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#Post#: 64786--------------------------------------------------
Re: Private PCN in estate
DIR By: whydothistome
Date: March 29, 2025, 12:53 pm
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So sorry :) Issue Date: 15 Feb 2025
#Post#: 64791--------------------------------------------------
Re: Private PCN in estate
DIR By: b789
Date: March 29, 2025, 1:49 pm
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This should be straightforward for POPLA. The NtD is not
compliant with PoFA 7(2)(a). No NtK has been issued... yet!
This is why we need all the dates. On or after Wednesday 9th
April, you should submit the following appeal to POPLA, only as
the Keeper. DO NOT submit a POPLA appeal before Wednesday 9th
April.
Use this as your POPLA appeal:
--- Quote ---
> The appellant is the registered keeper and is under no legal
obligation to identify the driver. The operator has failed to
comply with the requirements of Schedule 4 of the Protection of
Freedoms Act 2012 (PoFA), and therefore keeper liability does
not apply. As such, the burden remains with the operator to
prove who was driving. The POPLA assessor is reminded that no
adverse inference may be drawn from the keeper’s silence, and no
assumption may be made that the keeper was the driver. This
position is supported by persuasive authority in VCS v Edward
(2023) [H0KF6C9C], where the court confirmed that the Protection
of Freedoms Act does not create any presumption that the
registered keeper was the driver, and that to infer such a link
in the absence of evidence would be wrong in law.
>
> 1. Non-compliant Notice to Driver – Breach of PoFA Schedule 4,
Paragraph 7(2)(a)
>
> The operator issued a Notice to Driver (NtD) on 15 February
2025, which purports to rely on PoFA for keeper liability.
However, the NtD fails to comply with the mandatory requirement
in Paragraph 7(2)(a), which states that the NtD must:
>
> [indent]“specify the vehicle, the relevant land on which it
was parked and the period of parking to which the notice
relates.”[/indent]
>
> In this case, the NtD merely stated an “observed time from:
N/A” and an “observed time to: 10:40”, with no measurable or
defined period of parking. This omission is fatal to PoFA
compliance under Paragraph 7(2)(a), which requires the notice to
specify a “period of parking”. A single point in time does not
demonstrate how long the vehicle remained on site, nor whether
the driver stayed beyond the minimum consideration period
typically required to review signage and decide whether to
accept the terms. Without any evidence of duration, it is not
possible to establish whether a parking contract could have been
formed at all.
>
> This position is supported by the persuasive appellate
judgment in Brennan v Premier Parking Solutions 2023)
[H6DP632H], where HHJ Mitchell confirmed that a timestamp or
single photograph cannot satisfy the requirement to specify a
“period of parking”. He emphasised that a parking event must
involve a period of time, however short, and that a momentary
presence does not demonstrate acceptance of any terms. Without
such evidence, no contractual liability arises, and no keeper
liability can flow under PoFA.
>
> 2. No Notice to Keeper Given Within the Relevant Period – PoFA
Schedule 4, Paragraph 8(4) and 8(5)
>
> As a NtD was issued, the operator must serve a Notice to
Keeper (NtK) that complies with PoFA Paragraph 8. Paragraph 8(4)
requires that the NtK be given (i.e. delivered) within the
“relevant period” defined in Paragraph 8(5), which is the 28
days following the expiry of 28 days from the day after the NtD
was given.
>
> [indent]• NtD issued: 15 February 2025
> • Relevant period ends: 12 April 2025
> • As 12 April 2025 falls on a Saturday, and deemed service
applies only on working days, the last date for posting a NtK
(to be deemed delivered on time) would be Wednesday, 9 April
2025.[/indent]
>
> As of the date of this appeal (9 April 2025), no NtK has been
received, and none could now be served in time. Any NtK posted
now would be deemed delivered after the relevant period ends,
and thus fail the requirements of Paragraph 8(4).
