Ncp refused appeal

dollypeeps

this is my first draft


I am appealing against the PCN no XXxxxxxxxx on the following grounds



1 That your claim is not a Genuine Pre-Estimate of Loss

The car parking fee for 24 hours was £7.30 on 7thDecember 2013 and this was paid for in full at 8.19am. On the date of theclaimed loss, the car park was not at 100% capacity and there was no physical damagecaused. There cannot have been any lossfrom this incident. Neither can NPClawfully include their operational day to day running costs in any “loss”claimed. I contend there can be no loss whatsoever; nopre-estimate (prior to starting to charge for breaches at this site) has beenprepared or considered in advance.

[FONT=Verdana2 CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE ANDNO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

NPC do not own this car park and are assumed to be merely agents for theowner or legal occupier. In their Notice and in the rejection letters, NPC havenot provided me with any evidence that it is lawfully entitled to demand moneyfrom a driver or keeper, since they do not own nor have any interest orassignment of title of the land in question.

I would also request that POPLA to please check whether NPC haveprovided a full copy of the actual contemporaneous, signed & dated contractwith the landowner/occupier (not just a signed slip of paper saying it existsor someone has witnessed it) and check that it specifically enables thisOperator to pursue parking charges in their own name and through the courtsystem. I say that any contract is not compliant with the requirements set outin the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enterinto a contract with a driver of a vehicle parking in the car park, or indeedthe legal standing to allege a breach of contract. I refer the Adjudicator tothe recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was todetermine the actual nature of Private Parking Charges. It was stated that:"If those charges are consideration for a supply of goods or services,they will be subject to VAT. If, on the other hand, they are damages they willnot be." The ruling of the Court was that "I would hold, therefore,that the monies that VCS collected from motorists by enforcement of parkingcharges were not consideration moving from the landowner in return for thesupply of parking services." In other words, they are not, as the Operatorasserts, a contractual term. If they were a contractual term, the Operatorwould have to provide a VAT invoice, to provide a means of payment at the pointof supply, and to account to HMRC for the VAT element of the charge. TheAppellant asserts that these requirements have not been met. It must thereforebe concluded that the Operator's charges are in fact damages, or penalties, forwhich the Operator must demonstrate his actual, or pre-estimated, losses, asset out above.



4NO CONTRACT WITH THE DRIVER

There is no contract between NPC and the driver, but even if there was acontract then it is unfair as defined in the Unfair Terms in Consumer ContractsRegulations 1999.. So the requirements of forming a contract such as a meetingof minds, agreement, certainty of terms, etc, were not satisfied.

5 NOT GIVENTHE THE CORRECT TIME TO APPEAL

Theverification code xxxxxxxxxx was generated by NCP on Tuesday 31stDecember 2013. The appeal rejection letter from NCP was dated Thursday 2ndJanuary 2014 and received on Saturday 4th January 2014. Therefore I informyou that I have not been given the full 28 days to appeal, to which I amentitled under the BPA code of practice.


Given the above points, I request that PCN numberXXxxxxxxxx is rescinded and that letters of confirmation are sent to NCP and tothe above address as verification that this case has been overruled

yours sincerely


I would be really grateful if someone could look over it for me please

karen

spacey2012

TMA 2004 is not relevant to a contractual parking charge notice, it is concerned with Real penalty charge notice like council ones which these micky mouse fake ones copy.

dollypeeps

so should i delete that point altogether or just that part where its states from " i quote.....to public interest"
sorry to ask that but i am finding it more difficult to understand than i realised
karen

Coupon-mad

I would get rid of all this wording, all of point #1 because I can't see the advantage in sending POPLA a P&D ticket that doesn't help the situation:




''1 That the contravention did not occur

I enclose a copy of the ticket for the date and time of thecontravention. The date and time isvisible on said ticket. I argue that it was paid and displayed in good faithand that as such discretion should be exercised.

I quote form paragraph 85 from the Secretary of States Statutory guidance, which is given legal clout by section 87 of the Traffic Management Act 2004:
87 an authority has a discretionary power to cancel a PCN at any point throughout the CPE process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case. Under general principles of law, authorities have aduty to act fairly and proportionality and are encouraged to exercise discretion sensibly and reasonably with due regard to public interest.''




And remove this paragraph as it's confusing and adds nothing you haven't already got:


''The charge that was levied was punitive and therefore voidagainst me. The initial charge is arbitrary and in no way proportionate to anyalleged breach of contract. Nor does it equate to the charges of £7.30 for 24hrparking. This is all the more so for the additional charges which NCP statesaccrues after 28 days of nonpayment. This would also apply to anymentioned costs incurred through debt recovery unless it followed a courtorder. I would question that if a chargecan be discounted by £25 (from £60 to £35) for payment within 14 days that itis unreasonable to begin with.

spacey2012

I would not worry about detail at this appeal stage, they will reject it anyway, keep it simple all you are after is a popla code, keep your powder dry for POPLA

Coupon-mad

I think they are at POPLA stage as per post #1, I just thought the same as you and checked above...


To Dollypeeps, does the NTK mention the Protection of Freedoms Act 2012 on front or back, anywhere or not? Also does it actually use the words 'Keeper liability' or not?

dollypeeps

thank you both i will delete point 1.
does the rest of it make sense?
i have included the popla code at the bottom and stated that they havent given me the correct/enough days to appeal.

karen

Coupon-mad

I was thinking you need more, such as the usual 'unclear signage' paragraph as it doesn't matter a hoot whether you have checked the signs...it forces them to have to produce photos & maps that they might get wrong. And unclear signage leads to you saying there was no contract formed with the driver because the ticket was displayed on the dashboard all along so there was no acceptance of the 'signage term' about non-display, even if it was seen by the driver which you contend was not the case as its terms are not prominent enough.

spacey2012

Dont Mistake POPLA with fair and honest people.
They are not.
They regularly rule against motorists who have paid for parking yet had bogus tickets.
They appear to follow the principle that a parking companies word is worth twice that of a motorists.

They will allow appeals where they are backed in to a legal corner, so stick with the working legal points on GPEOL and include any costs issued are operation costs claimed against tax.

dollypeeps

thank you spacey i think ive done that point 2 and 3

karen