Is my NTK PoFA 2012 compliant?

rob.j.jackson · 27 November 2014 at 10:27PM

Hi all,

My wife has recently received a NTK from VCS concerning an alleged parking violation. The vehicle was parked at the side of an access road (where there were no obvious parking restrictions in place (yellow lines etc). In fact the yellow lines from the main road extend onto the access road for around 5m then stop. On closer inspection of the site there are in fact warning signs. These signs have been recently placed on the site, and the vehicle has been parked in this location many times in the past without incident.

My wife was not the driver at the time of the incident and we intend to appeal the charge. The NTK however quotes IAS as the 'independent' body through which I must appeal, provided VCS reject the initial appeal.

I have recently had a separate PCN cancelled by a different PCC but that appeal would have went to POPLA which I understand is a lot easier to win so I do have a basic knowledge of the key points.

I am hoping to appeal this PCN mainly on the grounds that the NTK is not PoFA 2012 compliant and therefore the registered keeper has no case to answer. I have spent a few days reading lots of threads and the PoFA regulations but am still unsure if I have a case.

The NTK was issued 20/11/14 with the offence taking place on 18/10/14 so it is within the stipulated time frame. However there are no photos or any form of evidence that either the offence took place of a NTD was issued included with the NTK. Is this a contravention of Schedule 4 paragraph 8 section 7 'When the notice is given it must be accompanied by any evidence prescribed under paragraph 10'?

Other areas where I think I may have a case against POFA2012 are as follows:
-The NTK does not mention PoFA2012 on it anywhere would this also be considered a contravention?
-The period of parking is mentioned as 'the period that immediately precedes the contravention time refered to above'. Is that sufficient?
-The reason for the contravention is stated as 'parked in a restricted area in a car park'. This is not the case as I was parked on an access road.

Can someone please confirm whether this NTK is PoFA compliant? I am pretty happy with the other point of any appeal but i feel this could be the main on to concentrate on.

The NTK and signs are linked to below:

Sign:
hxxp://s000.tinyupload.com/index.php?file_...050905494754823[/url]

NTK1;
hxxp://s000.tinyupload.com/index.php?file_...735283669225102[/url]

NTK2;
hxxp://s000.tinyupload.com/index.php?file_...556502406962634[/url]

Thanks in advance for any help, it is greatly appreciated.

Rob

Coupon-mad · 28 November 2014 at 12:09AM

Re your questions:

However there are no photos or any form of evidence that either the offence took place or a NTD was issued, included with the NTK.

What about when you go online and try to view your images, as victims might do if daft enough to be planning to pay? Are there any online images showing a yellow ticket on the car?

Is this a contravention of Schedule 4 paragraph 8 section 7 'When the notice is given it must be accompanied by any evidence prescribed under paragraph 10'?

Nope, ignore that part completely as there is no paragraph 10 yet, nothing more has been 'prescribed' since POFA 2012.

Other areas where I think I may have a case against POFA2012 are as follows:
-The NTK does not mention PoFA2012 on it anywhere would this also be considered a contravention?

No, it doesn't have to. It just needs the wording as set out in paragraph 8.

-The period of parking is mentioned as 'the period that immediately precedes the contravention time referred to above'. Is that sufficient?

We've tried that argument before and the IAS hit the 'computer says no' button!

-The reason for the contravention is stated as 'parked in a restricted area in a car park'. This is not the case as I was parked on an access road.

can't see the IAS buying that argument either.

therefore the registered keeper has no case to answer.

No - the IAS will reject that unless the keeper can PROVE they were elsewhere and not driving. Even if the NTK was pants, the IAS would disregard the 'no keeper liability' argument if the appellant did not show they were 100% NOT driving, such as by a corroborating statement signed by a colleague or something...maybe...if IAS would even look at it. And you'd need to show them evidence of both sides of the NTK as well or they'd say the missing wording 'was probably on the back' or something equally shocking.

Can someone please confirm whether this NTK is PoFA compliant?

