It's a too short and needs fleshing out. You should state that you are appealing as the keeper and there is no legal obligation for the keeper to identify the driver and you decline to do so.
List the following points which will be raised in your appeal and then expand on each one individually:
1. The NtK does not fully comply with the strict requirements 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 may have been potentially liable for the charge.
3. The Images of the vehicle contained within the NTK are not compliant with the BPA Code of Practice (CoP).
4. Inadequate signage leading to failure to adhere to PoFA and breach of the BPA CoP.
5. The Notice to Keeper (NtK) has an inaccurate statement of fact.
6. No evidence of landholder authority.
1. The NtK does not fully comply with the strict requirements of the Protection of Freedoms Act 2012 (PoFA).The operator claims in the NtK that it is relying on PoFA Schedule 4, paragraph 9. The NtK fails to fully comply with the strict requirements of PoFA as it does not include an invitation (nor any synonym of the word) for the keeper to pay the charge. The wording required under PoFA 9(2)(e)(i) states that the NtK
MUST invite the keeper to pay the charge or to inform the operator of the driver's details.
This crucial element is missing from the NtK provided by the operator. Partial or even substantial compliance with PoFA is not sufficient.
Full compliance is required if the operator intends to hold the keeper liable for the charge.
This was pointed out to the operator in the original appeal but was completely ignored in their response. I cannot be held liable as the keeper because the NtK failed to comply fully with the requirements of PoFA.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.In this case with a keeper appellant, yet no PoFA "keeper liability" to rely upon due to the above mentioned failures, the POPLA Assessor must first consider whether they are confident that they know who the driver is, based on the evidence received. No presumption or inference 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.bThere 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.
In this case, as explained due to the failure of the operator to fully comply with the strict requirements of PoFA, no other party apart from an evidenced driver can be told to pay. 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 keeper
without a valid NtK.
As the keeper 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 fully complying with PoFA Schedule 4 as pointed out above. This applies regardless of when the first appeal was made and regardless of whether a purported 'NtK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of PoFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
3. The Images of the vehicle contained within the NTK are not compliant with the BPA Code of Practice (CoP).The British Parking Association (BPA) Code of Practice Section 21.5a states that when issuing a parking charge notice the operator may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which the operator claims 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 images of the vehicle contained within the NtK do not comply with the requirements of the BPA CoP section 21.5a as they have been digitally altered and cropped from those in the case file. POPLA assessor Gayle Stanton in POPLA appeal case 2413353469 wrote:
"The Images of the vehicle contained within the NTK are not compliant with the BPA. The appellant has stated in the comments that although the operator has provided full date stamped photographs in the case file, the images on the NTK are not compliant. I acknowledge the appellant’s grounds of appeal and I have reviewed the evidence provided by the operator. The British Parking Association (BPA) Code of Practice Section 21.5a states: "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.
I have reviewed the copy of the NtK provided by the operator and I am not satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice. These images are not date stamped and after seeing the full images in the case file they appear to have been digitally altered or cropped to fit on the NTK. This is especially apparent on the colour image on the NTK.
The image recorded of the vehicle entering the site is also not very clear I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal."
As can be evidenced, the image in the NtK has been digitally altered or cropped from the case file images. Therefore the operator has breached the BPA CoP and the PCN cannot have been issued correctly. The assessor is invited to draw the same conclusion as their colleague, Gayle Stanton in POPLA appeal 2413353469.
4. Inadequate signage leading to failure to adhere to PoFA and breach of the BPA CoP.Section 19.4 of the BPA CoP states "If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give 'adequate notice'. This includes:
- specifying the sum payable for unauthorised parking
- adequately bringing the charges to the attention of drivers, and
- following any applicable government signage regulations."
The signs at this location fail to prominently give adequate notice of the specified sum payable. Considering that this operator often relies on the Supreme Court appeal decision in the Beavis case, the signage at this location fails miserably when compared to the signage in that case which clearly showed the charge prominently. It should be noted that within PoFA it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given "adequate notice" of the charge.
PoFA defines "adequate notice" as follows:
2(2) The reference in the definition of "parking charge" to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).
2(3) For the purposes of sub-paragraph (2) ‘adequate notice’ means notice given by:
(a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or
(b) where no such requirements apply, the display of one or more notices
which:
(i) specify the sum as the charge for unauthorised parking; and
(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
Even in circumstances where PoFA does not apply, I believe this to be a reasonable standard to use when making an independent assessment of the signage in place at the location. The minuscule font used in the signs at this location fail, miserably, to provide adequate notice of any charges.
Considering the signage in place at this particular site against the requirements of Section 19 of the BPA Code of Practice and PoFA, it is beyond any doubt that the signage is not sufficient to give adequate notice of the charge and bring the parking charge to the attention of the motorist.
5. The Notice to Keeper (NtK) has an inaccurate statement of fact.Receipt as Proof of Payment: The NtK states that the driver failed to make a valid payment. However, the driver has a receipt that confirms the payment was made at the location in question. This receipt serves as proof that the payment was valid and therefore the statement in the NtK is false or deliberately mendacious.
This is a breach of the BPA CoP sections 2.6 and 9.1. Section 2.6 states that by creating the Code the parking industry has set out the minimum standards by which the operator will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that the operator will keep to the law and act in a professional, reasonable and diligent way. By alleging in the NtK that the driver has failed to make a valid payment when the operator has been provided evidence to show that is not the case, is a prime example of the operator not acting in a professional, reasonable and diligent way.
Section 9.1 states that the Code is based on the understanding that operators and drivers should deal with each other in a respectful way. This means that as a member of the AOS, the operator must maintain a professional standard of behaviour in carrying out their operational duties. This includes making sure that you deal with drivers and other members of the public in a professional way, avoiding using aggressive or threatening language.
The operator must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non-compliance and may go to the Professional Conduct Scrutiny Panel.
As the operator has made an allegation which has been shown not to be true, they have acted unprofessionally and in breach of the BPA CoP. As the CoP has been breached, the PCN cannot have been issued correctly.
6. 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 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.
