As expected Horizon have come back with a letter rejecting the appeal:
https://imgur.com/a/SCJjYmPSo 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
