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  • FIRST POST
    • mixu
    • By mixu 1st Sep 16, 1:53 PM
    • 166Posts
    • 646Thanks
    mixu
    PCN in NCP London Underground station
    • #1
    • 1st Sep 16, 1:53 PM
    PCN in NCP London Underground station 1st Sep 16 at 1:53 PM
    Hi,

    Hope I'm doing this right — appreciate any help anybody can offer...

    Received these two PCN notices from a NCP London Underground station in July — probably should've posted here initially, but our response to both of them is below. And two subsequent rejected appeals which we now need to respond to.









    Our response:

    I wish to appeal the alleged failure to make payment, given that your chosen method of payment via Dash did not process my text message requesting two days’ parking.

    I have used this car park for years, and this method of payment since it was introduced, and you will notice from your records that I have never failed to make a payment for parking. I have records of text messages sent — usually for four days a week — going back to August 2015, and also receipts for payment.

    These receipts sometimes arrive within seconds, and often when I am on the Tube commuting to work. But given that they have never failed to arrive, confirming my request to pay, I have grown confident in the system and never felt the need to double-check it has been processed.

    In this case, your technology provider has failed and your system is responsible for the failure to process the requested payment.

    My text message was sent — and I have proof of this — on Wednesday 6 July at 8.16am requesting parking for the 6th and 7th of July. I was unaware that Dash had failed to process the payment until I received this Penalty Charge Notice and would obviously have rectified the situation if I had received a text saying there had been a problem processing payment.

    Surely it would make sense for a regular, reliable customer to make payment retrospectively if a technical error had occurred?

    Therefore, this Parking Charge Notice should be cancelled as you are liable for the mistake not myself.

    Also, the charge is an extremely unreasonable amount given the parking charge is just £5.10 a day and I fully expect it to be overturned.
    Strangely, there were two different responses to the appeal — both rejected and neither of which address our points:


    Re: xxx issued at xx LU Stn (ANPR) on 06 July 2016 to vehicle with registration mark xxx

    Thank you for your recent correspondence regarding the above notice number. We have considered the case carefully and have decided to reject your appeal on the following grounds;

    The Parking Attendant has recorded that the vehicle was parked in a pay and display bay without clearly displaying a valid pay and display ticket. The valid pay and display ticket must then be clearly displayed ensuring that the expiry date is clearly visible from the outside of the vehicle.

    The 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 clearly displayed at all times in the vehicle. We are confident that all signage and the PCN are compliant with all industry standards and to the British Parking Association's code of practice to which we subscribe.


    You now have the following options;
    Pay the Parking Charge Notice at the discounted amount of £60.00 within 14 days. Please note that after this time the Parking Charge Notice will increase to the full charge of £100.00.
    Payment can be made:
    * Online, by visiting https://www.ncp.co.uk/pcn
    * By sending a cheque or postal order, made payable to National Car Parks Ltd to: National Car Parks Ltd. Notice Processing, PO Box 839, Northampton, NN4 4AL.
    * By Debit or Credit card (except American Express). Please call 0345 452 7780 and have your card details and the information held in this letter to hand.

    Alternatively, you can make an appeal to POPLA - The Independent Appeals Service. If you wish to make an appeal to POPLA the forms are available on the website at www.popla.co.uk. The verification code you will need in order to appeal to the Independent Appeals Service is xxx. Please note that if you opt for independent arbitration of your case you will lose your opportunity to pay the discounted offer and the full amount of the parking charge will apply. Your appeal to POPLA must be made within 28 days of the date of this letter, any appeals to POPLA made after the 28 days will not be assessed. The independent adjudicator is unable to waive the parking notice because of mitigating circumstances and a decision will be based on facts and evidence only. If you have any trouble in appealing or cannot access the website please contact us on 01604 625 622.

    By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

    If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.
    Yours sincerely,
    Notice Processing Team
    National Car Parks
    And:


    Re: xx issued at xx LU Stn (ANPR) on 07 July 2016 to vehicle with registration mark xx

    Thank you for your recent correspondence regarding the above notice number. We have considered the case carefully and have decided to reject your appeal on the following grounds;

    The Automatic Number Plate Recognition service has recorded that the parking session for your vehicle was not paid for within the stipulated time.

    The 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 for the vehicle. We are confident that all signage and the PCN are compliant with all industry standards and to the British Parking Association's code of practice to which we subscribe.


