QUOTE (nosferatu1001 @ Thu, 24 May 2018 - 08:46)
Yes, of coruse you do.
Dont drop the chance of a POPLA appeal.
Managem,ent company refuse to give me a copy of the contract but state it is a contract between them and PPS.
Can I have some assistance with my POPLA appeal please? I need to apply tonight.
Points I need to look at (referenced from here:
https://www.parkingcowboys.co.uk/keeper-liability/):NTD:
Which car the ticket relates to
Not my car
What land the car was parked on
Accurate
The period the car was parked
It doesn't state "date of offence", does this matter?When and how the parking rules were broken
"Permit required"
What the parking charges are for the infringement of the rules, and of the maximum additional costs they may seek to recover, and the date by which those parking charges should be paid
I think this is accurate
Any discounts for paying within 14 days – which should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice (applies to BPA Members only)
Accurate
How to pay and to whom (this must be the person legally entitled to the money – the “Creditor”)
Accurate
The date the time the notice was issued
Accurate
How appeals and complaints can be dealt with – for parking companies who are members of the B PA
Accurate
NTK
Which car the ticket relates to
Accurate
What land the car was parked on
Accurate
The period the car was parked
It doesn't state "date of offence", does this matter? Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
Accurate
State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when
I think this is accurate
Specify the outstanding amount of the parking charge and of the maximum additional costs they may seek to recover, and of the dispute resolution arrangements
It doesn't state "maximum", does this matter?
Invite the registered keeper to pay the outstanding parking charge or, if he was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver
Accurate
Identify the “creditor” who is legally entitled to recover the parking charge
Accurate
Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.
Accurate
Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)
DOES NOT EXIST
Date of the notice
Accurate
This is what I have so far:
Dear POPLA,
I am appealing on the following three grounds:
1-The Notice to Driver is not POFA compliant (schedule 4 paragraph 7) as it does not relate to my car (picture provided). Failure to be POFA-compliant means they cannot hold me, the keeper, liable.
2-The Notice To Keeper is not POFA compliant (Schedule 4 paragraphs 8 and 9) as it does not give details of the discount for payment within 14 days, despite the issuer being a member of the BPA (picture provided). Failure to be POFA-compliant means they cannot hold me, the keeper, liable.
3-The driver parked in accordance with the occupier of the land's instructions and the contract formed with them is superior to any offer and consideration of the signage, a few of which state that it is for residents only, and I, the keeper (I cannot remember which of the residents was the driver on that day) am a resident. Should the parking company believe that their contract with the landlord overrides this then they should provide sight of that contract as proof of their right to make such a claim. In any case I require sight of the contract with the landlord to show strict proof of their right to form contracts, make claims and take legal action in their own name.
If such contracts exist then it is claimed that no loss to the company has been caused by the driver obeying the lawful instruction of the occupier (parking for residents only) and therefore the amount claimed for breach of this supposed contract does not represent any loss.Thanks.
"I am the registered keeper and I wish to appeal a recent parking charge from Private Parking Solutions London (Ltd). I submit the points below to show that I am not liable for the parking charge:
1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) No standing or authority to pursue charges nor form contracts with drivers.
3) 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
1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
The original Parking Charge Notice numbered xxxxxxxxxxxxxxxxxx presented as Notice To Driver, has a registration number given which does not match any vehicle for which I am the Registered Keeper. This was therefore not compliant with the British Parking Association's (BPA) Code of Practice, and further fails the Protection of Freedoms Act (PoFA) 2012, schedule 4., which therefore nullifies the Parking Charge Notice as it was issued with an incorrect Vehicle Registration Number (VRN).
Therefore the Notice to Driver was NOT given correctly.
The Notice to Keeper, dated XXXXX and referenced as Parking Charge Notice numbered xxxxxxxxxxxxx, fails schedule 4 of PoFA as it does not accurately repeat the (incorrect) information given on the original Notice to Driver (referenced as Parking Charge Notice number xxxxxxxxxxxxxx), nor does it give details of the discount for payment within 14 days, despite the issuer being a member of the BPA.
Without a valid Notice To Driver, any Notice to Keeper would have to have been served by day 14 to be PoFA 2012 compliant. PPS (ltd) have failed in this regard, and I am merely the registered keeper so am not liable.
Therefore, Private Parking Solutions Limited has not met the keeper liability requirements and, as a result, keeper liability does not apply. As the keeper of the vehicle I decline, as is my right, to provide the name of the driver(s) at the time. As UK Private Parking Solutions Limited have neither named the driver(s) nor provided any evidence as to who the driver(s) were, I submit I am not liable to any charge.
2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
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
3) 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. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made 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, still relevant with Private Parking Solutions (Ltd) 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.''
This concludes my POPLA appeal."