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Thanks for your comments DW. I have amended the draft along the lines you suggest. See what you think of the below. I incorporated a para (the Greenslade quote) from a POPLA appeal on MSE. PE has not alleged that I was the driver (other than obliquely in their second PCN) and are pursuing me as Reg Keeper so I concentrate on the POFA point. I have decided on reflection not to include the Landowner Authority point. The reason is that my whole appeal rests on not knowing where the car park in question is. If I start asking them for details about their contract with the landowner it might imply that I do know where the car park is or even if not, it allows PE to open up the whole question of where it is i.e. if I show this level of interest then I am derogating from my main argument.

Registered Keeper/Driver

I received a Parking Charge Notice (“PCN”) issued by Parking Eye (“PE”) to Registered Keeper ref ###### dated 1 August 2023 for vehicle VRM ###### of which I am the registered keeper, alleging a parking “offence” on 27 July. I was not the driver of the car on the date in question and I have made this clear in my appeal to PE. They are therefore pursuing me for payment of the PCN as Registered Keeper and not as the driver. This brings the PCN within the ambit of the Protection of Freedoms Act 2012 (“POFA”).

Failure to Comply with POFA

This PCN fails to comply with the requirements of Schedule 4 of POFA namely, but not limited to, failing to specify the location of the relevant land as required by section 9 (2)(a) of the Act. It is not possible to determine the location of the alleged breach of their conditions because the PCN states the address as just "St Michaels Court". A quick check on Google Maps finds at least nine St Michaels Courts in England including Aylsham, Amersham, two addresses in London, South Shields, Gloucester, Derby, Litchfield and Weybridge. PE therefore cannot transfer liability for the alleged charge from the driver at the time to me, the Registered Keeper. There is no legal requirement to name the driver at the time and I have not done so. Even if the address is more specifically noted in another medium or at a later date, the PCN itself needs to specify “the location of the relevant land” and it does not.
 
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 [my emphasis], 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 me as keeper of the vehicle, where an operator cannot transfer the liability for the charge using POFA, because (as is the case here), Schedule 4 has not been strictly complied with.

Appeal to PE

The PCN set out four options as follows:

To pay the driver's alleged parking charge;
To name the driver;
To appeal;
To pay and appeal.

I elected to appeal which I did on 14 August and which then gave PE 35 days to serve their substantive response.
 
On 30 August I received a response which neither accepted nor rejected my appeal but asked again for the driver's details. It went on to say that “if this information is not provided within 28 days the appeal may well be rejected". This appeared to tie their consideration of the merits of my appeal to my willingness to supply the driver's details, which I am under no legal obligation to provide. They were effectively fettering their discretion.

Such a response is not permitted under the BPA Code of Practice and ranks alongside the fourth 'option' of paying the parking charge and appealing which is similarly proscribed under the code.

On 1 September I wrote to PE bringing this extra-procedural response to their attention. They responded by post in a letter received by me on 4 September by issuing a second PCN, bearing the same number as the original but dated 30 August in respect of the same alleged parking charge, asking for a penalty to be paid within 28 days of the [new] issue date.

On the back of the “new” PCN is a paragraph that says as follows:

“We originally wrote to the registered keeper [that is me] of the vehicle whose details were held by the DVLA at the time of the parking event and they [me again] have informed us that you [me again] were responsible for this vehicle at the time of the parking event [which I did not]…..if you were not the driver at the time [I had already told them I was not] you should tell us the name and current postal address of the driver [I am under no legal obligation to do this]”.

They had thus sent me two separate PCNs on different dates of issue for the same “offence” including a paragraph in the second which is misinformed and thoroughly confusing.

Rejection of Appeal

Finally on 16 September PE sent a letter rejecting my appeal. The reason given for the rejection was as follows:

“We have reviewed the details outlined in your appeal, but we are not in receipt of sufficient evidence to confirm that the terms and conditions were not breached. These terms are clearly displayed on the signage located throughout the above car park.”

