Author Topic: Parkingeye no keeper liability (Read 4651 times)

NBSCMN · « **on:** December 01, 2024, 05:54:53 pm »

Hi, this is PCN is now going to POPLA but I just want to confirm before I send the application to them. Am I correct in saying that this notice does not comply with the requirements of the Protection of Freedoms Act 2012 (Schedule 4) ?

Driver overstayed.

Thanks

https://imgur.com/a/9TpoKFy

b789 · « **Reply #1 on:** December 01, 2024, 06:08:08 pm »

Unable to tell as what you've shown us the reminder. Only the original Notice to Keeper (NtK) is applicable and we'd need to review it. It is as rare as hens teeth that PE don't issue a (mostly) PoFA compliant NtK.

They usually fail to fully comply with PoFA 9(2)(e)(i) but you'd be hard pressed to convince a POPLA assessor unless you can get them to comprehend that the last three words in paragraph 9(2)(e) are required to make the NtK fully compliant with all the requirements of PoFA and that partial or even substantial compliance is not sufficient.

Without knowing what you original appeal to PE contained and their reason for rejecting is, it is difficult to provide further advice at this stage,

NBSCMN · « **Reply #2 on:** December 01, 2024, 06:25:45 pm »

Ah i missed that that was the reminder letter. I may have appealed based on the reminder letter but I need to have a look for the original. I have attached their reason for rejection in that link.

I will get back to you tomorrow with the original NtK

NBSCMN · « **Reply #3 on:** December 02, 2024, 02:12:54 pm »

ok i dont have the original letter. what would the next steps be ....

DWMB2 · « **Reply #4 on:** December 02, 2024, 02:15:53 pm »

Quote from: b789 on December 01, 2024, 06:08:08 pm

Without knowing what you original appeal to PE contained [...] it is difficult to provide further advice at this stage,

We could do with seeing what you put in your appeal in order to advise on next steps.

NBSCMN · « **Reply #5 on:** December 02, 2024, 02:16:58 pm »

see below

Dear,

I am writing to formally appeal Parking Charge Notice [PCN Reference Number], issued on [Date of Issue] for vehicle registration [Vehicle Registration Number].

This notice does not comply with the requirements of the Protection of Freedoms Act 2012 (Schedule 4). As it does not meet the conditions necessary for keeper liability, I, as the registered keeper, am not liable for this charge. I therefore request that you cancel this PCN.

If you choose not to cancel, please provide a POPLA code so I may escalate this matter for independent review.

Thank you for your attention to this matter.

b789 · « **Reply #6 on:** December 02, 2024, 03:24:02 pm »

SO, you need to convince a POPLA assessor that the Notice to Keeper (NtK) was not PoFA compliant. Technically, it wasn't because PE NtKs fail to comply with Paragraph 9(2)(e)(i) of PoFA.

However, convincing a POPLA assessor that it isn't compliant requires a lot of descriptive effort. We have yet to see one accept this argument, not because it is not a valid argument but because POPLA assessors conveniently ignore the point.

This is a point made in a very recent response to an operators evidence where they ignored the point raised about PoFA 9(2)(e)(i). It's adapted slightly here:

Quote

The operator has failed to comply FULLY with ALL the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), specifically paragraph 9(2)(e)(i). The operator has not adequately address this point, and their generic assertion that the Notice to Keeper (NtK) complies with PoFA is insufficient. It is essential for the POPLA assessor to consider this carefully, as partial or even substantial compliance with PoFA is not sufficient to establish Keeper liability.

The legal requirements of paragraph 9(2)(e) are clear. The NtK must:

“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” (as per subparagraph (i)).

It is a common error for POPLA assessors to overlook the importance of the last three words of paragraph 9(2)(e), which are "INVITE THE KEEPER", and fail to properly link them to the next requirement in subparagraph (i): "TO PAY THE UNPAID PARKING CHARGES". This distinction is vital, as the requirement to INVITE THE KEEPER is explicit in the legislation and cannot be ignored. POPLA assessors must carefully check whether the NtK explicitly fulfills this requirement, as otherwise they are failing in their duty to impartially assess the operator’s compliance with PoFA.

The operator’s NtK fails to explicitly INVITE THE KEEPER to pay the unpaid parking charges, as required by paragraph 9(2)(e)(i). Whilst the word "INVITE" itself does not have to be used, there must at least be a synonym or clear equivalent that serves to INVITE THE KEEPER. Simply inferring that the Keeper must be invited by the fact that the PCN is addressed to them does not satisfy the requirement of the Act. This omission constitutes a failure to comply with ALL the requirements of PoFA.

The law is clear that FULL compliance with PoFA is necessary for Keeper liability to apply. Partial or even substantial compliance does not suffice. Any failure to meet ALL the requirements renders the NtK non-compliant and prevents the operator from transferring liability from the driver to the Keeper. The operator’s assertion that their NtK is compliant with paragraph 9(2)(b) (which concerns the amount of the charge) does not address their failure to comply with paragraph 9(2)(e)(i). Compliance with SOME provisions of PoFA does not equate to compliance with the ENTIRETY of Schedule 4.

