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  • FIRST POST
    • The Leopard
    • By The Leopard 8th Sep 17, 9:00 AM
    • 33Posts
    • 13Thanks
    The Leopard
    NCP notice to keeper
    • #1
    • 8th Sep 17, 9:00 AM
    NCP notice to keeper 8th Sep 17 at 9:00 AM
    Hello

    Just arrived back from being away to a notice to keeper from NCP. Having spoken to the driver they paid for parking but on closer inspection of the receipt they put the wrong number plate into the machine (the one they use more regularly out of habit). The machine didn't identify the vehicle so they had to input the entry time. Put in and paid for an hour but looking at the notice they had arrived 20 minutes earlier than they thought and the ANPR will have picked up a different car going in and out and no payment received for that vehicle.

    This is a genuine error and will be appealed. I've read through the newbies thread over the past day or so and I am clear around not identifying the driver and appealing as the registered keeper but have a couple of questions:

    1) I use the blue text in the newbie thread for the appeal to NCP? Do I go into anymore detail than what is in the text at this stage?
    2) I'm unclear on the 14 day point. The 'incident' happened on the 18th August, notice was posted on 31st August and the 'date notice is given' is 4th September. What does it mean for this appeal that the earliest this notice could have been received was over 14 days after the incident or is this irrelevant?

    Thank you.
Page 1
    • Quentin
    • By Quentin 8th Sep 17, 9:04 AM
    • 33,260 Posts
    • 17,197 Thanks
    Quentin
    • #2
    • 8th Sep 17, 9:04 AM
    • #2
    • 8th Sep 17, 9:04 AM
    Follow the advice in the newbies FAQ thread and send the appeal there as is.
    • The Leopard
    • By The Leopard 8th Sep 17, 9:50 AM
    • 33 Posts
    • 13 Thanks
    The Leopard
    • #3
    • 8th Sep 17, 9:50 AM
    • #3
    • 8th Sep 17, 9:50 AM
    Thanks Quentin. Should I add anything about the notice arriving provably later than 14 days after the incident as they call it so keeper liability isn't possible... or stop considering the detail too much and just send the blue text... as you've said?

    Just for clarity re the blue appeal text. They know who the registered keeper from the DVLA as they have sent the letter so I don't understand the point around them getting more information in relation to the vehicle -what else could they want? The keeper and the registered keeper are the same thing right?

    Thank you
    • Coupon-mad
    • By Coupon-mad 8th Sep 17, 9:56 AM
    • 51,536 Posts
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    Coupon-mad
    • #4
    • 8th Sep 17, 9:56 AM
    • #4
    • 8th Sep 17, 9:56 AM
    They know who the registered keeper from the DVLA as they have sent the letter so I don't understand the point around them getting more information in relation to the vehicle
    Doesn't matter, makes no difference (and people ask this all the time). Send it 'as is', pat of the reason is because they will recognise you are on MSE. Keeper is usually the registered keeper but I worded the appeal to cover both, so use either term.

    Use it as it is, no need to go into detail about the dates at this stage. It already says you must either cancel, 'or issue a POPLA code and rely on the POFA' and that bit is written deliberately because these firms know they can't and are stuffed.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • The Leopard
    • By The Leopard 21st Sep 17, 9:21 AM
    • 33 Posts
    • 13 Thanks
    The Leopard
    • #5
    • 21st Sep 17, 9:21 AM
    • #5
    • 21st Sep 17, 9:21 AM
    Received a response from NCP. Appeal rejected and have a POPLA code so I'll look through post 3 on the FAQ thread and begin pulling together an appeal. Can I post back on here for it to be critiqued pleased?!
    • Guys Dad
    • By Guys Dad 21st Sep 17, 10:30 AM
    • 10,203 Posts
    • 9,348 Thanks
    Guys Dad
    • #6
    • 21st Sep 17, 10:30 AM
    • #6
    • 21st Sep 17, 10:30 AM
    If you want to use "out of time", then as long as you haven't declared who the driver was, it's a possibility.

