Free Traffic Legal Advice

POPLA have just notified me that PE’s evidence pack has been uploaded
Looking at it the content it contains a one page case History summary which includes a bolded statement saying “this Parking Charge was not issued under thePoFA 2012”
Beyond that it only contains copies of the PCNs, appeals correspondence between parties and photo examples of signage and site maps.
I’ll try to upload for your review - it’s 45pages long (20+ are signage images)

Based on the content of the evidence pack not addressing the appeal being based on hirer non liability, is the following response to POPLA  suitable?:



The operator’s evidence pack confirms the decisive issue in this appeal.

Under the “Additional Information” section of its own case summary, the operator states (in bold):

“Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012.”

This admission is determinative.

The appellant is the hirer/lessee of the vehicle, was not the driver, and has not identified the driver. As the operator has expressly confirmed that it is not relying on the Protection of Freedoms Act 2012, there is no lawful mechanism by which liability can be transferred to the appellant.

Where an operator does not rely on PoFA, it may pursue only the driver. The operator has produced no evidence identifying the appellant as the driver. POPLA cannot infer, assume, or speculate as to driver identity, and the burden of proof remains with the operator.

The remainder of the operator’s evidence pack relates to signage, site maps, ANPR operation, grace periods, and alleged contractual terms. These matters are irrelevant. Liability is a threshold issue. In the absence of PoFA reliance or evidence of driver identity, POPLA cannot consider signage, contractual formation, or any alleged breach.

The operator has therefore failed to establish:
   •   driver liability, because no evidence identifies the appellant as the driver; and
   •   hirer liability, because the operator has expressly confirmed that the Parking Charge was not issued under PoFA and has not attempted statutory transfer of liability.

As the operator has not demonstrated any lawful basis to pursue this appellant, the Parking Charge Notice has not been issued correctly against them. POPLA must allow the appeal.

Hi,
Could I get your opinion on the following appeal I plan to send to POPLA for a PCN appeal rejected by Pakingeye.

I am lessee of the vehicle and the driver has not been identified at any point.

I’m wondering if points 3 & 4 are strong enough to include or should be removed?

The initial appeal made to ParkingEye was on the grinds of PoFA 12 -4 not providing hirer documentation and that the hirer cannot be presumed or inferred to have been the driver as suggesting on other threads here on the forum.

Thanks in advance for your help


POPLA Reference: ######
ParkingEye PCN: #####
Vehicle Registration: #######
Operator: ParkingEye Ltd
Location: ASDA Bexleyheath
Appellant Status: Hirer / Lessee of the vehicle


POPLA Adjudicator,

I am the hirer/lessee of the above vehicle. I was not the driver at the time of the alleged event and I have not named the driver.

ParkingEye is attempting to transfer liability to me without meeting the strict statutory requirements of the Protection of Freedoms Act 2012 (POFA), Schedule 4, which governs private parking charges.

This appeal is made on the following grounds, any one of which is sufficient on its own for POPLA to allow the appeal:

1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA')

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) Inadequate evidence of breach of parking terms.  ANPR only demonstrates entry and exit time

4) No proof that signage is prominent and legible at the location in which the vehicle was parked.

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


GROUND 1: FAILURE TO COMPLY WITH POFA 2012 – NO HIRER LIABILITY

In order to rely upon PoFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with PoFA's strict requirements.
In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of PoFA, with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2):

(i) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(ii) a copy of the hire agreement;

(iii) a copy of a statement of liability signed by the hirer under that hire agreement, together with a copy of the Notice to Keeper.

In this instance, the operator failed to provide copies of any of these documents, (i), (ii) or (iii) with their Notice to Hirer.

Additionally, the Notice to Hirer further fails to comply to PoFA requirements in stating a period for payment being 28 days, which in fact is documented in Schedule 4, Paragraph 12 (2) (b) of PoFA as being 21 days:

“the creditor may recover those charges (so far as they remain unpaid) from the hirer.

The conditions are that—

(a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) a period of 21 days beginning with the day on which the notice to hirer was given has elapsed;”

GROUND 2: NO EVIDENCE OF DRIVER LIABILITY

In cases with a keeper appellant, yet no PoFA 'keeper/hirer 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.

Where a charge is aimed only at a driver then, of course, no other party 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 hirer without a valid Notice to Hirer.

As the hirer 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 of PoFA. This applies regardless of when the first appeal was made because the fact remains I am only the hirer and ONLY Schedule 4 of the PoFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use PoFA in this case, 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.

Furthermore, the vital matter of full compliance with the PoFA 2012 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 hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.''

GROUND 3: INADEQUATE EVIDENCE OF A BREACH OF PARKING TERMS

ParkingEye alleges that the vehicle exceeded a 3-hour maximum stay.

However:
   •   ANPR records only entry and exit times, not actual parking time
   •   No allowance has been made for grace periods required by the BPA Code of Practice (Sections 13.1 & 13.2)
   •   The operator has not demonstrated when the vehicle was parked, only when it passed cameras

ParkingEye has therefore failed to prove that the vehicle was parked in breach of any contractual term.


GROUND 4: SIGNAGE NOT PROVEN TO BE PROMINENT OR LEGIBLE

ParkingEye has not provided evidence that:
   •   The signage was clearly visible upon entry
   •   The terms were prominent, legible, and capable of forming a contract
   •   The maximum stay and charge were adequately brought to the attention of the driver

Generic signage photographs are insufficient. ParkingEye must prove the signage as it appeared on the material date, at the vehicle’s location, from a driver’s perspective.


