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#Post#: 31854--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: b789
Date: August 1, 2024, 10:00 am
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Point #2 is because the appellant is a company AND because the
NtK is not PoFA compliant, the keeper (whether a company or an
individual) cannot be liable.
Also, try emphasising the point about no “invitation” for the
keeper to lay the charge. Highlight the word “invitation” and
explain that there is not even any synonym of that word that
complies with the requirements of PoFA 9(2)(e)(i).
Imagine you are trying to explain this to a 12 year old.
#Post#: 31868--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: bdu7
Date: August 1, 2024, 11:09 am
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Fantastic, thank you!
I shall submit it and update you further in due course!
#Post#: 32397--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: bdu7
Date: August 6, 2024, 5:42 am
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We have received a reply from POPLA with information from
ParkingEye regarding this appeal and have been given the
opportunity to respond.
From reading the letter, this seems like a stock response as it
hasn't really made reference to the points raised in our appeal,
in particular the invitation to keeper. Furthermore, there is
reference to the amount being a 'pre estimation of loss' which I
understand is relevant, but again, not one of the points I have
argued at this time.
We have seven days to comment, and would be very grateful for
any further advice.
Thanks again!
Link to letter
HTML https://www.dropbox.com/scl/fi/f5vd1k4ew9wxachvtmh8t/POPLA-Appeal-Response-Redacted.pdf?rlkey=efeyrx8fk6zlc1kxnafgn4wzg&dl=0
#Post#: 32406--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: DWMB2
Date: August 6, 2024, 6:44 am
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As a general rule, your approach to the comments stage of POPLA
is to draw attention to any of your appeal points that
ParkingEye have failed to address, or any bits of their evidence
that are shoddy, undermine their arguments, and/or support yours
- you can suggest that as they have not disputed these points,
it can be assumed that they accept them. So, if they have not
addressed your point around PoFA for example in any of their 31
pages of evidence, point this out.
I've only had time for a quick skim, but the agreement they have
shared is valid for an initial term of 3 years and will be
automatically rolled over unless either party terminates the
agreement subject to clause 8, which covers termination.
However, for reasons unknown, they have redacted all of clause
8. How can we be satisfied that the agreement is still in place,
if they have not shown us the clause that covers termination,
and the date of the parking event was after the initial term?
#Post#: 32411--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: b789
Date: August 6, 2024, 7:07 am
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In your POPLA appeal, did you dispute landowner authority? Did
you state the following in the appeal:
--- Quote ---
> 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:
>
> [indent]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:
>
> [indent](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[/indent][/indent]
--- End Quote ---
Besides the fact that they reference the BPA CoP v8 (2020) which
was superseded by v9 (20240, have they complied with all the
queries pointed out above, assuming you included that in the
POPLA appeal?
As pointed out by [member=103]DWMB2[/member], the initial term
of the contract was for 3 years, subject to a redacted clause 8.
Point out that the operator has not rebutted the point that the
NtK is not fully compliant with all the requirements of PoFA
9(2)(e)(i). Make sure you state that there is no "invitation"
nor any synonym of the word, for the keeper to pay the charge.
Point out that partial or even substantial compliance is not
sufficient. Because of the failure to fully comply with all the
requirements, they cannot rely on PoFA to hold the keeper
liable.
Also point out that because they have failed to fully comply
with PoFA, as the registered keeper you cannot be liable and the
operator has not proved that the person they are pursuing is the
driver.
#Post#: 40690--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: bdu7
Date: October 14, 2024, 9:44 am
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Good afternoon all,
Finally received a response from POPLA and they have stated the
appeal was unsuccessful. The following information was provided;
The appellant has raised the following points from their grounds
of appeal: • The Notice to Keeper (NTK) does not comply with
PoFA. • The operator has not shown the person they are pursuing
is the driver. • The signage is deficient and there are no
ground markings to delineate the different car parks which have
different terms. • The signs are contradictory by advising of a
1 hour max stay. • There is no evidence of landowner authority.
• The operator has breached the joint single Code of Practice.
The appellant has expanded on their grounds of appeal after
reviewing the operators evidence pack and states they operator
has not responded to points 1 and 2 and the notice does not
comply with PoFA and the operator cannot demonstrate who was
driving. The LOA only runs for 3 years and rolls over subject to
clause 8, but as clause 8 is redacted no proper oversight can be
seen. The appellant has provided the following as evidence to
support their appeal: • A copy of the PCN and images of signs
from site. The above evidence will be considered in making our
determination.
Their decision is as follows;
POPLA is a single stage appeal service, we are impartial and
independent of the sector. We consider the evidence provided by
both parties to assess whether the PCN has been issued correctly
by the parking operator and to determine if the driver has
complied with the terms and conditions for the use of the car
park or site. Our remit only extends to allowing or refusing an
appeal. I acknowledge the appellants grounds of appeal and
evidence provided of the PCN and images of signs on site. I note
the signs advise there is a 1 hour max stay between 10am and
midnight, no parking is permitted outside the times on the
signs. I appreciate the appellant was not the driver and as
such, I need to establish if the operator has complied with the
requirements of the Protection of Freedoms Act (PoFA) 2012. For
the operator to transfer liability for unpaid parking charges
from the driver of the vehicle, to the registered keeper of the
vehicle, the regulations laid out in PoFA must be adhered to.