    Can you give date of contravention and date on NtK (not date you received it)? And just confirm that you are the registered DVLA keeper and no lease/hire involved.
    • The Leopard
    • By The Leopard 21st Sep 17, 11:01 AM
    • 33 Posts
    • 13 Thanks
    The Leopard
    • #7
    • 21st Sep 17, 11:01 AM
    • #7
    • 21st Sep 17, 11:01 AM
    Appealed as the keeper, not driver, and not indicated who the driver is, using the blue text in the FAQ thread. The incident took place on 18th August, date sent shown as 31st August and date notice is given is 4th Sept. That's 17 days after the incident (not including the date it occurred). Would the bank holiday make any difference here re out of time? Thank you.
    • The Leopard
    • By The Leopard 21st Sep 17, 11:03 AM
    • 33 Posts
    • 13 Thanks
    The Leopard
    • #8
    • 21st Sep 17, 11:03 AM
    • #8
    • 21st Sep 17, 11:03 AM
    The car is on a pcp, is that what you mean, or are you referring to a hire car?
    • Coupon-mad
    • By Coupon-mad 21st Sep 17, 11:55 AM
    • 51,536 Posts
    • 65,142 Thanks
    Coupon-mad
    • #9
    • 21st Sep 17, 11:55 AM
    • #9
    • 21st Sep 17, 11:55 AM
    Appealed as the keeper, not driver, and not indicated who the driver is, using the blue text in the FAQ thread. The incident took place on 18th August, date sent shown as 31st August and date notice is given is 4th Sept. That's 17 days after the incident (not including the date it occurred). Would the bank holiday make any difference here re out of time? Thank you.
    Originally posted by The Leopard
    No, the Bank Holiday in the middle makes no odds as it was posted after that.

    But yes, you are right with that ''date given'' and the PCN was posted too late.

    So that and a quote from the relevant section of Schedule 4 will be the first part of your appeal to POPLA, followed by the usual templates in the NEWBIES thread post #3.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • The Leopard
    • By The Leopard 21st Sep 17, 12:38 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    Thank you. Will crack on with this and post back on here.

    There is actually a reciepted payment for parking but the wrong license plate was entered and the time then estimated hence it not showing up on NCPs records. Is it worth including this in the POPLA appeal or just stick to the various sections you've highlighted?
    • Coupon-mad
    • By Coupon-mad 22nd Sep 17, 12:37 AM
    • 51,536 Posts
    • 65,142 Thanks
    Coupon-mad
    Not worth it, POPLA don't care about that and will consider it breach of contract, because they are (sadly) very narrow in their template remit.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • The Leopard
    • By The Leopard 22nd Sep 17, 4:22 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    Hi, I'm struggling to post my crack at this - any ideas why it's not letting me post? I'm copying and pasting from a word doc and it's around 9 pages... So too big?

    • KeithP
    • By KeithP 22nd Sep 17, 5:25 PM
    • 4,494 Posts
    • 2,813 Thanks
    KeithP
    Hi, I'm struggling to post my crack at this - any ideas why it's not letting me post? I'm copying and pasting from a word doc and it's around 9 pages... So too big?

    Originally posted by The Leopard
    Try splitting it into two posts.
    .
    • The Leopard
    • By The Leopard 22nd Sep 17, 6:56 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    Tried that Keith but it wasn't having it. Then got a message saying my IP address had been banned, not sure why? Will tether from my phone later this evening and hopefully that will work and allow me to upload and try again as I'm sending this direct from my mobile, not laptop.
    • Redx
    • By Redx 22nd Sep 17, 7:01 PM
    • 16,559 Posts
    • 20,711 Thanks
    Redx
    see the recent post by an MSE admin about this issue

    DO NOT COPY DIRECT FROM WORD as this can cause an IP address to be banned due to perceived spamming issues

    copy from word into notepad FIRST, then split it into suitable parts , then post each part from notepad in a separate post , so splitting it into several posts from notepad
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • The Leopard
    • By The Leopard 22nd Sep 17, 8:32 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    Copied into notepad-hopefully formats ok to read on here, thanks Redx