As the operator has failed to comply FULLY with PoFA, they cannot hold the Keeper liable for the alleged parking charge. The operator does not rebut this point, nor does it provide any explanation for their failure to INVITE THE KEEPER to pay the charge as required by paragraph 9(2)(e)(i).

The operator’s NtK is not FULLY compliant with PoFA because it fails to meet the requirements of paragraph 9(2)(e)(i). The operator cannot transfer liability to the Keeper unless they meet ALL the requirements of PoFA. Their failure to do so means that the Parking Charge Notice is unenforceable against the Keeper.

I don't know how more exhaustive you can be to make this point to a POPLA assessor.

H C Andersen · « **Reply #7 on:** December 02, 2024, 05:53:11 pm »

Back to contract law and PoFA.

Only the driver is liable, unless the creditor wishes to invoke keeper liability in which case they must comply with PoFA. This is common ground.

But what I feel has not been examined fully is the purpose of all the elements of a NTK i.e. in this case what are the conditions under para. 9?

Specifically, what is the significance and purpose of 'to invite the keeper'?

IMO, it's not loose phrasing or throwaway words, it's there for a purpose. It is the only phrase which brings the keeper into the scope of the NTK because only this invitation allows the keeper to take action(to pay) in a dispute which is otherwise only between the creditor and the driver. Received wisdom might be that the keeper could insinuate themselves into this process without such an invitation, but IMO there's nothing other than the invitation which makes this clear.

If the driver would like to pay, then this absolves the keeper of any liability, and
If the keeper would like to pay, this would absolve the driver of their liability.

NBSCMN · « **Reply #8 on:** December 18, 2024, 09:17:11 pm »

how does something like this sound? I was thinking of adding lack of land authority as welL?

I am writing in response to the operator's evidence regarding the above-referenced Parking Charge Notice (PCN). I wish to reaffirm my appeal on the basis that the Notice to Keeper (NtK) is non-compliant with the Protection of Freedoms Act 2012 (PoFA), specifically Schedule 4, Paragraph 9(2)(e)(i). As a result, keeper liability cannot be established.

While the operator asserts general compliance with PoFA, such assertions are insufficient. The law requires full compliance with all PoFA requirements for liability to transfer to the registered keeper. Partial or substantial compliance does not meet this threshold. In this case, the NtK falls short of the statutory standard.

Paragraph 9(2)(e) of PoFA specifies that the NtK must:
“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” (as per subparagraph (i)).

A critical requirement of this provision is the explicit need to "invite the keeper to pay the unpaid parking charges." This is not optional; it is a clear legislative directive. While the use of the word "invite" is not mandatory, the NtK must include equivalent language that conveys an unmistakable invitation to pay. Merely informing the keeper of the charge or providing payment methods does not satisfy this requirement.

In this instance, the operator’s NtK fails to explicitly invite me, as the keeper, to pay the charges. Instead, it merely provides information about the charge. This omission is a direct breach of Paragraph 9(2)(e)(i) and renders the NtK non-compliant.

The operator may point to compliance with other parts of PoFA, such as Paragraph 9(2)(b) regarding the specified amount of the charge. However, compliance with certain sections does not excuse non-compliance with others. Full adherence to all relevant provisions is required to establish keeper liability. The operator’s failure to address this fundamental non-compliance undermines their claim of PoFA adherence.

As the NtK does not meet the statutory requirements of PoFA, the operator cannot lawfully establish keeper liability. Consequently, this PCN is unenforceable against me as the registered keeper.

I respectfully urge the POPLA assessor to carefully review this specific point of non-compliance. The explicit invitation to pay is not a trivial detail but a crucial legal requirement. Overlooking this omission would result in an incorrect assessment of the operator’s adherence to PoFA.

For these reasons, I kindly request that my appeal be upheld and the PCN cancelled.

b789 · « **Reply #9 on:** December 18, 2024, 10:12:01 pm »

That's very good. However, you are stating that you are responding to the operators evidence pack, which means that you have made the appeal to POPLA and you are now responding to their response to your appeal.

Unless you introduced the contract validity argument in your appeal, you cannot introduce new arguments in response to the operators response pack. All you can do is highlight where they have failed to answer or rebut your arguments.

If this is the original appeal to POPLA, then of course you introduce everything you can. The contractual tight flowing from the landowner argument is always used.

This is the landowner element of the POPLA appeal:

Quote

No evidence of landholder authority

The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator. It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.

There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

The operator is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the “relevant land” then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules.

A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to suﬃciently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply.

Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and, of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement). Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

(a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
(b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
(c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
(d) who has the responsibility for putting up and maintaining signs
(e) the definition of the services provided by each party to the agreement

H C Andersen · « **Reply #10 on:** December 19, 2024, 12:20:37 pm »

@bp789, with respect I take a different view on this.