    You now have the following options;
    Pay the Parking Charge Notice at the discounted amount of £60.00 within 14 days. Please note that after this time the Parking Charge Notice will increase to the full charge of £100.00.
    Payment can be made:

    * Online, by visiting https://www.ncp.co.uk/pcn
    * By sending a cheque or postal order, made payable to National Car Parks Ltd to: National Car Parks Ltd. Notice Processing, PO Box 839, Northampton, NN4 4AL.
    * By Debit or Credit card (except American Express). Please call 0345 452 7780 and have your card details and the information held in this letter to hand.

    Alternatively, you can make an appeal to POPLA - The Independent Appeals Service. If you wish to make an appeal to POPLA the forms are available on the website at www.popla.co.uk. The verification code you will need in order to appeal to the Independent Appeals Service is xxx. Please note that if you opt for independent arbitration of your case you will lose your opportunity to pay the discounted offer and the full amount of the parking charge will apply. Your appeal to POPLA must be made within 28 days of the date of this letter, any appeals to POPLA made after the 28 days will not be assessed. The independent adjudicator is unable to waive the parking notice because of mitigating circumstances and a decision will be based on facts and evidence only. If you have any trouble in appealing or cannot access the website please contact us on 01604 625 622.

    By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

    If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.
    Yours sincerely,
    Notice Processing Team
    National Car Parks
    Hugely appreciate anybody's time and opinion as to what the appeal to POPLA might be? Especially given the different responses...

    Suspect railway byelaws, frustration of contract and disproportionate private parking charge apply?

    Let me know if there's any information I've missed out.

    Many thanks in advance!
Page 1
    • Coupon-mad
    • By Coupon-mad 1st Sep 16, 9:30 PM
    • 40,626 Posts
    • 52,493 Thanks
    Coupon-mad
    • #2
    • 1st Sep 16, 9:30 PM
    • #2
    • 1st Sep 16, 9:30 PM
    Here's one about NCP Underground PCN that may help give you a steer:

    http://forums.moneysavingexpert.com/showthread.php?t=5518913

    ...although I see you've found Boggy on pepipoo already:

    http://forums.pepipoo.com/index.php?showtopic=108177&st=0&p=1207378&#entry12 07378

    That is the sort of POPLA appeal to draft.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • parkingwoes
    • By parkingwoes 2nd Sep 16, 1:13 AM
    • 85 Posts
    • 62 Thanks
    parkingwoes
    • #3
    • 2nd Sep 16, 1:13 AM
    • #3
    • 2nd Sep 16, 1:13 AM

    I have used this car park for years, and this method of payment since it was introduced, and you will notice from your records that I have never failed to make a payment for parking. I have records of text messages sent — usually for four days a week — going back to August 2015, and also receipts for payment.

    !
    Originally posted by mixu
    Oh dear you have certainly identified yourself as driver -
    • mixu
    • By mixu 8th Sep 16, 4:44 PM
    • 166 Posts
    • 646 Thanks
    mixu
    • #4
    • 8th Sep 16, 4:44 PM
    • #4
    • 8th Sep 16, 4:44 PM
    The legalese confuses me somewhat... However, be grateful for any thoughts on this:


    Latest draft: 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. Frustration of contract
    2. Railway Land is Not ‘Relevant Land’
    3. No standing or authority to neither pursue charges nor form contracts with drivers.
    4. Unclear and non-compliant signage, forming no contract with drivers.
    5. Disproportionate private parking charge.


    1. Frustration of contract


    As was made clear in the original appeal, a text message was sent as payment — as stated as an acceptable form of payment in the terms and conditions. Your technology provider failed on this occasion and therefore your system is responsible for the failure to process the requested payment

    2. Railway Land is Not ‘Relevant Land’


    The NCP operated car park at xxx London Underground station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises.

    The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)(c). It says that “relevant land” means any land on which the parking of a vehicle is subject to “statutory control.”

    A Byelaw is a long standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

    On the basis that Byelaws cover this station , it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.

    3. 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.

    4. 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 BPA 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 or blue background and all text is blue, making the small text 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 if arriving when dark 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.

    5. Neither irrelevant case law (ParkingEye v Beavis, which is not applicable) nor the remedy under the Railway byelaws can support or provide a rationale for this disproportionate private parking charge.