I can't get the links to work, I get this login page:

http://s000.tinyupload.com/index.php?file_...050905494754823[/url]

Please try again, you may have to host them on tinypic or photobucket instead.

rob.j.jackson · 28 November 2014 at 12:43AM

Hi, thanks for the reply.

Im sorry if i wasnt clear, there was a PCN on the car windscreen. This was duly ignored as per all the advice until the NTK appeared through the door.

With regards the photos, I cannot see any mention on the NTK that the photographic evidence is available anywhere online. I have read the NTK over and over again so either it isnt there or im being really stupid - I cannot rule either out at this point!

If i go onto the VCS website and follow the process to pay I am not presented with any evidence either. I have taken this process as far as I can without entering details.

I apologise about the links, I have cut and pasted shortened links. These ones should hopefully work.

Sign:
hxxp://s000.tinyupload.com/index.php?file_id=05532050905494754823

NTK front:
hxxp://s000.tinyupload.com/index.php?file_id=01886735283669225102

NTK back:
hxxp://s000.tinyupload.com/index.php?file_id=26078556502406962634

One final point, the NTK mentions that the PCN has been issued 'for breaching the car park terms and conditions', am I correct that this allows me to use the GPEOL argument?

Thanks again for any and all help.
Rob

rob.j.jackson · 28 November 2014 at 12:45AM

Sorry, I forgot to mention, I understand that I am unlikely to win any appeal to either VCS or IAS. I am fine with that. However, I would like some peace of mind that in the unlikely event this ever went to court I would have a reasonable chance of defending myself.

Cheers,
Rob

Coupon-mad · 28 November 2014 at 1:40AM

rob.j.jackson wrote: »

Sorry, I forgot to mention, I understand that I am unlikely to win any appeal to either VCS or IAS. I am fine with that. However, I would like some peace of mind that in the unlikely event this ever went to court I would have a reasonable chance of defending myself.

Yes you would - and there are expert firms that can provide such defences if people are not confident to do it themselves. You would have a very good chance of defence on the 'no GPEOL' argument for one thing, and the gobbledegook sign for another!

http://s000.tinyupload.com/index.php?file_id=05532050905494754823

I can see the sign and it takes the biscuit for one of the most confusing we've seen in a long while! It means nothing as it contradicts itself! I reckon you might win your IAS appeal if you show them the signs but NOT linked like you have done here (they won't click on the links that I just had to; the photo hosting site tried to make me download a video - so don't host the pics for IAS there, reload them into photobucket).

At the top of the signs you have:

'NO STOPPING OR PARKING AT ANY TIME' {would suggest any breach is trespass}

then

'IF a valid ticket or permit is required...' {What do they mean: 'if'?!! How does a driver know what's required, if the sign is so vague?!}

then

'By parking you are entering into a contract...' {hang on, thought there was NO parking?}

then

'If you breach the t&cs...' {as you say, this means you can argue no GPEOL}

There is also no geographical address for the Operator nor geographical address and details about where complaints to the landowner can be directed.

The sign seems to be aimed ONLY at a driver being liable, there is nothing there about the keeper being liable, only that the keeper's data may be obtained from the DVLA to find out the ID of the driver. So if the PPC are going to try to invoke keeper liability, the signs do not support that and are wholly misleading, contradictory, unclear and so the doctrine of 'contra proferentem' applies and the interpretation that most favours the motorist must prevail = there is no contravention of that sign as drafted.

Interesting NTK, they have indeed changed the usual wording and are ONLY pursuing the driver (or assuming the keeper was the driver!):

http://s000.tinyupload.com/index.php?file_id=01886735283669225102

http://s000.tinyupload.com/index.php?file_id=26078556502406962634

If people don't want to click on those odd links, here's another pic of the same style NTK showing VCS are not following the POFA:

https://www.dropbox.com/s/1jznextinlo3d7e/Berkeley%20vcs%20npc.pdf

And yet the NTK goes to the trouble of identifying the creditor (which is a POFA requirement, yet they don't need to, as this is not otherwise worded as a POFA NTK!).

rob.j.jackson · 28 November 2014 at 11:44AM

Hi,

Thanks Coupon-Mad for your very detailed responses, you have revived my desire to fight this (I was contemplating just paying it!). I would hug you if I could but that may not necessarily be regarded as an appropriate form of thanks and rather harrassment! lol

I was fearful that given the signs are new and VCS have recently jumped from BPA to IPC (and hence had to change all their documentation) they may have nailed down the wording and compliance with any relevent standards. Clearly this is not the case.