Unless you introduced the contract validity argument in your appeal, you cannot introduce new arguments in response to the operators response pack. All you can do is highlight where they have failed to answer or rebut your arguments.

At the time of parking the driver cannot know that the operator has the required landowner authority other than their assertion in a sign, if included. Similarly, a keeper cannot know because they're one stage further removed from the events.

IMO, it is the creditor's burden to prove to the assessor that they have such authority (as they would be obliged to do in court) not the keeper's to assert(without any proof) that they do not*. IMO, a keeper does not - and IMO should not without proof- need to assert this in their primary grounds of appeal which should focus on facts as known to them, but they may and should check the creditor's evidence for this proof.

On matters of PoFA and compliance with the BPA CoP, the assessor should check the creditor's proof and not pass the burden to the keeper. They're supposed to be the professionals.

In this way, keepers can present their claim under separate headings:

As regards the parking charge

As regards the keeper's prospective liability**

*- otherwise every POPLA appeal invites the standard paras:

The creditor is put to strict proof.....
A
B
C

**- and it's only prospective because that's the law: 'the keeper is invited to pay', not you are required to pay, but invited. And if you don't and we cannot pursue the driver then we reserve the right under para. 4 of Schedule 4 to PoFA to '..to claim unpaid parking charges from keeper of vehicle'.

OP, we should see the creditor's evidence pl.

DWMB2 · « **Reply #11 on:** December 19, 2024, 12:39:20 pm »

Quote from: H C Andersen on December 19, 2024, 12:20:37 pm

IMO, it is the creditor's burden to prove to the assessor that they have such authority (as they would be obliged to do in court) not the keeper's to assert(without any proof) that they do not*. IMO, a keeper does not - and IMO should not without proof- need to assert this in their primary grounds of appeal which should focus on facts as known to them, but they may and should check the creditor's evidence for this proof.

Whilst this is true in theory, in practice a POPLA assessor will often not consider something if it is not presented as a ground in the appeal, regardless of what should happen, or where the burden of proof may rest.

The suggested template does not assert without proof that the parking operator has no authority. It says, accurately, that no evidence has yet been provided of this, which, at the time of submitting the POPLA appeal, is true. If the operator does have such evidence, they can present it.

Quote from: H C Andersen on December 19, 2024, 12:20:37 pm

On matters of PoFA and compliance with the BPA CoP, the assessor should check the creditor's proof and not pass the burden to the keeper. They're supposed to be the professionals.

If only.

H C Andersen · « **Reply #12 on:** December 19, 2024, 07:05:07 pm »

However, the point at issue is whether the keeper may introduce the issue of landowner authority within the context of commenting on the creditor's evidence.

IMO, this must be yes.

The alternative is to have every keeper asserting without any knowledge of the matter whatsoever that the creditor doesn't and putting them to 'strict proof' etc. etc. just to put a marker down to allow them to comment later.

Farce doesn't come near describing such a process.

But this is considering matters in general and not the OP's case in particular.

OP, the creditor's evidence please.

From which might come.....

I note from the creditor's submission in this case that they have not adduced evidence in support of their legal right to demand a parking charge from the driver and therefore the assessor cannot be convinced on this point which is a mandatory precondition for issuing PCNs. It therefore follows that as there is no liability which falls to the driver there cannot be any which, by default, could fall to the keeper. There is therefore no case to answer etc....

b789 · « **Reply #13 on:** December 19, 2024, 08:17:55 pm »

And in that case, as we all know, the POPLA assessor will just state that the appellant attempted to introduce further points which cannot be considered... blah, blah, blah. POPLA is not a judicial process, no matter how haughty the assessor may want to sound.

You could try and argue the point but it will be a fruitless exercise. We already know that when an assessor has blatantly ignored PoFA requirements and rejected an appeal, after complaining about it, POPLA will just say sorry but nothing we can do about it now. "We'll give our assessors extra training."

At least if the question of landowner authority is introduced in the initial appeal, they have to provide the evidence. Actually, they don't in POPLAs eyes, They only have to produce a statement to the fact that they have a valid contract and they will then go on to say that if the landowner allows them to have signs in place then surely they must have a valid contract.

Just more reasons to get rid of them all and have the 2019 legislation fully enacted with a real independent appeals service.

NBSCMN · « **Reply #14 on:** January 06, 2025, 11:41:48 am »

Hi all

Please see ParkingEye's response.

https://imgur.com/a/YZ8pwAd

My original appeal regarding no keeper liability i dont think it stands as it seems ok from the first ntk?

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Author Topic: Parkingeye no keeper liability (Read 4651 times)

NBSCMN

Parkingeye no keeper liability

b789

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NBSCMN

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NBSCMN

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DWMB2

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b789

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H C Andersen

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b789

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