    (a) This land is covered by Railway Byelaws. As such, the remedy for any breach is an actual 'penalty' as defined in those byelaws. Prescribed statutory rules (not the BPA CoP) apply to penalties and the offer of parking is made by the Train Operating Company (TOC) or landowner, only by virtue of the byelaws, in the same way that any offence can only flow from defined restrictions within those byelaws. A parking offence can only be pursued in the Magistrates Court by the landowner/TOC themselves which is the only true legitimate interest on this land which is under statutory control.

    The car park is already offered/controlled by the TOC which has the lawful remedy of a byelaws penalty open to them. There is no 'legitimate' interest in NCP re-offering the spaces under wholly different terms and charging £100 for their own profit. Two separate sets of terms, obligations and remedies relating to the same parking behaviour cannot co-exist; the land falls under byelaws so there is no scope for what seems to be potentially, a bribe: 'pay us £100 and we won't tell the TOC to pursue the matter under the applicable byelaws'.

    Where there is any ambiguity regarding duplication or confusion in contractual or statutory terms/charges or obligations, the interpretation which most favours a consumer must prevail. In this case the interpretation which most favours a registered keeper appellant, is that NCP have no 'legitimate interest' in imposing their own 'charge' instead of a byelaws penalty, which only applies to an established driver.

    NCP or the TOC should have identified the alleged offender and the TOC should then have followed their own byelaws procedures; their only legitimate interest in the matter, if they believed there was a case against the driver that day.

    (b) NCP seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (NCP and ParkingEye) described the sum as a 'parking charge'.

    There the similarities end. The Beavis case has no application here, except in favour of my case as appellant.

    That decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

    The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a tangible sum.

    This is clearly a 'standard' monetary dispute over an alleged unpaid tariff.

    In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

    By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to NCP.

    As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty.

    But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 100. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 because the Beavis case rationale does not apply to standard contracts.

    In Beavis, the difference was there was no small sum owed and so, to reach their decision, the Judges had to consider other interests and the value of the free licence to park at that location made it a far more complex contract than this one. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

    The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case. The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation.

    This sort of contract was not under discussion in the Beavis case. In fact, the Supreme Court considered that Lord Dunedin's four tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant'.

    The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by NCP merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

    At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

    In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,...”.

    The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

    Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest NCP has in enforcing their £100 charge instead of the 'outstanding tariff' (or indeed instead of the TOC enforcing the penalty arguably arising under the byelaws) is NCP's profit alone.

    This position is reinforced in the earlier judgment from the Court of Appeal, where the judgment states:

    "44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

    45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

    47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

    The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148:

    “But that a very large sum should become immediately payable, in consequencecof the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

    The Consumer Rights Act 2015 includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed and is the fundamental legislation relating to standard contracts between traders and consumers. It is applicable to this case.

    The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

    'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty or copy/pasting skewed 'guidance' from the BPA or another parking industry interested party, I suggest that it would be impossible to apply ParkingEye v Beavis to this standard economic contract. As NCP have shown no other compelling reason or rationale for escalating a pound or two parking tariff to £100, they fall foul of the penalty rule... just as ParkingEye would have, if they had taken a 'standard contract' case to Supreme Court level.

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

    Yours faithfully
    Last edited by mixu; 08-09-2016 at 4:46 PM.
    • Coupon-mad
    • By Coupon-mad 9th Sep 16, 5:54 PM
    • 40,626 Posts
    • 52,493 Thanks
    Coupon-mad
    • #5
    • 9th Sep 16, 5:54 PM
    • #5
    • 9th Sep 16, 5:54 PM
    You need a point about no OWNER liability/no evidence that the individual they are pursuing for the charge is the person liable.

    Have a look at this one and copy/adapt some of it, changing it to NCP (instead of Indigo).

    http://forums.moneysavingexpert.com/showthread.php?p=71020167#post71020167

    It is possible POPLA might adjourn the decision for a couple of months so don't be surprised if they do:

    https://popla.co.uk/

    POPLA are considering the fact that they should not be hearing 'byelaws' cases at all. Nothing for you to worry about whether they do or they don't because NCP are not litigious and if this is alleged to be a charge in lieu of a byelaws penalty then it will be 'timed out' for enforcement within six months anyway.
    Last edited by Coupon-mad; 09-09-2016 at 5:58 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mixu
    • By mixu 12th Sep 16, 10:06 PM
    • 166 Posts
    • 646 Thanks
    mixu
    • #6
    • 12th Sep 16, 10:06 PM
    • #6
    • 12th Sep 16, 10:06 PM
    Thanks,

    If I (admittedly foolishly) identified myself as the driver in the original appeal does this apply? Or is this a keeper/owner issue?