This signally fails to address the fundamental point of my appeal which is that the PCN does not identify the location of the car park where the “offence” is alleged to have taken place and hence I have no opportunity to inspect any signage. Simply telling me it was “St Michael’s Court” does not give me sufficient detail to allow me to locate the car park in question and hence any discussion of the terms and conditions that were or were not displayed and were or were not breached is simply irrelevant. I made no reference in my appeal to such terms and conditions. PE has wilfully ignored the whole question of “location of the relevant land” which demonstrates that my appeal has not been properly considered.

Summary

I contend that there is a defect in the original PCN which renders it non-compliant with section 9(2)(a) of POFA 2012 and as such liability cannot be transferred to me as the registered keeper. No subsequent further or better specification of the address (of which there has been none) can remedy this defect.

As a secondary point of appeal I note PE’s issue of a second PCN dated 30 August but alleging the same offence date of 27 July, which bore an incoherent paragraph on the back (as set out above) claiming I had done or said things as the registered keeper that patently I had not. Taken together with the implied threat that if I did not identify the driver my appeal “may well be rejected” this is an example of outrageous bad faith that should call for the PCN to be dismissed immediately.

Finally, my appeal has been rejected in what looks like a standard form letter that fails to address the key ground for my appeal and demonstrates that it has not been properly considered at all.

I request that the appeal be upheld and the charge cancelled.

DW, yes I see your point and I have to agree your logic, but it comes down to the same thing - they didn't specify the address of the car park in sufficient detail and hence I maintain I don't know where it is which leads to a) I can't inspect any signage and b) they have not complied with POFA. I agree that me just not knowing where the car park is does not get me off HAD THEY actually complied with POFA.

I have picked this up off Pepipoo in the Vale Road case which also hinged on imprecise location. I would hope the POPLA assessor would follow the same thinking here.

Are you happy that I now file that appeal? I will change "offence" to parking event.

If anyone is interested this is the Pepipoo topic link and the judgment appears in post #65.

http://forums.pepipoo.com/index.php?showtopic=144900&st=60

My personal view has always been that appeals look better when emotion is left out of them.

POPLA's job is to assess your liability for the charge, they're not bothered about your outrage, and their members would make far less money if they acted in good faith. I'd stick to the facts. It makes you look reasonable and level-headed, exactly the perception you want to create.

I have now been notified that Parking Eye has submitted its response to my appeal to POPLA. They submitted this on 2 October and I apparently have 7 days within which to comment on that. Their submission is 43 pages long but mainly reproduces the originals of the PCN plus reminders and all the subsequent correspondence in both directions. In other words nothing new. They also reproduce loads of photos of the signage in the car park, my car going in and out, logs of the parking ticket machine showing it was working on the day in question (and indeed that my car paid for two hours of parking which it then overran) etc - all irrelevant to the crux of my appeal and not anything I am taking issue with. What they absolutely do not address is the shortcoming in the original PCN in not identifying the car park in question beyond saying that it is "St Michaels Court". Nor do they address the matter of two PCNs having been issued for the same event and nor the implication that by not identifying the driver "My appeal may well be rejected" which I contend fetters their discretion.

I have copied and pasted into a new document the only new bit of information/evidence from PE (as attached). I have highlighted two particular sentences, one much more significant than the other. This is the important statement:

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

This left me gobsmacked! If you go back to the original PCN, which is attached as an imgur link in post #1, it says on the back under the heading Protection of Freedoms Act:

"You are notified under para 9(2)(b) of schedule 4 of [POFA] that the driver of the motor vehicle is required to pay the Parking Charge in full....you are warned that if, after 29 days from the date given....the Parking Charge has not been paid in full and we do not know both the name and current address of the driver we have the right to recover any unpaid part of the parking charge from you".

It couldn't be clearer. They want to know who the driver is - because the implied contract, subject to the terms and conditions displayed, is between the driver and PE as agent of the landowner - so they can nail the driver for a breach of those terms. However, they only have the details of the registered keeper [me] and I have stated that I was not the driver [which is true]. I am under no legal obligation to name the driver and I have not. So it is only in these circumstances [and assuming that PE has complied with the strict requirements of POFA, which I contend it has not] that PE can transfer liability to me under POFA. And they have said on the original PCN that that is what they are going to do.

