operator does not have the authority to issue charges at the site and puts it to strict compliance with the BPA Code of Practice.

Assessor supporting rational for decision
Having reviewed the appellant’s case, I consider them to be the driver; therefore, I will be considering their liability in this review. The assessor’s remit is to consider whether a PCN has been issued correctly by taking into considering the circumstances and any evidence presented by both parties. It is important to note that the nature of the relationship between the motorist and the parking operator is contractual. The driver is granted permission to park at the site by way of making an offer in signage displayed at the site. It is the driver’s obligation to check for signage. The contract offered at the site allows the motorist to decide if they wish to accept the offer of the terms set out on the signs or leave to find more suitable parking. The photographic evidence of the signage at the car park states, “Up to 2 hours (obtain your free ticket from the machi9ne) Free”, “Over 2 hours £3.10” and “Ensure you have clearly displayed wither your valid University Vehicle Entry Permit, Free ticket or Pay & Display ticket at all times…” I can see that there is a helpline number for motorists to use for assistance. The PCN was issued as the vehicle did not display a valid permit. By issuing a PCN the parking operator has implied that there was a breach of the terms and conditions offered at the car park. Section 7.1 of the BPA Code of Practice states, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the car park that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. By issuing the appellant with a PCN, the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. It is the duty of the operator to provide evidence to POPLA of the terms and conditions that the appellant did not comply with and evidence that the appellant did not indeed comply with these terms and conditions. In this case, the operator has failed to supply a copy of the contract that it has with the landowner, as such, it is not possible to determine that it has the required authority to issue enforcement at the site. I note that the appellant brought various points to POPLA within their appeal. However, as I have allowed this appeal for the reasons given within this assessment, I do not feel that the additional grounds require any further consideration. Accordingly, I must allow this appeal.

Posted by: ostell Thu, 22 Aug 2019 - 21:15
Post #1509901

Completely bizarre reasoning but the right result.

Posted by: Redivi Fri, 23 Aug 2019 - 00:09
Post #1509923

Very bizarre

POPLA only requires a letter from the land-owner confirming that the company is authorised to manage the car park

Until recently, the parking company could write and sign the letter

Posted by: The Rookie Fri, 23 Aug 2019 - 07:54
Post #1509945

Maybe TPS didn't even provide the letter.

Posted by: ohnoes Fri, 23 Aug 2019 - 08:37
Post #1509955

I didn't see it in their evidence pack, which was mainly a collection of random signs unrelated to where the vehicle was parked and copies of the defective NTK and the original ticket.

Posted by: Redivi Fri, 23 Aug 2019 - 09:46
Post #1509976

Ironic that for many years TPS has proudly advertised its ISO 9001 quality certification