    Appreciate the advice!
    • mixu
    • By mixu 12th Sep 16, 11:21 PM
    • 166 Posts
    • 646 Thanks
    mixu
    • #7
    • 12th Sep 16, 11:21 PM
    • #7
    • 12th Sep 16, 11:21 PM
    Getting there... I think?

    Again, any advice and/or opinion is hugely appreciated.

    Thanks in advance.

    Draft POPLA appeal:





    Latest draft: 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. Frustration of contract
    2. No Keeper Liability
    3. Railway Land is Not ‘Relevant Land’
    4. No standing or authority to neither pursue charges nor form contracts with drivers
    5. Unclear and non-compliant signage, forming no contract with drivers


    1. Frustration of contract

    The doctrine of frustration operates in situations where, due to subsequent change in circumstances, the contract is rendered impossible to perform, entitling the frustrated party to rescind the contract without paying damages. A text message was sent as payment — as stated as an acceptable form of payment in the terms and conditions. NCP’s technology provider failed on this occasion and therefore its system is responsible for the failure to process the requested payment

    A text message was sent on Wednesday 6 July at 8.16am requesting parking for the 6th and 7th of July. Unaware that Dash had failed to process the payment until the Penalty Charge Notice was received, the situation would obviously have been rectified the same day if a message was sent saying there had been a problem processing payment.

    In this case, NCP’s technology provider has failed and its system is responsible for the failure to process the requested payment.


    2. No Keeper Liability

    The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.

    From the evidence provided to POPLA by the operator, I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The Protection of Freedom Act 2012 positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.

    Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:

    - POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
    - Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.

    As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the Protection of Freedom Act 2012 having been followed.

    3. Railway Land is Not ‘Relevant Land’

    The NCP operated car park at xxx London Underground station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises.

    The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)©. It says that “relevant land” means any land on which the parking of a vehicle is subject to “statutory control.”

    A Byelaw is a long standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

    On the basis that Byelaws cover this station, it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.

    4. 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.

    5. 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 BPA 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 or blue background and all text is blue, making the small text difficult to read. Furthermore, the text is illegible under its plastic casing which means the driver would need to crouch down and press the casing against the text to attempt to read it.

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

    Yours faithfully
    • Coupon-mad
    • By Coupon-mad 12th Sep 16, 11:41 PM
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    Coupon-mad
    • #8
    • 12th Sep 16, 11:41 PM
    • #8
    • 12th Sep 16, 11:41 PM
    Getting there. And yes you can use the fact there is no evidence as to the OWNER.

    Have a look at the most recent posts in 'POPLA Decisions' which includes a recently written appeal point going into more depth about illegible signs in outdoor car parks. NCP signs at railway car parks are excessively wordy with the parking charge very much buried/hidden in small print so the example you see in 'POPLA Decisions' posted at the weekend, can be used by you to really make it clear to POPLA that the signs are woefully inadequate.

    As regards 'no standing' we have newer examples than the point you've used. Look for POPLA appeals where 7.3 of the CoP is cited (search this forum board for 'POPLA 7.3 landowner authority' and find one with that quoted).

    You could also use the wording suggested by the Parking Prankster for POPLA appeals, about distance contracts, as this was a phone transaction which concluded by way of more than just a single one-way message (if it had worked). So this law applies:

    http://www.legislation.gov.uk/uksi/2013/3134/schedule/2/made

    ...and we need some wording to cover it for POPLA appeals. I'll see if the Prankster has a pre-written point using that statute.
    Last edited by Coupon-mad; 12-09-2016 at 11:46 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mixu
    • By mixu 13th Sep 16, 12:00 PM
    • 166 Posts
    • 646 Thanks
    mixu
    • #9
    • 13th Sep 16, 12:00 PM
    • #9
    • 13th Sep 16, 12:00 PM
    Thanks so much Coupon-mad, hugely grateful.

    So do you think your point on signage this works for this?

    http://forums.moneysavingexpert.com/showthread.php?t=4488337&page=118#2341

    And something like this for 'no standing' (point 3)?

    http://forums.moneysavingexpert.com/showthread.php?t=5521110&page=2#25

    And then along these lines for distance contracts?

    http://parking-prankster.blogspot.co.uk/2015/08/case-of-century.html

    The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 came into play in 2014. (This was after the Beavis case parking date, so this legislation was not considered by the Supreme Court). This contract is clearly a distance contract because the parties involved never meet directly, and communication occurs remotely (via the signage). The information required by these regulations is not present on the signage, and therefore the contract is not binding, according to the regulations...

