Hi Folks,
Normally driver is careful but genuinely did not see the signs.
I am going to have a look at POFA to see what needs to go on the Notice to Keeper but just thought I'd ask if anyone has ever heard of these lovely people first?
Served in time so I guess it's off to POPLA?
Many Thanks
C
[ Guests cannot view attachments ]
Other side
[ Guests cannot view attachments ]
Are you easily able to get to the location? If so, you should seek to take photos of the signage at the site. From Google Maps, the entrance sign in particular isn't particularly conspicuous, and appears to be angled such that you might not see it if turning in from the left.
Photos showing the route the driver took into the site, around where they subsequently parked, and any other signage would be useful. Close ups showing the T&Cs too.
The Notice to Keeper (NtK) is almost fully compliant with PoFA. However, just like pregnancy, you cannot be mostly, you either are or you aren't. In this case the NtK is not compliant with PoFA 9(2)(e)(i) as there is no invitation for the Keeper to pay the charge. It only says that the driver must pay the charge and if the Keeper was not the driver, to give them the drivers details (no legal obligation to do so) and to pass the notice to the driver.
All they had to do to comply with this paragraph of PoFA is to ad a sentence that states: "You are now invited to pay the charge." They haven't.
This will of course be rejected and most likely POPLA will assign an assessor who does not have the intellectual capability of comprehending that point. It doesn't really matter as a POPLA rejection is not binding and has no bearing on anything moving forward.
As the NtK is not compliant with all the requirements of PoFA, this means that if the
unknown driver is not identified, they cannot transfer liability for the charge from the
unknown driver to the
known keeper.
Use the following as your appeal. No need to embellish or remove anything from it:
I am the keeper of the vehicle and I dispute your 'parking charge'. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.
As your Notice to Keeper (NtK) does not fully comply with ALL the requirements of PoFA 2012, you are unable to hold the keeper of the vehicle liable for the charge. Partial or even substantial compliance is not sufficient. There will be no admission as to who was driving and no inference or assumptions can be drawn. VARS has relied on contract law allegations of breach against the driver only.
The registered keeper cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtK can only hold the driver liable. VARS have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
Are you easily able to get to the location? If so, you should seek to take photos of the signage at the site. From Google Maps, the entrance sign in particular isn't particularly conspicuous, and appears to be angled such that you might not see it if turning in from the left.
Photos showing the route the driver took into the site, around where they subsequently parked, and any other signage would be useful. Close ups showing the T&Cs too.
Interesting you should say that. As it happens I was in the vicinity only this morning. You are quite right too. The entrance sign is a laughing stock. It's right on the bend so you'd have to stop and block the road to even have a chance to read it. The driver would have had no chance to read it. (see image). Attached is also an image of where I believe the driver parked. Again, nothing in sight.
They do however have a small sign attached to each end of the building but none of which you would walk past when entering and exiting the shop, (also attached). I fancy some sport with them so lets see what they do next.
[ Guests cannot view attachments ]
I have two more images. I will try to upload them for all.
[ Guests cannot view attachments ]
I sent an email today with the exact wording of the reply kindly offered by Hero.
Ok we have a reply. Shall I post an appeal for critique? Not sure what B789 might have up their sleeve but I'd be willing to go all the way with this one, no question.
[ Guests cannot view attachments ]
2nd page
[ Guests cannot view attachments ]
So you can now appeal to POPLA. Your opening point in your POPLA appeal (only as the Keeper of the vehicle) should be:
1. No Keeper Liability – NtK Fails to Comply with PoFA Schedule 4, Paragraph 9(2)(e)(i)
The Notice to Keeper (NtK) issued by the operator fails to meet the strict requirements set out in the Protection of Freedoms Act 2012 (PoFA), Schedule 4, Paragraph 9(2)(e)(i).
That clause specifically requires that the NtK must “invite the keeper – (i) to pay the unpaid parking charges.” This wording is not optional; it is mandatory.
