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#Post#: 47748--------------------------------------------------
Parkingeye no keeper liability
DIR By: NBSCMN
Date: December 1, 2024, 11:54 am
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Hi, this is PCN is now going to POPLA but I just want to confirm
before I send the application to them. Am I correct in saying
that this notice does not comply with the requirements of the
Protection of Freedoms Act 2012 (Schedule 4) ?
Driver overstayed.
Thanks
HTML https://imgur.com/a/9TpoKFy
#Post#: 47751--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: b789
Date: December 1, 2024, 12:08 pm
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Unable to tell as what you've shown us the reminder. Only the
original Notice to Keeper (NtK) is applicable and we'd need to
review it. It is as rare as hens teeth that PE don't issue a
(mostly) PoFA compliant NtK.
They usually fail to fully comply with PoFA 9(2)(e)(i) but you'd
be hard pressed to convince a POPLA assessor unless you can get
them to comprehend that the last three words in paragraph
9(2)(e) are required to make the NtK fully compliant with all
the requirements of PoFA and that partial or even substantial
compliance is not sufficient.
Without knowing what you original appeal to PE contained and
their reason for rejecting is, it is difficult to provide
further advice at this stage,
#Post#: 47757--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: NBSCMN
Date: December 1, 2024, 12:25 pm
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Ah i missed that that was the reminder letter. I may have
appealed based on the reminder letter but I need to have a look
for the original. I have attached their reason for rejection in
that link.
I will get back to you tomorrow with the original NtK
#Post#: 47864--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: NBSCMN
Date: December 2, 2024, 8:12 am
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ok i dont have the original letter. what would the next steps be
....
#Post#: 47866--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: DWMB2
Date: December 2, 2024, 8:15 am
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--- Quote from: b789 link ---
>
> Without knowing what you original appeal to PE contained [...]
it is difficult to provide further advice at this stage,
>
--- End Quote ---
We could do with seeing what you put in your appeal in order to
advise on next steps.
#Post#: 47868--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: NBSCMN
Date: December 2, 2024, 8:16 am
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see below
Dear,
I am writing to formally appeal Parking Charge Notice [PCN
Reference Number], issued on [Date of Issue] for vehicle
registration [Vehicle Registration Number].
This notice does not comply with the requirements of the
Protection of Freedoms Act 2012 (Schedule 4). As it does not
meet the conditions necessary for keeper liability, I, as the
registered keeper, am not liable for this charge. I therefore
request that you cancel this PCN.
If you choose not to cancel, please provide a POPLA code so I
may escalate this matter for independent review.
Thank you for your attention to this matter.
#Post#: 47878--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: b789
Date: December 2, 2024, 9:24 am
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SO, you need to convince a POPLA assessor that the Notice to
Keeper (NtK) was not PoFA compliant. Technically, it wasn't
because PE NtKs fail to comply with Paragraph 9(2)(e)(i) of
PoFA.
However, convincing a POPLA assessor that it isn't compliant
requires a lot of descriptive effort. We have yet to see one
accept this argument, not because it is not a valid argument but
because POPLA assessors conveniently ignore the point.
This is a point made in a very recent response to an operators
evidence where they ignored the point raised about PoFA
9(2)(e)(i). It's adapted slightly here:
--- Quote ---
> The operator has failed to comply FULLY with ALL the
requirements of Schedule 4 of the Protection of Freedoms Act
2012 (PoFA), specifically paragraph 9(2)(e)(i). The operator has
not adequately address this point, and their generic assertion
that the Notice to Keeper (NtK) complies with PoFA is
insufficient. It is essential for the POPLA assessor to consider
this carefully, as partial or even substantial compliance with
PoFA is not sufficient to establish Keeper liability.
>
> The legal requirements of paragraph 9(2)(e) are clear. 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” (as per subparagraph (i)).
>
> It is a common error for POPLA assessors to overlook the
importance of the last three words of paragraph 9(2)(e), which
are "INVITE THE KEEPER", and fail to properly link them to the
next requirement in subparagraph (i): "TO PAY THE UNPAID PARKING
CHARGES". This distinction is vital, as the requirement to
INVITE THE KEEPER is explicit in the legislation and cannot be
ignored. POPLA assessors must carefully check whether the NtK
explicitly fulfills this requirement, as otherwise they are
failing in their duty to impartially assess the operator’s
compliance with PoFA.
>
> The operator’s NtK fails to explicitly INVITE THE KEEPER to
pay the unpaid parking charges, as required by paragraph
9(2)(e)(i). Whilst the word "INVITE" itself does not have to be
used, there must at least be a synonym or clear equivalent that
serves to INVITE THE KEEPER. Simply inferring that the Keeper
must be invited by the fact that the PCN is addressed to them
does not satisfy the requirement of the Act. This omission
constitutes a failure to comply with ALL the requirements of
PoFA.