    A ticket purchased via mobile phone or the web mean these regulations would apply, therefore the contract would then not be binding and no charge could be enforced.

    Thanks again!
    • Coupon-mad
    • By Coupon-mad 13th Sep 16, 5:36 PM
    • 40,626 Posts
    • 52,493 Thanks
    Coupon-mad
    Yes, that should certainly all work together. Show us how it looks all put into one appeal document (which you will submit under 'other' on the POPLA website, as an attached PDF 'full appeal' because the POPLA 2000 word count limit is hopeless). As explained by Umkomaas this morning:

    http://forums.moneysavingexpert.com/showthread.php?p=71296553#post71296553

    But show us your draft first, for final comments by the team of volunteer regulars here.

    HTH
    Last edited by Coupon-mad; 13-09-2016 at 5:38 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mixu
    • By mixu 13th Sep 16, 11:24 PM
    • 166 Posts
    • 646 Thanks
    mixu
    Your help is immensely appreciated!

    Any further opinions and/or amendments to this almost final draft are as ever gratefully received.

    Hope I've understood, as well as I can, the process here...




    Latest draft: 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. Frustration of contract
    2. No Keeper Liability
    3. Railway Land is Not ‘Relevant Land’
    4. No standing or authority to neither pursue charges nor form contracts with drivers
    5. The signs in this car park are not prominent, clear or legible from all parking spaces


    1. Frustration of contract


    The doctrine of frustration operates in situations where, due to subsequent change in circumstances, the contract is rendered impossible to perform, entitling the frustrated party to rescind the contract without paying damages. A text message was sent as payment — as stated as an acceptable form of payment in the terms and conditions. NCP’s technology provider failed on this occasion and therefore its system is responsible for the failure to process the requested payment

    A text message was sent on Wednesday 6 July at 8.16am requesting parking for the 6th and 7th of July. Unaware that Dash had failed to process the payment until the Penalty Charge Notice was received, the situation would obviously have been rectified the same day if a message had been sent saying there had been a problem processing payment.

    In this case, NCP’s technology provider has failed and its system is responsible for the failure to process the requested payment.

    The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 came into play in 2014. (This was after the Beavis case parking date, so this legislation was not considered by the Supreme Court).

    http://www.legislation.gov.uk/uksi/2013/3134/schedule/2/made

    This contract is clearly a distance contract because the parties involved never meet directly, and communication occurs remotely (via the signage). The information required by these regulations is not present on the signage, and therefore the contract is not binding, according to the regulations...

    A ticket purchased via mobile phone or the web mean these regulations would apply, therefore the contract would then not be binding and no charge could be enforced.


    2. No Keeper Liability

    The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.

    From the evidence provided to POPLA by the operator, I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The Protection of Freedom Act 2012 positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.

    Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:

    - POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
    - Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.

    As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the Protection of Freedom Act 2012 having been followed.


    3. Railway Land is Not ‘Relevant Land’

    The NCP operated car park at xxx London Underground station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises.

    The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)©. It says that “relevant land” means any land on which the parking of a vehicle is subject to “statutory control.”

    A Byelaw is a long-standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

    On the basis that Byelaws cover this station, it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.


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

    I do not believe that NCP has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its 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.

    I contend that NCP merely holds a basic licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent to car park users. I therefore require NCP to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits NCP to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

    For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.

    In addition, Section 7.3 of the CoP states:

    The written authorisation must also set out:
    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.


    5. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    http://imgur.com/a/AkMCN

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


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

    Yours faithfully
    • mixu
    • By mixu 10th Oct 16, 12:11 PM
    • 166 Posts
    • 646 Thanks
    mixu
    Both appeals successful!

    "Cancelled as a gesture of goodwill."

    Many thanks to you all — especially Coupon-mad (SchoolRunMum).

    Last edited by mixu; 10-10-2016 at 1:13 PM.
    • Coupon-mad
    • By Coupon-mad 10th Oct 16, 1:02 PM
    • 40,626 Posts
    • 52,493 Thanks
    Coupon-mad
    I think they were flummoxed! Well done, a great NCP railway/ pay-by-phone POPLA appeal example!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

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