NCP PCN by NCP - Chalfont & Latimer Railway / LU Station

So I have now received a letter back from NCP with the POPLA appeal code, and a quick summary of their rejection points:


- Vehicle was parked in a pay and display bay without clearly displaying a valid pay and display ticket
- We have full contracts with the land owner, absence of this contract would render us unable to issue a PCN
- Terms and conditions of which our services are provided are clearly displayed on entrance and throughout our facilities, including the requirement for motorist to ensure valid payment is made at all times in the vehicle.
- We are confident that all signage and the PCN are compliant with all industry standards and to the BPA's code of practice.

The signs are fairly new and clear, but I don't know what the legislation is. What is the best angle of attack for the POPLA appeal?

I have attached the NTK (windscreen) only:

Front: http://thumbsnap.com/f/AYTp5TJL
Back: http://thumbsnap.com/Mi0v5XEd

I never received anything by post - should I have done and does this change anything?


My first draft of appeal to POPLA:
(I need to confirm the signage section - I have printed the BPA conduct and will check for technicalities tonight). Are there any other points I should add?


Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £100 parking charge notice (PCN) issued by NCP.
I submit the reasons below to show that I am not liable for the parking charge:
1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
2. No standing or authority to neither pursue charges nor form contracts with drivers.
3. Unclear and non-compliant signage, forming no contract with drivers.
4. No genuine pre-estimate of loss.

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

NCP has failed to comply with POFA. Schedule 4 paragraph 8 of the POFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The NTK issued by NCP fails on four counts:
• 8(2)(a) – there is no mention of the period of parking to which the notice relates. It mentions the date and time of the event but gives no indication of how long the car was parked there, thus the period of parking.
• 8(2)(b) – the notice does not advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• 8(2)(c) – the notice does not state that a notice to driver relating to the specified period of parking has been given
• 8(2)(i) – the notice does not specify the date of on which the notice was sent. While it does have a date of issue, this give no indication as to when the notice was sent.

As the Notice to Keeper fails to meet these requirements, the keeper cannot be held liable.

2. No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, NCP must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put NCP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between NCP and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to NCP.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

3. Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BCP Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the signs are grey and small text that is difficult to read. The signs were also unlit which makes them very difficult to read in the hours which the car park is open (24 hours), especially during winter. These were easily missed as they are on one end of the car park only, with low height which could easily be concealed by cars, and not by any lighting.

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road.
Furthermore, the signage states a PCN "may" be issued. That is not a clear unambiguous warning.


The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.


4. No genuine pre-estimate of loss.

The charge is not a genuine pre estimate of loss but an unenforceable penalty as Parking Eye v Beavis can easily be distinguished from this case.
If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment. This makes plain that the sum being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If The Operator believes that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss. The charge is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court.

This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

Thanks Coupon Mad, I understand the process now! I'll add a section for the NTK not received, but the railway byelaws has me stumped.

I read every sign (NCP and non-NCP) in the car park and in the station, and there is no reference at all to the railway byelaws. How do I find out if they officially apply or not?

I also took a photo of the terms and conditions:
https://goo.gl/photos/RCAZnUvMKjtBL4gQA
https://goo.gl/photos/nFp4irSjkhEHFno48
https://goo.gl/photos/oME2kQSCRUdxZpPG7
https://goo.gl/photos/Dz6EEUpcEUYDDmDX9
https://goo.gl/photos/BxHLK6DSr8drQwZv9

Sign at entrance to car park:
https://goo.gl/photos/o2Us3MjQqVag8pkN9

I have a few obvious points to add - hard to read (blue text on grey background), dirty, unlit, and easily obscured behind parked cars.

But the byelaws bit - are all railway car parks included by default?

Would appreciate a pointer on this one please..

Thanks

Thanks - so the only mention of byelaws is in this thread, not on the ticket or the car park. So do I write the letter as per other templates with no mention of byelaws?