GROUND 5: NO EVIDENCE OF LANDOWNER AUTHORITY

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



In summary, I respectfully request that POPLA uphold my appeal and cancel the Parking Charge Notice on the grounds raised:

1. Non-compliance with PoFA 2012
2. No evidence the appellant is the driver
3. Inconclusive evidence of contractual breach
4. Unable to demonstrate adequate signage in location of vehicle
5. Lack of landowner authority

Given the Operator’s failure to comply with legal requirements and BPA guidelines, I request that this appeal be upheld, and the Parking Charge Notice be cancelled.

Thanks everyone for your input.  It seems this topic cause a little bit of dispute on approach to take.
I received an email this morning from Gemini confirming my appeal had been upheld and the PC has been cancelled

Thinking that the thread had ended at the time, I had submitted my appeal before some of the later replies came through but thanks again all for your continued & generous assistance.

The appeal I submitted that thankfully didn’t FUBAR things was:

I am appealing as the hirer/keeper of the vehicle.

This notice does not comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 for hire vehicles. No copy of the hire agreement or statement of liability was provided as required by paragraph 14(2), and the notice was issued well outside the statutory timeframe.

As such, there is no keeper or hirer liability, and I am under no obligation to name the driver. Please cancel this charge or confirm that no further action will be taken against me.

Yours faithfully,
[Your Name]
Hirer / Keeper


Thanks again to FTLA members

So I assume pofa schedule 4 re keeper/hirer is not liable nor will I be disclosing the driver is the route to take for appeal?:

“This notice is not compliant with Schedule 4 of the Protection of Freedoms Act 2012 as it was issued well outside the statutory relevant period. I was not the driver and there is no keeper liability. Please cancel the charge”

I’m pretty surprised that it’s deemed acceptable to issue a PCN over 3 years after the incident occurred.
How would it be possible to evidence further. arguments like clear signage was on site at the time, etc if it were to go to POPLA?

Thanks

Yes, the NtK is addressed to me and I wasn’t ever a registered keeper of the vehicle. It was a temporary hire courtesy car while a vehicle in our house was being repaired.

UPDATE: POPLA appeal was successful and Horizon have withdrawn from the appeal

Thanks again b789 for your assistance



The operator has contacted us and told us that they have withdrawn your appeal.

If you have already paid your parking charge, this is the reason your appeal will have been withdrawn. Unfortunately, you cannot pay your parking charge and appeal, which means that POPLA’s involvement in your appeal has ended. You will not be able to request a refund of the amount paid in order to resubmit your appeal to us.

If you have not paid your parking charge, the operator has reviewed your appeal and chosen to cancel the parking charge. As the operator has withdrawn your appeal, POPLA’s involvement has now ended and you do not need to take any further action.

Kind regards

POPLA Team

As expected Horizon have come back with a letter rejecting the appeal:


https://imgur.com/a/SCJjYmP


So off to POPLA for next round….


In terms of grounds for appeal is the following suitable?:



POPLA Adjudicator,
I am appealing a parking charge issued by Horizon Parking based on the following points:

1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the
requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA')
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) No evidence of Landowner Authority - the operator is put to strict proof of full
compliance with the BPA Code of Practice


1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the
requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA')
In order to rely upon PoFA to claim unpaid parking charges from a vehicle's hirer, an
operator must deliver a Notice to Hirer in full compliance with PoFA's strict requirements.
In this instance, the Operator's Notice to Hirer did not comply.
The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of
Schedule 4 of PoFA, with the conditions that the Creditor must meet in order to be able
to hold the hirer liable for the charge being set out in Paragraph 14.
Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the
relevant period, the Creditor must also provide the Hirer with a copy of the documents
mentioned in Paragraph 13(2):
(i) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the
material time the vehicle was hired to a named person under a hire agreement;
(ii) a copy of the hire agreement;
(iii) a copy of a statement of liability signed by the hirer under that hire agreement,
together with a copy of the Notice to Keeper.
In this instance, the operator failed to provide copies of any of these documents, (i), (ii)
or (iii) with their Notice to Hirer.
Additionally, the Notice to Hirer further fails to comply to PoFA requirements in stating a
period for payment being 28 days, which in fact is documented in Schedule 4, Paragraph
12 (2) (b) of PoFA as being 21 days:
“the creditor may recover those charges (so far as they remain unpaid) from the hirer.
The conditions are that—
(a) the creditor has within the relevant period given the hirer a notice in accordance
with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents
mentioned in paragraph 13(2) and the notice to keeper;
(b) a period of 21 days beginning with the day on which the notice to hirer was given
has elapsed;”

2. The operator has not shown that the individual who it is pursuing is in fact the
driver who was liable for the charge
In cases with a keeper appellant, yet no PoFA 'keeper/hirer 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.
Where a charge is aimed only at a driver then, of course, no other party 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 hirer without a valid Notice to Hirer.
As the hirer 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 of PoFA. This
applies regardless of when the first appeal was made because the fact remains I am
only the hirer and ONLY Schedule 4 of the PoFA (or evidence of who was driving) can
cause a hirer appellant to be deemed to be the liable party.
The burden of proof rests with the Operator, because they cannot use PoFA in this case,
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.
Furthermore, the vital matter of full compliance with the PoFA 2012 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 hirer of
the vehicle, where an operator is NOT attempting to transfer the liability for the charge
using the Protection of Freedoms Act 2012.
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