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Driver parked in car park for a period of ~2 hours 40 mins (according to PCN, which is probably accurate). Car park has a free stay period of 2 hours (no ticket etc required for the free stay period). Payment is available to increase upto a maximum stay of 3 hours. Driver forgot to topup payment for the extra time.

I, as the registered keeper of the vehicle recieved the PCN ~1 week after the event. I've attached a copy of the PCN (with, I beleive all PII redacted).

Can anything be done to fight this?

Car park location: https://maps.app.goo.gl/2sWARciSB6t1oTkw5

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As long as you lead the POPLA assessor by the nose to the PoFA failure, you should (depending on whether the tea-boy is doing the assessments that day) be successful.

Are you able to provide some recent POPLA case references where this approach has worked with ParkingEye charges?

In my previous experience, POPLA assessors were usually less amenable to finding in favour of appellants on PoFA failures of the nature of the one suggested. If they're becoming more amenable to them, then it's worth us collating some examples.

In my previous experience, POPLA assessors were usually less amenable to finding in favour of appellants on PoFA failures of the nature of the one suggested. If they're becoming more amenable to them, then it's worth us collating some examples.

I don't have any to hand at the moment but it must be included in a POPLA appeal as they are obliged to take it into account. It is a breach of the strict requirements of PoFA and therefore also a breach of the BPA CoP 2.4, 21.2, 21.13, 22.6 and 24.3. It is incumbent on the appellant to highlight these breaches to POPLA. The assessor has to show that the operator has strictly complied with PoFA and the BPA CoP.

Sadly, not enough appellants focus this PoFA and, therefore, BPA CoP failure to the attention of the assessor. If it is not rebutted, a complaint to POOPLA should be made, if only to get them to retrain their assessors in understanding the strict requirements of fully complying wth PoFA and the BPA CoP.

At the end of the day, a judge would be able to understand it if it is explained thoroughly.

Quote from: thingie2 on May 17, 2024, 02:51:10 pm

Plan A is a non starter unfortunatly. The car park isn't exclusively for ASDA customers (it's just where it is), and was in use to visit other locations nearby.

For Plan B and/or C, is there any template as to what should be stated to the appeal (although from what I've read, these are generally automated to say no anyway, so does it matter?) From a quick look at PoFA 9(2)(e)(i) that you mentioned, is this not covered by the first paragraph under the "Protection of Freedoms Act" section on the rear, or is this not worded correctly to comply?

You should still try Plan A. If the car park is not exclusively for Asda then find out who the landowner/managing agent is for the car park. If there are multiple businesses at the location, there may be a plinth that has all the names of the stores. Often, on that plinth there will be the name of the managing agent.

I'll take a look & see.

Regarding PoFA 9(2)(e)(i), have a read of it yourself and show me where, on the NtK you have shown us that there is any invitation for the keeper to pay the charge.

Quote

A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. The notice 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.

Ah, that's the bit I was missing I think.  I agree, it doesn't seem to offer the keeper to pay, rather than declare the driver.

In a POPLA appeal, you need to lead the assessor through your points. List your points and then go through each one in as much detail as possible, highlighting words as necessary to make your point. For example, in the point about the NtK not fully complying with all the requirements of PoFA, emphasise that 9(2)(e)(i) is not fullfiled because there is no invitation, nor any synonym of the word.

If you’re highlighting BPA CoP failures, highlight each one, quoting from the CoP.

How's this as a more comprehensive appeal to submit?

The Notice to Keeper (attached copy for reference) does not comply with the Protection of Freedoms Act 2012. Specifically, in PoFA 2012, Schedule 4, item 9(2)(e)(i), 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".
The NtK does not fulfil the requirements of 9(2)(e)(i) as there is no invitation (or synonym thereof) to pay the unpaid parking charges as the registered keeper. There is only the invitation to pay as the driver, or nominate someone else as the driver.

In additon, the NtK does not comply with the British Parking Association Code of Practice, e.g. items 2.4, 21.2, 21.13, 22.6 & 24.3.

BPA CoP item 2.4 states that all AOS  member should be aware of their legal obligations, include the PoFA 2012 Schedule 4, which is shown above that ParkingEye do not comply with.

BPA CoP item 21.2 states that as long as the strict conditions of Schedule 4 of the PoFA 2012 are met, unpaid parking charges can be reclaimed from the keeper, rather than the driver of the vehicle. As shown above, Schedule 4 of the PoFA 2012 aren't met and therefore there is no right to reclaim the unpaid parking charge from myself, as the registered keeper of the vehicle.

BPA CoP item 21.13 states "You should see the relevant part of Schedule 4 of POFA 2012 to make sure you know:
• what contents you need to include in the Notice to
Keeper (paragraph 8(2) or 9(2))" As shown above, Schedule 4 of the PoFA 2012 is not met.

BPA CoP item 22.6 states "If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict
requirements and timetable set out in the Schedule (in particular paragraph 9)." As shown above, Schedule 4 of the PoFA 2012 is not met.

BPA CoP item 24.3 states "Under POFA 2012, you can gain the right to recover unpaid charges from keepers only if particular conditions have been met. Once the conditions are met you may use your right to recover, after the end of the period of 28 days beginning with the day on which the Notice to Keeper was given. You should read paragraph 4 of Schedule 4 of POFA 2012 to understand what these conditions are" As shown above, Schedule 4 of the PoFA 2012 is not met, and therefore there is no right to recover unpaid charges from the myself, as the registered keeper.

As shown above, there are multiple requirements in both the BPA CoP & PoFA 2012 that ParkingEye have not complied with & therefore the NtK is invalid & they have no right to reclaim any unpaid parking charges from myself, as the registered keeper.

No need to include copies of PoFA or BPA CoP. No need to include copy of PCN either.

Are you going to include any mention of lack of landowner authority? Require them to provide an unredacted copy of a contract flowing from the landowner to the operator allowing them to issue PCNs in their own name. Tell the assessor that a copy of a signed statement saying that there is a contract in place is not sufficient.

There's nothing to indicate it, but by requesting it in your POPLA appeal, it will highlight if one isn't in place. Always worth a go, in case they don't produce one.

I'm concerned if I request the information from ParkingEye, they won't respond quick enough.

If you request it from ParkingEye, they won't provide it at all, as they aren't required to share their contract with members of the public. They are required to prove to POPLA they have one though, if it's raised in the appeal.