Now out of left field they say "this parking charge was not issued under POFA". So if it wasn't, on what basis are they seeking to make me liable? I was not the driver and I did not enter into a contract with either PE or the landowner by parking in a car park whose whereabouts I do not know!

Am I missing something here? Otherwise I propose to say exactly this to POPLA. Secondly that if the claim is being brought under POPLA that they have not complied because they have not specified the relevant land and have not addressed the key point of my appeal in their submission. Thirdly there is the confusing issue of a second PCN for the same offence bearing incoherent and incorrect statements on the back - also not addressed.

The other sentence I have highlighted in the attachment is the one that says "The car didn't have its headlights on so it obviously wasn't dark and the driver should therefore have been able to read the signs". Except the photographs show the car did have its headlights on! However I am not making any points about the signage being unclear, I'm saying they haven't even told  me where the carpark is, so what signs are displayed is irrelevant!

They finish off by saying

"Please note that insufficient evidence has been received to cancel the charge"

In other words I got a stock reply that had been crafted to rebut an appeal along the lines of inadequate signage and I had not made my case. But this was not the crux of my appeal at all. It was quite the opposite - it was that PE had produced insufficient evidence as to the address of the car park in question!

Anything else I should be saying in my final opportunity to nail this one?



[ Guests cannot view attachments ]

Here's my proposed final submission to POPLA

The great majority of Parking Eye’s submission is simply a reproduction of past notices and correspondence which does not require further comment. I comment on the further material put forward by Parking Eye as follows, together with a summary of the main thrust of my appeal which remains unaddressed by Parking Eye (“PE”).

1. I am the registered keeper of the car XXXXXX which was the subject of a Parking Charge Notice for a parking event on 27 July as recorded on PE’s cameras. I was not the driver and I have stated this clearly to PE in my appeal. On the back of the PCN is this paragraph (abridged) under the heading “Protection of Freedoms Act”:

a. "You are notified under para 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 [POFA] that the driver of the motor vehicle is required to pay the Parking Charge in full....you are warned that if, after 29 days from the date given....the Parking Charge has not been paid in full and we do not know both the name and current address of the driver we have the right to recover any unpaid part of the parking charge from you".
b. The implied contract is between the driver and the landowner, acting through PE as its agent. PE’s redress for breach of contract is against the driver. Only in the case where PE has complied strictly with the requirements of Schedule 4 of POFA, and where the driver has not been identified, can PE transfer liability to me as the registered keeper, relying on the provisions under POFA that they quote as above. As stated, this is what they warned me they would do.
c. However, under the heading Additional Information appearing on page 4 (pdf page count) of PE’s submission to POPLA they say:
Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012
This clearly contradicts what they said on the PCN but as this is their final word on the subject I have to take it as such and accordingly they have no basis on which to transfer any liability for a parking charge from the driver (who has not been identified) to me as registered keeper. As such my appeal must be upheld.

2. Prior to seeing the latest submission from PE which asserts they are not seeking to make me liable under POFA, I was appealing on the grounds that PE had not followed the strict requirements under Schedule 4 which includes a requirement to specify the “relevant land”. By stating the location as only “St Michael’s Court” with no street, town or postcode this does not specify the location uniquely or accurately. As I said in my appeal, there are 9 St Michaels Courts in England and it could have been any of them. So even if PE were to assert they are pursuing me under POFA, they have not complied with the strict requirements under Schedule 4 (note words of Henry Greenslade, former POPLA Lead Adjudicator in 2015). PE has never replied to this point and does not do so now. It turned down my appeal on grounds that I had never advanced relating to signage.

3. A month after the original PCN, PE sent me a second one that asserted the same date of parking event, was not labelled as a reminder, but with wording on the back that was untrue and confusing. I set this out in my original appeal to POPLA and nor has this been addressed by PE.

