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please can somone help received this in the post
ive already sent letter about transfer of liabilty waiting for there reply
the vechile was having mechanical issue and driver went into the garage to ask about waiting there and who was needed to contact -
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ive already sent letter about transfer of liabilty
What exactly did you say in this letter? From whom and to whom are you seeking to transfer liability? -
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sorry been away heres what i put including VRM and date contravention was this ok to send
As your Parking Charge Notice does not comply with the requirements of the Protection of Freedoms Act 2012 (Schedule 4), you are, in law, unable to hold the registered keeper of the vehicle liable for the parking charge; I suggest therefore that you contact the driver. As there is no legal requirement placed on the registered keeper to identify the driver, I will not be doing so -
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When did you appeal? If you have not heard back within the indicated timescales (and you've double checked your spam folder) then write to them to ask for an update.
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I've received this back from them
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Good, you've got a POPLA code - time to start drafting a POPLA appeal. Take a look on PePiPoo and the Money Saving Expert Private Parking Forum for some recent examples of POPLA appeals that have used PoFA based arguments (particularly a 'late' notice argument). Be sure to do some research, and then share with us a draft for comment.
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how does this look like for starters
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice you issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1 No keeper liability
2 BPA Code of Practice - non-compliance to guidelines
3 No landowner authority
1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012. No 'Notice to Driver' was served whilst the car was stationary.
Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.
I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:
- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,
OR
- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.
Neither of these two mandatory routes were followed in this case. Paragraph 7 states:
7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
No such Notice to Driver was served. Instead, a hybrid document the operator called a 'Parking Charge Notice' (PCN) was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).
The non-compliant wording of this PCN is fatal for 'keeper liability'.
In terms of wording:
- Contrary to the requirements of Paragraph 9(2)(b), the PCN did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.
- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''
- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''
- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by Mail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.
Consequently, MET has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.
If MET should try to suggest that there is any method out with the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.
The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:
www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade
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.”
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; or
(b)has given a notice to keeper in accordance with paragraph 9.
The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.
2) BPA Code of Practice - non-compliance to guidelines:
The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The parking charge notice in question contains one photograph of the vehicle number plate. They do not clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite MET to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.
3) No landowner Authority:
I question MET’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park. I require MET to provide a contract specifically for this site.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MET to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question MET’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that MET is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that MET are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''
I put MET to strict proof of compliance with all of the above requirements.
This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 1 hour in a car park.
I require MET to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
Additionally to the above, as recently as 10th July 2017, POPLA Assessor Alexandra Roby in POPLA adjudication 3581377030 gave the following decision:
While I acknowledge that the appellant has raised a number of grounds for appeal, my report will focus solely on landowner authority as this supersedes the other aspects of the appeal. Section 7.1 of the BPA Code of Practice outlines to operators, “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 site 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”. The operator has not provided any evidence in response to this ground of appeal. Ultimately, the burden of proof lies with the operator to show that the appellant has not complied with the terms and conditions of the car park. While I acknowledge the operator has provided sufficient evidence of the terms and conditions of the car park, they have not provided any evidence of the landowner authority. As such, I am unable to establish whether the operator has the authority to issue PCNs for this car park. Upon consideration of this evidence, I cannot confirm that the PCN has been issued correctly. Accordingly I must allow this appeal -
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No 'Notice to Driver' was served whilst the car was stationary.
One isn't required. All of the spiel about Notices to Driver serves as an unnecessary distraction from your more salient points. You could cut this out to focus on the main point. For example:1. Lack of Keeper Liability
I am appealing this charge in my capacity as the Registered Keeper of the vehicle. The driver of the vehicle has not been identified. MET Parking are unable to recover the charge from me as the Registered Keeper as they have chosen not to make use of the provisions of Schedule 4 of the Protection of Freedoms Act (PoFA). Although the notice purports to be a 'Notice to Keeper', it has not been given in accordance with paragraph 9 of PoFA.