>
> The law is clear that FULL compliance with PoFA is necessary
for Keeper liability to apply. Partial or even substantial
compliance does not suffice. Any failure to meet ALL the
requirements renders the NtK non-compliant and prevents the
operator from transferring liability from the driver to the
Keeper. The operator’s assertion that their NtK is compliant
with paragraph 9(2)(b) (which concerns the amount of the charge)
does not address their failure to comply with paragraph
9(2)(e)(i). Compliance with SOME provisions of PoFA does not
equate to compliance with the ENTIRETY of Schedule 4.
>
> As the operator has failed to comply FULLY with PoFA, they
cannot hold the Keeper liable for the alleged parking charge.
The operator does not rebut this point, nor does it provide any
explanation for their failure to INVITE THE KEEPER to pay the
charge as required by paragraph 9(2)(e)(i).
>
> The operator’s NtK is not FULLY compliant with PoFA because it
fails to meet the requirements of paragraph 9(2)(e)(i). The
operator cannot transfer liability to the Keeper unless they
meet ALL the requirements of PoFA. Their failure to do so means
that the Parking Charge Notice is unenforceable against the
Keeper.
--- End Quote ---
I don't know how more exhaustive you can be to make this point
to a POPLA assessor.
#Post#: 47896--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: H C Andersen
Date: December 2, 2024, 11:53 am
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Back to contract law and PoFA.
Only the driver is liable, unless the creditor wishes to invoke
keeper liability in which case they must comply with PoFA. This
is common ground.
But what I feel has not been examined fully is the purpose of
all the elements of a NTK i.e. in this case what are the
conditions under para. 9?
Specifically, what is the significance and purpose of 'to invite
the keeper'?
IMO, it's not loose phrasing or throwaway words, it's there for
a purpose. It is the only phrase which brings the keeper into
the scope of the NTK because only this invitation allows the
keeper to take action(to pay) in a dispute which is otherwise
only between the creditor and the driver. Received wisdom might
be that the keeper could insinuate themselves into this process
without such an invitation, but IMO there's nothing other than
the invitation which makes this clear.
If the driver would like to pay, then this absolves the keeper
of any liability, and
If the keeper would like to pay, this would absolve the driver
of their liability.
#Post#: 50420--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: NBSCMN
Date: December 18, 2024, 3:17 pm
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how does something like this sound? I was thinking of adding
lack of land authority as welL?
I am writing in response to the operator's evidence regarding
the above-referenced Parking Charge Notice (PCN). I wish to
reaffirm my appeal on the basis that the Notice to Keeper (NtK)
is non-compliant with the Protection of Freedoms Act 2012
(PoFA), specifically Schedule 4, Paragraph 9(2)(e)(i). As a
result, keeper liability cannot be established.
While the operator asserts general compliance with PoFA, such
assertions are insufficient. The law requires full compliance
with all PoFA requirements for liability to transfer to the
registered keeper. Partial or substantial compliance does not
meet this threshold. In this case, the NtK falls short of the
statutory standard.
Paragraph 9(2)(e) of PoFA specifies that 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” (as per
subparagraph (i)).
A critical requirement of this provision is the explicit need to
"invite the keeper to pay the unpaid parking charges." This is
not optional; it is a clear legislative directive. While the use
of the word "invite" is not mandatory, the NtK must include
equivalent language that conveys an unmistakable invitation to
pay. Merely informing the keeper of the charge or providing
payment methods does not satisfy this requirement.
In this instance, the operator’s NtK fails to explicitly invite
me, as the keeper, to pay the charges. Instead, it merely
provides information about the charge. This omission is a direct
breach of Paragraph 9(2)(e)(i) and renders the NtK
non-compliant.
The operator may point to compliance with other parts of PoFA,
such as Paragraph 9(2)(b) regarding the specified amount of the
charge. However, compliance with certain sections does not
excuse non-compliance with others. Full adherence to all
relevant provisions is required to establish keeper liability.
The operator’s failure to address this fundamental
non-compliance undermines their claim of PoFA adherence.
As the NtK does not meet the statutory requirements of PoFA, the
operator cannot lawfully establish keeper liability.
Consequently, this PCN is unenforceable against me as the
registered keeper.
I respectfully urge the POPLA assessor to carefully review this
specific point of non-compliance. The explicit invitation to pay
is not a trivial detail but a crucial legal requirement.
Overlooking this omission would result in an incorrect
assessment of the operator’s adherence to PoFA.
For these reasons, I kindly request that my appeal be upheld and
the PCN cancelled.
#Post#: 50425--------------------------------------------------
Re: Parkingeye no keeper liability
DIR By: b789
Date: December 18, 2024, 4:12 pm
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That's very good. However, you are stating that you are
responding to the operators evidence pack, which means that you
have made the appeal to POPLA and you are now responding to
their response to your appeal.
Unless you introduced the contract validity argument in your
appeal, you cannot introduce new arguments in response to the
operators response pack. All you can do is highlight where they
have failed to answer or rebut your arguments.
If this is the original appeal to POPLA, then of course you
introduce everything you can. The contractual tight flowing from
the landowner argument is always used.
This is the landowner element of the POPLA appeal:
--- Quote ---
> 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 of the "relevant land" 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:
>
> [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 ---
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