>
> 3. No Evidence That a Contract Could Have Been Formed
>
> The operator has also failed to demonstrate that a parking
contract could have been formed. The absence of a recorded
period of parking means there is no evidence that the vehicle
remained on site for longer than the minimum consideration
period — the industry-standard period during which a driver is
entitled to read and consider the terms displayed on signage
before deciding whether to accept the contractual terms and
remain parked. A brief presence on site, evidenced only by a
single timestamp, is not sufficient to demonstrate acceptance of
contractual terms. The burden rests with the operator to show
that the driver had time and opportunity to consider the terms
and chose to remain, thereby forming a contract. In the absence
of such evidence, no contract could have been formed, and no
liability — contractual or statutory — can arise.
>
> Conclusion
>
> As the Notice to Driver was non-compliant under Paragraph
7(2)(a), and no valid Notice to Keeper has been given within the
timeframe required by Paragraph 8 and that there is absolutely
no evidence that a contract was entered into by the conduct of
the driver, the operator has no lawful basis to pursue the
registered keeper. The appeal must therefore be allowed.
--- End Quote ---
#Post#: 68130--------------------------------------------------
Re: Private PCN in estate
DIR By: whydothistome
Date: April 22, 2025, 2:47 pm
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Submitted to POPLA and the operator has now uploaded the case
summary below as well as a 30 page PDF of photos and text.
Doesn't make sense to me and the English seems a little broken
in places like "Dvla legally send elite the keeper details" I
didn't even know they had asked the DVLA for the registered
keepers details.
Operator Case Summary
The motorist has said POPLA code: XYZ - PCN: ABC - Vehicle Reg
XX
Dear POPLA assessor, The appellant is the registered keeper and
is under no legal obligation to identify the driver. The
operator has failed to comply with the requirements of Schedule
4 of the Protection of Freedoms Act 2012 (PoFA), and therefore
keeper liability does not apply. As such, the burden remains
with the operator to prove who was driving. The POPLA assessor
is reminded that no adverse inference may be drawn from the
keeper’s silence, and no assumption may be made that the keeper
was the driver. However, Dvla legally send elite the keeper
details. Therefore, it is the keepers liability to send us the
details of the driver at the time of the offence, if the keeper
does not challenge this the case will then be kept as the
keepers details.
Shall I try upload the PDF here?
#Post#: 68133--------------------------------------------------
Re: Private PCN in estate
DIR By: b789
Date: April 22, 2025, 2:58 pm
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Upload the evidence using either DropBox or Google Drive. Make
sure you allow access to anyone. Remember to redact only your
personal info and the PCN number and your VRM. Leave everything
else visible.
#Post#: 68155--------------------------------------------------
Re: Private PCN in estate
DIR By: whydothistome
Date: April 22, 2025, 4:09 pm
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Uploaded their evidence pack here:
HTML https://imgur.com/a/WAEyiyz
#Post#: 68167--------------------------------------------------
Re: Private PCN in estate
DIR By: DWMB2
Date: April 22, 2025, 5:44 pm
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Just to confirm, did you submit the exact POPLA appeal template
suggested by b789 above?
Or did you send this:
--- Quote from: whydothistome link ---
>
> Dear POPLA assessor, The appellant is the registered keeper
and is under no legal obligation to identify the driver. The
operator has failed to comply with the requirements of Schedule
4 of the Protection of Freedoms Act 2012 (PoFA), and therefore
keeper liability does not apply. As such, the burden remains
with the operator to prove who was driving. The POPLA assessor
is reminded that no adverse inference may be drawn from the
keeper’s silence, and no assumption may be made that the keeper
was the driver.
>
--- End Quote ---
#Post#: 68210--------------------------------------------------
Re: Private PCN in estate
DIR By: whydothistome
Date: April 23, 2025, 4:40 am
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I used b789's template which contains the phrase you highlighted
that they seem to have just cherry picked in that block in their
summary.
#Post#: 68240--------------------------------------------------
Re: Private PCN in estate
DIR By: b789
Date: April 23, 2025, 5:56 am
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Copy and paste the following into the POPLA webform for the
response:
--- Quote ---
> This is the appellants response to the operators evidence.
>
> The keeper was not the driver and is under no obligation to
identify the driver. This was stated clearly in the appeal. The
operator has completely failed to engage with this or provide
any evidence as to the identity of the driver. Nothing in PoFA
allows the assumption that the keeper was the driver, and no
such inference is permitted, as made clear in the persuasive
appellate case of VCS v Edward (2023).
