The appellant appeals as keeper. The appellant is not legally obliged to identify the driver and declines to do so.
As the keeper, I am appealing the fact that the PCN was not issued correctly on the following points
1. A PoFA 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 was liable for the charge.
3. The operator attempted to deceive and obstruct the keeper from appealing to POPLA.
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5. The signs in this car park are not prominent, clear or legible from all parking spaces
6. The location is not defined as relevant land, invalidating the PCN.As the keeper appellant, I expand on the appeal points below.
1.
A PoFA compliant Notice to Keeper was never served - no Keeper Liability can apply.The operator has chosen to issue a Notice to Keeper (NtK) that does NOT comply with the requirements of Schedule 4 of the Protection of Freedom Act 2102 (PoFA). The NtK is addressed to the keeper and it states in the NtK that it is the driver who is liable to pay the charge. It is not stated anywhere in the NtK that if the driver does not pay the charge or if the keeper does not identify the driver that the keeper will become liable for the charge.
If the operator wanted to be able to hold the keeper liable for the charge, they must comply fully with the strict requirements of PoFA. They have failed to do so and therefore the keeper cannot be liable for the PCN.
Please note that strict compliance with the requirements of PoFA is required. Partial or even substantial compliance is not sufficient.
2.
The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the chargeAs the operator has chosen to issue an NtK that does NOT comply with the requirements of PoFA, only the driver is liable for the PCN. If the operator wishes to pursue a contractual claim it must do so against the driver, not the keeper and it is not entitled to presume nor infer that the keeper is the driver. This was made crystal clear in the foreword to his annual report for 2015, by POPLA’s then lead adjudicator, barrister Henry Michael Greenslade in the following terms:
“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 [of the Protection of Freedoms Act] to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.”
As the keeper and recipient of the NtK has declined to identify the driver, the operator is put to strict proof that the person they are pursuing is the driver who is liable for the PCN.
3.
The operator attempted to mislead, deceive and obstruct the keeper from appealing to POPLA.In the operators response and rejection of the appellants initial appeal, as the keeper, they have mendaciously stated: “Please be advised, only the driver can appeal to POPLA. POPLA will not accept appeals from the keeper.”
In misleading the keeper about their right to appeal to POPLA, the operator has breached several sections of the British Parking Association (BPA) Code of Practice (CoP). These are some of the specific sections of the BPA CoP that the operator has violated:
Section 2.6 - Keeping to the Code:
2.6: “By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law and act in a professional, reasonable and diligent way.”
Breach: By providing false information about the keeper's right to appeal to POPLA, the operator has failed to act in a professional, reasonable, and diligent manner.
Section 23.1c - General Principles:
23.1c: “You must ensure that a parking charge notice informs the recipient that in the event of the recipient appealing the parking charge and that appeal being rejected, they have a further right of appeal to POPLA but that the discounted rate no longer applies should that appeal also be rejected.”
Breach: The statement made by the operator misinforms the keeper about their right to appeal to POPLA, contrary to the requirement to inform them accurately about their further right of appeal.
Section 23.12 - Rejection of Appeals:
23.12: “Where you reject an appeal against a parking charge notice, you must present the driver, keeper or hire company with the option to:
a) pay the parking charge; or
b) appeal the decision to POPLA
• You must tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code.
• You must give the motorist a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge."
Breach: The operator did not provide accurate instructions on how the keeper could appeal to POPLA, nor did they present the correct options as required.
Section 23.14 - POPLA Appeals:
23.14: “Drivers and keepers may appeal against a parking charge to POPLA but a keeper cannot make an appeal concerning the same incident if the driver has already appealed.”
Breach: This section clearly states that keepers, as well as drivers, have the right to appeal to POPLA, provided the driver has not already appealed. The operators statement directly contradicts this provision.
4.
No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.The operator is also put to strict proof, by means of contemporaneous and
unredacted evidence, of a chain of authority flowing from the landholder of the
"relevant land" to the operator. The “relevant land” is not adequately defined
because there are two possible Lidl store locations in St Neots. It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.
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 “relevant 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 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 Code of Practice 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.
5.
The signs in this car park are not prominent, clear or legible from all parking spacesAs per your draft
6.
The location is not defined as relevant land, invalidating the PCN.As per your draft.