Paragraph 9(4) of PoFA states:(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
The 'relevant period' is defined by paragraph 9(5) as "the period of 14 days beginning with the day after that on which the specified period of parking ended". Paragraph 9(6) states:A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
Date of parking period: 30 September 2023
Date of issue/posting of notice: 17 October 2023
Date the notice is delivered/"given": 19 October 2023
Elapsed period between event and giving of notice: 19 days
It is therefore clear that the notice was not given within the relevant period of 14 days, as required by 9(4) of PoFA. As a result, MET Parking are unable to recover the charge from me, the Registered Keeper, and the charge should therefore be cancelled.
Then carry on with your other points.
On those...The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way.
Make sure you're using the most recent Code of Practice - 20.5a doesn't exist, it's 21.5a in the latest CoP. I'm not sure this is the strongest point in the world anyway (although the timestamp isn't particularly legible), but no real harm in including it.3) No landowner Authority:
Again, make sure you're using up-to-date information here. You describe a ruling from 2017 as 'recent', which might be a bit of a stretch, it was 6 years ago. There's some suggested wording on the MSE forum here you can use if you want to make this point: https://forums.moneysavingexpert.com/discussion/comment/71287628/#Comment_71287628 -
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is this better
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice you issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1 No keeper liability
2 BPA Code of Practice - non-compliance to guidelines
3 No landowner authority
1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012. No 'Notice to Driver' was served whilst the car was stationary.
Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.
I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:
- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,
OR
- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.
Neither of these two mandatory routes were followed in this case. Paragraph 7 states:
7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
No such Notice to Driver was served. Instead, a hybrid document the operator called a 'Parking Charge Notice' (PCN) was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).
The non-compliant wording of this PCN is fatal for 'keeper liability'.
In terms of wording:
- Contrary to the requirements of Paragraph 9(2)(b), the PCN did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.
- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''
- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''
- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by Mail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.
Consequently, MET has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.
If MET should try to suggest that there is any method out with the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.
The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:
www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade
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.”
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; or
(b)has given a notice to keeper in accordance with paragraph 9.
The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.
2) BPA Code of Practice - non-compliance to guidelines:
The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The parking charge notice in question contains one photograph of the vehicle number plate. They do not clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite MET to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.
3) No landowner Authority:
I question MET’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park. I require MET to provide a contract specifically for this site.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MET to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question MET’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that MET is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that MET are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''
I put MET to strict proof of compliance with all of the above requirements.
This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 1 hour in a car park.
I require MET to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
While I acknowledge that the appellant has raised a number of grounds for appeal, my report will focus solely on landowner authority as this supersedes the other aspects of the appeal. Section 7.1 of the BPA Code of Practice outlines to operators, “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 site 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”. The operator has not provided any evidence in response to this ground of appeal. Ultimately, the burden of proof lies with the operator to show that the appellant has not complied with the terms and conditions of the car park. While I acknowledge the operator has provided sufficient evidence of the terms and conditions of the car park, they have not provided any evidence of the landowner authority. As such, I am unable to establish whether the operator has the authority to issue PCNs for this car park. Upon consideration of this evidence, I cannot confirm that the PCN has been issued correctly. Accordingly, I must allow this appeal
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is this better
No - all you have done is remove one line, taking on board none of the suggestions I made in my previous reply. I even rewrote one of the sections for you (section #1), and pointed you in the direction of wording for #3, but your 'new' draft contains none of this.
You need to read what I put in my previous reply and amend the draft on this basis. -
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m i getting there with the draft
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice you issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1 No keeper liability
2 BPA Code of Practice - non-compliance to guidelines
3 No landowner authority
1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012. No 'Notice to Driver' was served whilst the car was stationary.
Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.
I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:
- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,
OR
- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.
Neither of these two mandatory routes were followed in this case. Paragraph 7 states:
7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
No such Notice to Driver was served. Instead, a hybrid document the operator called a 'Parking Charge Notice' (PCN) was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).
The non-compliant wording of this PCN is fatal for 'keeper liability'.
In terms of wording:
- Contrary to the requirements of Paragraph 9(2)(b), the PCN did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.
- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''
- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''
- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by Mail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.