The Protection of Freedom Act 2012 (PoFA) schedule 4, is a piece
of legislation which enables operators to pursue the keeper of a
vehicle when they do not have the drivers name or contact
details. I have reviewed the PCN and note that the breach
occurred on 11th June 2024, and the PCN was issued on 14th June
2024, well within 14 days specified in PoFA. The Notice to
Keeper goes on to state that if after 29 days the full amount
has not been paid and they do not know the name and address of
the driver, they have the right to purse the registered keeper.
It also instructs the keeper to pass the notice to the driver.
As such, I must conclude that the operator has complied with the
requirements of PoFA and can hold the keeper liable. I have
reviewed the parking operators evidence pack, and it has
provided images of signs throughout the site and upon entry
which make the terms clear, and parking is free for 1 hour but
only between 10am and midnight as stated above. The appellants
own images demonstrate this and it’s the responsibility of the
driver to review the signs once parked and comply. I note there
is a McDonald’s restaurant on the other side of the site, but
this is separated by a road as demonstrated by the operator’s
evidence pack. I find this more than clear to show that the two
sites are clearly different, and the driver parked on the KFC
site for 18 minutes from 09:32 to 09:51, when no parking was
permitted. The BPA Code of Practice section 7.1 relates to
written authorisation and states: If you do not own the land on
which you are carrying out parking management, you must have the
written authorisation of the landowner (or their appointed
agent). The written confirmation must be given before you can
start operating on the land in question and give you the
authority to carry out all the aspects of car park management
for the site that you are responsible for. In particular, it
must say that the landowner (or their appointed agent) requires
you to keep to the Code of Practice and that you have the
authority to pursue outstanding parking charges. I have reviewed
the landowner agreement provided by the operator and it clearly
outlines the site in question, has a start date of February 2020
and an initial term of 3 years, rolling thereafter unless
cancelled. The agreement is signed by both parties, and I find
this more than sufficient to demonstrate the operator has
authority to issue PCN’s on the land in question. I note that
section 8 has been redacted but this only relates to ending the
agreement or service. This only outlines how the landowner can
end the agreement and as no agreement cancellation has been
provided and the fact that signs are still in place on site, I
find that the operator still has authority to issue PCN’s. The
joint single Code of Practice only became active on 1st October
2024, as the breach occurred in June 2024, it is not bound by
the new code. I must re-iterate that as the driver parked on
site for 18 minutes before 10am, during the no parking period,
the PCN was issued correctly. After considering the evidence, I
can see that the terms of parking were made clear, and that the
driver broke them by remaining on site without authorisation. I
am satisfied that the PCN was issued correctly and refuse this
appeal. Any questions relating to payment of the parking charge
should be directed to the operator.
I would greatly appreciate some advice on what to do next,
Many thanks!
#Post#: 40697--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: b789
Date: October 14, 2024, 10:02 am
---------------------------------------------------------
No big deal. You are not bound by the POPLA decision. Did you
respond to the Operator Response Pack?
Did you reiterate the point about PoFA 9(2)(e)(i) and the lack
of an "invitation" to the Keeper to pay the charge in the NtK?
The assessor has not mentioned that point and has only looked at
timeline of issue. It was important to point out that "partial
or even substantial compliance with PoFA is not sufficient". Not
that it will change any POPLA decision but I'd certainly make a
complaint to POPLA about this failure to consider the point
raised and that they need to fully educate their assessors in
understanding that FULL compliance with PoFA is required in
order to transfer liability from the driver to the keeper.
If you feel aggrieved enough by this unfair PCN and you want to
fight it, then let us know and we will advise on what happens
next. We successfully defend 99% of these PCNs.
#Post#: 40698--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: DWMB2
Date: October 14, 2024, 10:04 am
---------------------------------------------------------
If you're continuing to fight, then the ball is now essentially
in ParkingEye's court, and you are waiting to see if they decide
to take the matter to court
#Post#: 41129--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: bdu7
Date: October 17, 2024, 2:00 am
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[member=103]DWMB2[/member] [member=26]b789[/member] Thank you
for your replies.
Yes, despite the fact it will likely cost more in the time
spent, I feel the principle of the matter means it must be
fought. So I am happy to continue to fight this as far as
necessary.
What is likely to happen next?
#Post#: 41132--------------------------------------------------
Re: Parking Eye PCN - 0 Hours 0 Minutes - KFC Walkden, Salford
DIR By: DWMB2
Date: October 17, 2024, 2:53 am
---------------------------------------------------------
It can go a couple of ways with ParkingEye. Sometimes they farm
it out to a debt collector who will send a bunch of scary
sounding letters before you eventually receive a Letter of
Claim. Other times they do the litigation themselves.
Either way, you're looking out for a Letter of Claim, at which
point you should come back here for advice.
They have up to 6 years from the date of parking to make a
claim, but it would be unusual for ParkingEye to take that long,
they're normally comparatively quick if they do decide to sue.
If you move house before the matter has been to court, and
before the 6 years have expired, write to them to provide your
new address for service.
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