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Hi,
Could I get your opinion on the following appeal I plan to send to POPLA for a PCN appeal rejected by Pakingeye.

I am lessee of the vehicle and the driver has not been identified at any point.

I’m wondering if points 3 & 4 are strong enough to include or should be removed?

The initial appeal made to ParkingEye was on the grinds of PoFA 12 -4 not providing hirer documentation and that the hirer cannot be presumed or inferred to have been the driver as suggesting on other threads here on the forum.

Thanks in advance for your help


POPLA Reference: ######
ParkingEye PCN: #####
Vehicle Registration: #######
Operator: ParkingEye Ltd
Location: ASDA Bexleyheath
Appellant Status: Hirer / Lessee of the vehicle


POPLA Adjudicator,

I am the hirer/lessee of the above vehicle. I was not the driver at the time of the alleged event and I have not named the driver.

ParkingEye is attempting to transfer liability to me without meeting the strict statutory requirements of the Protection of Freedoms Act 2012 (POFA), Schedule 4, which governs private parking charges.

This appeal is made on the following grounds, any one of which is sufficient on its own for POPLA to allow the appeal:

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) Inadequate evidence of breach of parking terms.  ANPR only demonstrates entry and exit time

4) No proof that signage is prominent and legible at the location in which the vehicle was parked.

5) No evidence of Landowner Authority - the operator is put to strict proof of full
compliance with the BPA Code of Practice


GROUND 1: FAILURE TO COMPLY WITH POFA 2012 – NO HIRER LIABILITY

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;”

GROUND 2: NO EVIDENCE OF DRIVER LIABILITY

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.''

GROUND 3: INADEQUATE EVIDENCE OF A BREACH OF PARKING TERMS

ParkingEye alleges that the vehicle exceeded a 3-hour maximum stay.

However:
   •   ANPR records only entry and exit times, not actual parking time
   •   No allowance has been made for grace periods required by the BPA Code of Practice (Sections 13.1 & 13.2)
   •   The operator has not demonstrated when the vehicle was parked, only when it passed cameras

ParkingEye has therefore failed to prove that the vehicle was parked in breach of any contractual term.


GROUND 4: SIGNAGE NOT PROVEN TO BE PROMINENT OR LEGIBLE

ParkingEye has not provided evidence that:
   •   The signage was clearly visible upon entry
   •   The terms were prominent, legible, and capable of forming a contract
   •   The maximum stay and charge were adequately brought to the attention of the driver

Generic signage photographs are insufficient. ParkingEye must prove the signage as it appeared on the material date, at the vehicle’s location, from a driver’s perspective.


GROUND 5: NO EVIDENCE OF LANDOWNER AUTHORITY

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



In summary, I respectfully request that POPLA uphold my appeal and cancel the Parking Charge Notice on the grounds raised:

1. Non-compliance with PoFA 2012
2. No evidence the appellant is the driver
3. Inconclusive evidence of contractual breach
4. Unable to demonstrate adequate signage in location of vehicle
5. Lack of landowner authority

Given the Operator’s failure to comply with legal requirements and BPA guidelines, I request that this appeal be upheld, and the Parking Charge Notice be cancelled.

Your draft is doing far too much work for POPLA. You are dealing with an assessor who is likely intellectually malnourished and you risk overwhelming the poor dears and forcing them to stick their fingers in their ears and shout "blah, blah, blah, and then just pasting a block of irrelevant waffle from their stock responses.

I would advise a clear, single issue appeal that leads the assessor by the nose to the intimate conclusion, that the PCN has not been issued correctly. Unless they can prove that the Hirer was driving (which they can't), then anything else is irrelevant. So, I suggest the following as the body of your appeal as Hirer:

When an appeal comes to POPLA the burden of proof begins with the parking operator to evidence that the Parking Charge Notice has been issued correctly. In this case the operator cannot discharge that burden because the appellant is the Hirer/Lessee, was not the driver, and has not identified the driver. POPLA’s first task is therefore not to weigh signage, ANPR timestamps, or any alleged breach, but to determine whether the operator has any lawful basis to pursue the Hirer at all.

A Hirer is not automatically liable for a parking charge. The only two routes open to the operator are (a) prove, on evidence, that the appellant was the driver, or (b) transfer liability from the unknown driver to the known Hirer by complying fully with Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), specifically the hire vehicle provisions at paragraphs 13 and 14. There is no legal presumption that a Hirer was the driver and there is no legal obligation on a Hirer to identify the driver to an unregulated private parking operator. A refusal to name the driver cannot be treated as evidence of driving and cannot create liability where the law does not.

Accordingly, the burden of proof remains on the operator. If the operator wishes to pursue the Hirer, it must demonstrate strict statutory compliance with PoFA. PoFA is not guidance. It is a statute that creates a limited right to recover a driver’s alleged parking charge from a different person, but only where the operator has met every condition set by Parliament. If any condition is missed, the right does not arise and liability cannot transfer.

The critical requirement for a hire vehicle is set out in paragraph 14(2)(a). It provides that the creditor may only recover unpaid parking charges from the Hirer where, within the relevant period, the creditor has given the Hirer a notice in accordance with paragraph 14(5) (“Notice to Hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the Notice to Keeper. The wording “together with” is mandatory. It means the Notice to Hirer must be served accompanied by the specified documents and the Notice to Keeper. Without those enclosures, the operator has not invoked PoFA and cannot transfer liability.

Paragraph 13(2) specifies the documents that must be provided. These are a statement signed by or on behalf of the hire firm confirming the vehicle was hired to a named person at the material time, a copy of the hire agreement, and a copy of the statement of liability signed by the hirer under that hire agreement. Those documents are not optional “supporting material”. They are the statutory mechanism by which the operator proves that the recipient is the hirer and that the statutory preconditions for transfer can lawfully be met.

In this case the operator did not provide the required paragraph 13(2) documents with the Notice to Hirer and did not provide a copy of the Notice to Keeper “together with” the Notice to Hirer as paragraph 14(2)(a) requires. That failure is fatal. It means the operator has not complied with PoFA and therefore has no legal right to recover the charge from the Hirer.

Once PoFA compliance fails, the operator is left only with driver liability. But the appellant has stated they were not the driver and declines to identify the driver. POPLA cannot infer, assume, or speculate that the Hirer was driving. In the absence of evidence identifying the driver, the operator cannot show that the person being pursued is the person who could be liable. The burden of proof is on the operator and it cannot be satisfied by assertion, probability, or “reasonable belief”.

This is therefore a straightforward appeal that turns entirely on liability. The operator has failed to establish Hirer liability because it has not complied with PoFA paragraph 14(2)(a) and paragraph 13(2). The operator has also failed to establish driver liability because it has produced no evidence that the appellant was the driver and POPLA cannot presume that fact. The Parking Charge Notice has not been issued correctly against this appellant and the appeal must be allowed.

You'll get an email from POPLA advising when the parking company have submitted their evidence (if they don't simply admit defeat and withdraw). If they do submit evidence, show us and we can advise on a response.

Bump for any input on my proposed response before the POPLA 7 day deadline

Is the best way to post all the evidence pack as 45 separate images ?

Thanks