    To whom it may concern:
    I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from National Car Parks Limited (NCP) for an alleged infringement taking place in …..
    I submit the points below to show that I am not liable for the parking charge:
    1. Notice to Keeper (NTK) is non-compliant with POFA 2012.
    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
    3. 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.
    4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    5. Beavis case not relevant
    --------------------------------------------------------------------------------------------------------------------------------------
    1. Notice to Keeper (NTK) is non-compliant with POFA 2012.
    The NTK was not received within the relevant timeframe and is therefore not compliant with POFA 2012. The alleged infringement occurred on 18/08/2017 and from my understanding of Schedule 4 of POFA 2012, paragraph 9, the NTK was required to reach me by 01/09/2017 as the relevant period as outlined by POFA 2012 is 14 days beginning with the day after that which the specified period of parking ended. However, the date this notice was given is shown on the NTK as 04/09/2017 and 17 days after the incident occurred. Therefore there can be no keeper liability.
    The relevant wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
    (4)
    The notice must be given by—
    (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
    (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
    (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
    Additionally, the "period of parking" is not specified, just the date and time of the ‘incident’. The latter, a time of 11.21 and being a single instant, does not give any information as to whether the driver was given enough time to consider the contract. The single photograph of the vehicle reproduced in the NTK contains miniscule and illegible text in the top left hand corner, presumably intended to show date/time information. As such, the duration of the parking period has not been stated. As keeper I cannot discount that the driver may have driven in, realised payment was required, and then driven out after.
    The relevant wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
    (2)
    The notice must—
    (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates
    Furthermore, no assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right, following a 'notice to keeper'. Henry Gleenslade, the previous Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4:
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”
    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper I am the appellant throughout (as I am entitled to be). There has been no admission regarding who was driving, no evidence has been produced by the operator, and it has been held by POPLA on numerous occasions that a parking charge cannot be enforced against a registered keeper without a valid NTK. In this situation, NCP have neither complied with nor met the keeper liability requirements. Therefore, there is no keeper liability.
    Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade, the POPLA Lead Adjudicator in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
    • The Leopard
    • By The Leopard 22nd Sep 17, 8:33 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
    In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
    Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
    Understanding keeper liability:
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


    3. 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.htm l
    ''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.
    • The Leopard
    • By The Leopard 22nd Sep 17, 8:34 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    As NPC does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
    7.3 The written authorisation must also set out:
    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. Beavis case not relevant.
    As regards the location of the car park, the interests of the operator, there is no comparison with the Beavis decision. The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term, and this case can easily be distinguished from ParkingEye v Beavis.
    The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that UKPC made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:
    “97
    a The need to provide parking spaces for their commercial tenants prospective customers
    b The desirability of that parking being free so as to attract customers
    c The need to ensure a reasonable turnover of that parking so as to increase the potential
    number of such customers
    d The related need to prevent `misuse' of the parking for purposes unconnected with the tenant’s business, for example by commuters going to work or shoppers going to o-park premises
    e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”
    In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the operator has made no loss and the charge is a penalty. The vehicle was fully entitled to park as it did.
    The operator has no legitimate interest in enforcing this charge, their only interest is to seek to profit from an inadvertent error. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.
    “The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”
    The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not, as the operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.
    It is difficult to imagine a more obvious Unfair Contract Term when all manner of reasons could cause such a momentary oversight. No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.
    The sum of £100 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering was key. If a driver can't read the sum of the parking 'charge' (the £100 in this case) before parking, because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat, then they cannot have agreed to it.
    The Beavis decision is not a silver bullet, not for any operator, including NPC, and not for UKPC. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY. It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.
    I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:
    ''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.
    Yours sincerely
    R Reeve
    POPLA Administrative Team “
    The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' (which I am not arguing, in fact) automatically supersedes all other points of appeal about other parking charges in other car parks.
    It certainly does not 'supersede' all other points, is not a silver bullet and each case must still turn on its own facts.
    The burden now shifts to NPC (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs, the Beavis case does not assist them at all.
    This concludes my POPLA appeal
    Yours faithfully,
    • The Leopard
    • By The Leopard 22nd Sep 17, 8:38 PM
    • 33 Posts
    • 13 Thanks
    The Leopard
    Any thoughts are very welcome - it's mainly lifted from templates and another NPC POPLA appeal by Ashmil I believe.
    • KeithP
    • By KeithP 22nd Sep 17, 8:47 PM
    • 4,494 Posts
    • 2,813 Thanks
    KeithP
    NCP is spelt wrongly at least three times in that appeal.
    .
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