4. If the PCN was issued under POFA then I contend that there is a defect which renders it non-compliant with section 9(2)(a) of POFA 2012 and as such liability cannot be transferred to me as the registered keeper. If, as PE now says, the PCN was not issued under POFA then their redress is only against the driver and I was not the driver.

Thanks DW and you have I think uncovered part of the mystery surrounding the issue of the second PCN on 30 August.

It's in the Case History "Letter Issued - Driver details non POFA" that you draw attention to. That second PCN did indeed omit any reference to POFA but did make some very confusing and plain incorrect statements about what I had told them about the identity of the driver (answer, nothing) - supposedly with my registered keeper hat on I informed PE that I was the driver, but then going on to say that as they don't  know the identity of the driver could I (with my driver hat on) please inform them who it was! I now think this was a recognition that they weren't going to get anywhere down the POFA route and would have a second go at getting me to reveal who the driver was on a non-POFA basis.

Anyway, here's a re-worked submission to POPLA. See what you think of this

The great majority of Parking Eye’s submission is simply a reproduction of past notices and correspondence which does not require further comment. I comment on the further material put forward by Parking Eye as follows, together with a summary of the main thrust of my appeal which remains unaddressed by Parking Eye (“PE”).

1. I am the registered keeper of the car XXXXXX which was the subject of a Parking Charge Notice (“PCN”) for a parking event on 27 July as recorded on PE’s cameras. I was not the driver and I have stated this clearly to PE in my appeal. On the back of the PCN is a paragraph under the heading “Protection of Freedoms Act” which asserts PE’s rights and intentions to hold the keeper liable if it cannot identify the driver.

The implied contract is between the driver and the landowner, acting through PE as its agent. PE’s redress for breach of contract is against the driver. Only in the case where PE has complied strictly with the requirements of Schedule 4 of POFA, and where the driver has not been identified, can PE transfer liability to me as the registered keeper, relying on the provisions under POFA that they quote as above. As stated, this is what they warned me they would do.

However, under the heading Additional Information appearing on page 4 (pdf page count) of PE’s submission to POPLA they say:

Please be advised, this Parking Charge was not [my emphasis] issued under the Protection of Freedoms Act 2012

This clearly contradicts what they said on the PCN but as this is their final word on the subject I have to take it as such and accordingly they have no basis on which to transfer any liability for a parking charge from the driver (who has not been identified) to me as registered keeper. As such my appeal must be upheld.

It is also noteworthy that in the Case History in PE’s submission is included:

30/08/2023 Letter Issued - Driver Details Required non POFA

Which seems to suggest they were proceeding at that stage on the basis that they were not under POFA notwithstanding what the PCN said. What they issued on 30 August was a second PCN detailing the same parking event as the original PCN but without reference to POFA on the back. I submit they cannot legitimately superimpose a second PCN over the top of the first one on different terms and without explanation. That second PCN also made some confusing and plain incorrect statements about what I had or had not told them about the driver.

2. Prior to seeing the latest submission from PE which asserts they are not seeking to make me liable under POFA, I was appealing on the grounds that PE had not followed the strict requirements under Schedule 4 which includes a requirement to specify the “relevant land”. By stating the location as only “St Michael’s Court” with no street, town or postcode this does not specify the location uniquely or accurately. As I said in my appeal, there are 9 St Michaels Courts in England and it could have been any of them. So even if PE were to assert they are pursuing me under POFA, they have not complied with the strict requirements under Schedule 4 (note the words of Henry Greenslade, former POPLA Lead Adjudicator in 2015). PE has never replied to this point and does not do so now. It turned down my appeal, on grounds that I had never advanced, relating to signage.

3. If the PCN was issued under POFA then I contend that there is a defect which renders it non-compliant with section 9(2)(a) of POFA 2012 and as such liability cannot be transferred to me as the registered keeper. If, as PE now says, the PCN was not issued under POFA then their redress is only against the driver and I was not the driver.

Looks to cover the key points.

Have you checked it fits in the character limits? There used to be a 2,000 character limit for POPLA comments. I think it was increased to 10,000 at some point, although it's thankfully been a while since I've had to submit a POPLA appeal myself so not 100% sure.