How hard can it be to design compliant signage and correctly worded documentation? Anyway their loss!

A few final questions before I write my appeal if you dont mind.

In your final point are you saying that they are not pursuing the RK under POFA, and in theory a simple 'I wasnt the driver, take it up with them.' appeal should work?

Obviously I will not rely solely on that point but if that is the case I will open my appeal with it.

Secondly, is it worth spending the time writing an indepth appeal to VCS in the first instance detailing all points of my appeal (non compliant signs, non compliant NTK, GEOPL etc) as I eventually will for any IAS appeal or will a very high level version highlighting the key points do? The indepth version will potentially have to be written anyway for IAS and should show VCS that I mean business (or is that wishful thinking). Also should I send VCS any proof highlighting my points or save that for IAS?

Finally when should I send the appeal. I am given to understand from reading many threads on this and other forums that it is not unheard of for PPCs to issue revised documentation which addresses at least some of the points raised in the appeal.

The NTK is dated 20/11/14 so by my reckoning the 28days in which I can appeal would take me to 18/12/14. Should I hold off sending the appeal for a week or so? I presume there is no real benefit appealing with the 14days to retain the option of reduced payment.

Thanks again for all help.

Rob

BenefitMaster · 28 November 2014 at 12:02PM

For the record, I've never seen an NTK that is compliant with POFA. The reason for this is because none of them state the fee that was due on the day before the day that the NtK was issued.

Coupon-mad · 28 November 2014 at 12:12PM

BenefitMaster wrote: »

For the record, I've never seen an NTK that is compliant with POFA. The reason for this is because none of them state the fee that was due on the day before the day that the NtK was issued.

We agree (as usual)! Yet strangely this NTK doesn't even try to hold the keeper liable under the POFA, which is new for VCS.

In your final point are you saying that they are not pursuing the RK under POFA, and in theory a simple 'I wasnt the driver, take it up with them.' appeal should work?

Obviously I will not rely solely on that point but if that is the case I will open my appeal with it.

Yes, the NTK wording makes it clear - they are not pursuing the RK under POFA. Not sure why, but they are not, they are relying on the assumption the keeper was the driver (and the IAS will support that assumption unless you prove otherwise).

That sign cannot possibly meet the IPC CoP and surely any lawyer at IAS looking at it cannot possibly find it creates a clear contract if you point out all the flaws as I summarised above, and attach a copy of the sign picture and the NTK, both sides (NOT hosted on that site though!).

As for the first appeal to VCS, don't bust a gut over it - no point!

rob.j.jackson · 28 November 2014 at 12:25PM

Thanks again for all your help, it is very much appreciated.

I shall produce an appeal letter in the next few days and post it on here for comments before sending. When should I send this appeal or does it matter?

rob.j.jackson · 28 November 2014 at 12:53PM

Sorry, another point has just come to me.

If VCS are pursing the registered keeper on the assumption they were the driver and not by means of PoFA, which will be uphelp by IAS in the absence of any proof to the contrary, how does that stand up in court with the whole innocent until proven guilty mantra?

Surely PoFA was introduced to stop motorists simply saying they were not driving and hence avoiding tickets. However if the PPC does not comply with the regulations then the onus must be on them to prove the registered keeper was driving rather than the other way round. The keeper can not be held liable on an assumption in court can they? If so why the need to introduce regulations by which the registered keeper can be held liable?

Apologies if I am just babbling now and this has already been covered elsewhere. I like to get my head around things and fully understand all issues.

Cheers,
Rob

bod1467 · 28 November 2014 at 12:57PM

Small claims court is decided "on the balance of probabilities", and not "beyond all reasonable doubt". Innocent until proven guilty doesn't come into it.

Is my NTK PoFA 2012 compliant?

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free