>
> The appeal also clearly explained that no Notice to Keeper
(NtK) was issued following the Notice to Driver (NtD). This is a
key requirement under Paragraph 8 of PoFA if the operator wishes
to transfer liability to the keeper. There is nothing in the
operator’s evidence pack to suggest a NtK was ever issued. They
have completely ignored this point. Without a PoFA-compliant NtK
served within the correct timeframe, there is no keeper
liability. This alone is fatal to their case.
>
> The appeal pointed out that the NtD fails to specify a “period
of parking” as required by Paragraph 7(2)(a) of PoFA. The
ZatPark report included in their evidence confirms this,
explicitly stating “Observed from: N/A”, “Observed to: N/A”, and
“Observed for: N/A”. Their own timestamped photos span just 10
seconds — this is not a period of parking. They have not
addressed this at all, let alone explained how a contract could
be formed in under 10 seconds, or how the driver could have
read, understood, and accepted any terms.
>
> The appeal also raised the issue of whether a contract could
have been formed at all, due to the lack of any meaningful
evidence that the driver had time to consider the terms. Again,
completely ignored. No response from the operator.
>
> The operator relies on signage to claim a contract existed,
but their evidence undermines this. They include four facsimile
images of signs, which are not photographs of signs in situ.
These are mock-ups, not proof of what a driver would have seen.
The £100 charge is buried deep in a dense block of small text,
not highlighted at all. This is contrary to the Beavis ruling,
which was based on the charge being clearly and prominently
displayed.
>
> The actual photos of signs that they do include are even worse
for them. The signs are high up, weathered, and unreadable —
even in their own close-up shots. If the operator can’t provide
a clear image in optimal conditions, then it’s clear that a
driver on the ground would have no chance of reading and
understanding the terms. These signs fail the test in PoFA
paragraph 2(2) which states:
>
> "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)."
>
> and
>
> Paragraph 2(3) which states:
>
> 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.
>
> of being “adequately brought to the attention” of the
motorist.
>
> They also include in their evidence pack, a Google Earth-style
satellite view with a green line and four yellow dots but
provide no explanation of what these mean. There is no key, no
annotation, and it’s not clear how this is relevant. This is not
evidence.
>
> Finally, the operator misstates the law, either deliberately
or due to utter incompetence, when they say that because the
DVLA provided the keeper’s details, the keeper must identify the
driver. This is legally wrong. The DVLA provides details for the
purpose of issuing notices, not to presume liability. There is
no requirement for the keeper to identify the driver, and no
adverse inference can be drawn from their silence.
>
> In short, the operator’s evidence fails to rebut any of the
appeal points. They have ignored the lack of a NtK, ignored the
absence of a period of parking, ignored the question of contract
formation, and relied on signage that their own evidence shows
is unreadable. They have misrepresented the law on keeper
liability and have not provided any legitimate basis to pursue
the keeper.
>
> This appeal must be allowed.
--- End Quote ---
#Post#: 68362--------------------------------------------------
Re: Private PCN in estate
DIR By: whydothistome
Date: April 23, 2025, 4:29 pm
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Thank you very much. Comments submitted, see you in 6-8 weeks.
#Post#: 68433--------------------------------------------------
Re: Private PCN in estate
DIR By: H C Andersen
Date: April 24, 2025, 7:20 am
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When it comes to the hearing, I strongly suggest you lead with
the KEY legal point which is that you have only appealed as
keeper because Elite notified you that 'you have now...internal
appeals procedure' and for no other reason.
As the assessor will be aware, the 'Right to claim unpaid
parking charges from keeper of vehicle' conferred by s.4 of
Schedule 4 to the P...of F..Act 2012 may only be exercised,
inter alia, after a Notice to Keeper has been served.
None has been served in this case as is clear from the
creditor's evidence. It therefore follows as a matter of law
that the keeper has no liability in this matter and I ask the
assessor to direct the creditor accordingly.
And let's not worry about secondary issues, even whether a
parking charge was due because IMO they are not relevant to
achieving the objective. The creditor fails on the KEY point and
that's all that's required....IMO.
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