This NtK does not include an invitation for the Keeper to pay. Instead, it uses imperative and declarative language such as: “The parking charge remains unpaid and must be paid.”
That phrasing amounts to a demand, not an invitation. The law deliberately distinguishes between an invitation to pay (which the Keeper is free to decline) and a demand for payment (which implies an obligation). PoFA 9(2)(e)(i) requires the former, not the latter.
There is no wording in this NtK—anywhere—that “invites” the Keeper to pay the charge. Nor is there any language that could reasonably serve as a synonym for “invite” in this context.
Therefore, PoFA 9(2)(e)(i) has not been satisfied.
It is irrelevant whether the rest of 9(2)(e) is present—each sub-paragraph must be satisfied in full. The Act does not say “substantially complied with”; it uses the word “MUST”, and that creates a strict liability threshold.
Because sub-paragraph (i) is not satisfied, the NtK is not compliant with Schedule 4 of PoFA and keeper liability cannot apply.
You can then throw in anything about signage and put them to strict proof that they hold a valid contract flowing from the landowner that permits them to issue PCNs etc. Etc.
Result. Thanks so much for your input
Successful
Assessor Name
Alexandra Roby
Assessor summary of operator case
The operator’s case is that the motorist exceeded the 45-minute maximum stay time.
Assessor summary of your case
For the purpose of my report I have summarised the appellant’s grounds into the following points, and have checked each point before coming to my conclusion. The appellant has stated that: • The notice to keeper does not comply with the Protection of Freedoms Act 2012. • The signage is inadequate. • They would like to see whether the operator has the landowner’s permission to issue parking charge notices on the land. Specifically, they would like to see the contract. • They would like to see a copy of the operator’s KADOE contract. • It is a clear abuse of the system. To support their appeal, the appellant has provided a photograph of spar and a photograph of the entrance signage. This evidence has been considered in making my determination.
Assessor supporting rational for decision
I am allowing this appeal with my reasoning below: The operator has issued the Parking Charge Notice (PCN) as the motorist parked in excess of the 45-minute maximum stay time. Within their appeal, the appellant has disputed the adequacy of the signage at the site. They have provided a photograph of the entrance sign and questioned how the motorist was supposed to read it from the moving vehicle. The appellant has also provided a photograph to demonstrate where they parked, and explained that the only signs are located on the edges of the building. Regarding signage, section 19 of the applicable British Parking Association Code of Practice states that parking operators needs to have signs that clearly set out the terms of parking. Section 19.3 specifically states that signs must be easy to see, read and understand. In response to the appellant’s appeal, the operator has provided photographs of the signage at the site, along with a site map demonstrating the distribution throughout. Having reviewed the evidence provided by both parties, I can see that there aren’t any signs located where the appellant claims to have parked, but on the sides of the building away from the central spaces. While I accept that the motorist would need to have passed the entrance sign, this is located on a bend and I do not consider it reasonable to expect a motorist to read this whilst trying to navigate a bend. Further, I can see that the site operates a one-way system, and although I accept that other signs would have been visible on the exit road, the parking contract is formed on entry to the site.
Overall, I cannot be satisfied that the operator has demonstrated that the motorist would have been presented with a reasonable opportunity to review the terms and conditions before deciding whether to park. As such, I cannot conclude that the PCN was correctly issued. Although I acknowledge the appellant’s other grounds of appeal, addressing them will not have any bearing on my decision. Accordingly, the appeal is allowed.
I basically appealed stating that. Driver drove in (past the impossible to read whilst driving sign) and parked up right in the middle space where there were no signs whatsoever visible.
Also demonstrated that the driver "could have" walked into the shop then back to the vehicle whilst never passing a sign (save from the one impossible to read from a moving vehicle on entry). This is 100% possible as the door to the shop is middle left of the building and the sign is on the very far left hand side - so isn't clearly visible unless the driver has a crazy reason to walk right past the entrance door to the shop to examine what might be there.
Winner x 1
View List