Consequently, MET has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.
If MET should try to suggest that there is any method out with the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.
The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:
www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade
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.”
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; or
(b)has given a notice to keeper in accordance with paragraph 9.
The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.
2) BPA Code of Practice 21.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photographs. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.
3) No landowner Authority:
I question MET’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park. I require MET to provide a contract specifically for this site.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MET to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question MET’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that MET is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that MET are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''
I put MET to strict proof of compliance with all of the above requirements.
This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 1 hour in a car park.
I require MET to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
While I acknowledge that the appellant has raised a number of grounds for appeal, my report will focus solely on landowner authority as this supersedes the other aspects of the appeal. Section 7.1 of the BPA Code of Practice outlines to operators, “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 site 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”. The operator has not provided any evidence in response to this ground of appeal. Ultimately, the burden of proof lies with the operator to show that the appellant has not complied with the terms and conditions of the car park. While I acknowledge the operator has provided sufficient evidence of the terms and conditions of the car park, they have not provided any evidence of the landowner authority. As such, I am unable to establish whether the operator has the authority to issue PCNs for this car park. Upon consideration of this evidence, I cannot confirm that the PCN has been issued correctly. Accordingly, I must allow this appeal
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Are you reading my comments? Because your changes don't seem to be taking on board anything I'm saying.
Why are you still referring to the requirements for a Notice to Driver? They haven't served one, so it's entirely irrelevant.
Your strongest point is that the notice was not served within 14 days, yet you barely make mention of this. I provided you some exact wording you could use for this, as this should be your key point, and IMO the first thing you mention in the appeal -
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please bear with me I have trouble reading things and taking the on board ill have another try today and see what i can draft
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is this better
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice you issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1 Lack of keeper liability
2 BPA Code of Practice - non-compliance to guidelines
3 No landowner authority
4 Airports Act 1986
1. Lack of Keeper Liability
I am appealing this charge in my capacity as the Registered Keeper of the vehicle. The driver of the vehicle has not been identified. MET Parking are unable to recover the charge from me as the Registered Keeper as they have chosen not to make use of the provisions of Schedule 4 of the Protection of Freedoms Act (PoFA). Although the notice purports to be a 'Notice to Keeper', it has not been given in accordance with paragraph 9 of PoFA.
Paragraph 9(4) of PoFA states:
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
The 'relevant period' is defined by paragraph 9(5) as "the period of 14 days beginning with the day after that on which the specified period of parking ended". Paragraph 9(6) states:
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
Date of parking period: 30 September 2023
Date of issue/posting of notice: 17 October 2023
Date the notice is delivered/"given": 19 October 2023
Elapsed period between event and giving of notice: 19 days
It is therefore clear that the notice was not given within the relevant period of 14 days, as required by 9(4) of PoFA. As a result, MET Parking are unable to recover the charge from me, the Registered Keeper, and the charge should therefore be cancelled
2: BPA Code of Practice 21.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photographs. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.
3: I question MET’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park. I require MET to provide a contract specifically for this site.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MET to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question MET’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that MET is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that MET are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''
I put MET to strict proof of compliance with all of the above requirements.
This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 1 hour in a car park.
I require MET to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
4:The BP Stansted Connect, Southgate Rd, Stansted CM24 1PY falls within the boundaries of land defined as airport land by the Airports Act 1986 (see pg. 28 of the Uttlesford Local Plan (2005)where this land is clearly denoted as airport land, title number EX438483).Airport land is not 'relevant land' for the purposes of the Protection of Freedoms Act 2012 as it is already covered by statutory bylaws and is therefore specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper, I am not legally liable as this legislation does not apply on this land. I put MET Parking Services Ltd to strict proof if they disagree with this point and require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. POPLA assessor Steve Macallan found in 6062356150 in September 2016 that land under statutory control cannot be considered ‘relevant land’ for the purposes of the Protection of Freedoms Act2012:“As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.”
Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments. The Airport Act 1986 states:65 Control of road traffic at designated airport (1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access
am i chancing my arm with the last bit
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received this email this morning
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
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