NCP Incorrect Parking Charge

D_R_Williams

Hello,

I returned home on 23/10/2014 from a day in London.

I parked at the NCP Car Park at Hillingdon Station, paid the £6.20 for my ticket which expired at 02.59 on 24/10/14 and clearly displayed it on the driver’s side of the dash board.

When I returned at around 8.00 pm on the 23rd October 2014 I found a penalty charge on my windscreen – CP05217824 telling me I had not paid or displayed my ticket. Both not correct and I have the ticket with me now.

I telephoned NCP but was unable to get through to anyone with the authority or willingness to listen to emailed them with my complaint. Having heard nothing for a couple of weeks I received a letter telling me they had rejected my appeal on the basis that I had not displayed my ticket, but that I could appeal via POPLA, which I have done.

In my appeal to POPLA, which I copied to NCP, I have made the following points:



· The Car Park is covered by CCTY Cameras. Did you check to see me paying my car parking fee at 10.16 on the 23rd October 2014. I did suggest this in my email of 23rd and 24th October 2014. A copy of my ticket is attached showing that I paid.
· Does the camera cover all the car park. If so, have you checked to see me walking back to my car to place the ticket in the windscreen? Is the camera good enough to show me doing this?
· Your Parking Attendant No. 10069 issued the Parking Contravention Charge Notice at 15.45. I parked my car five and a half hours earlier. Can you tell me why, if I had not clearly displayed a ticket, the Parking Contravention Charge Notice was not issued earlier?
· How often do your Parking Attendants check the cars for correctly displayed tickets. Do you have evidence/records of the rota or schedule of the Parking Attendants for that day. There was certainly an Attendant checking when we left to catch the train soon after 10.16 am.
· Why, if I can prove I paid, and I can, by producing the ticket I bought at 10.16 on 23rd October 2014 and, in addition you can check on your
Cameras to see that I did pay, am I being asked to prove my innocence. In addition your cameras can see me clearly walking back to my car to display the ticket, so again, I ask, why am I having to prove my innocence. If my “crime”, according to your letter of today is one of not displaying my ticket, why am I walking back to the car after paying for the ticket, which is the opposite way to the station and resulting in me having to walk past the pay station, again, to reach the railway station. Again, you can see this on your cameras, if you look. The only reason I went back to the car was to display the ticket.

I have also made the point that my car is a Honda Civic which has effectively two dashboards. I placed my ticket on the flattest part of the dashboard, in front of the steering wheel with the information facing upwards. The attendant took photos of the car from the front of the car only and not from the driver’s side where the ticket was clearly visible.

I received a comprehensive pack from NCP on Saturday, enclosing my correspondence to them, their photographs and terms of conditions of their car parks.

I am now waiting to hear the result of the appeal to POPLA, but as I don’t really know who POPLA are and who they really represent, am concerned that they could rule against me.

I know I have done nothing wrong and would like to know what legal rights I have and how I should respond to them.


Roger Williams

Coupon-mad

Wow you are about to lose at POPLA with that argument.

Quickly show us the evidence pack from NCP and get ready to send an urgent email to POPLA to rebut what they have said and to say 'I PAID SO THERE WAS NO INITIAL LOSS AND THE CHARGE IS NOT A GENUINE PRE-ESTIMATE OF LOSS' (those words MUST be in your argument).

POPLA works well when you know the secrets, and we always beat NCP, but you won't with that factual account - that's not an appeal written about contract law issues (sorry but that's what you need). Start by reading this NCP POPLA appeal example to see what you should have said:

https://forums.moneysavingexpert.com/discussion/comment/65369960#Comment_65369960

If pushed for time to show us NCP's evidence pages as links (and you will have to change the http to hxxp to show us, as you are a Newbie) then pretty much copy that appeal into and email and call it your rebuttal (You do NOT have to copy in NCP). POPLA will share everything you send them, with NCP. So email a rebuttal with some decent arguments, to POPLA, with the 10 digit verification code and 'URGENT REBUTTAL OF EVIDENCE' in the subject line.

D_R_Williams

Thanks for your reply yesterday. I'm very grateful.
If I customise my letter using your format which you enclosed yesterday, can you check it for me to make sure it reads correctly - I don't want to make any claims that are incorrect or illegal.
You may well receive this message twice as I am quite useless with any technology!

Regards

Roger Williams

Coupon-mad

Yep just customise it into an email and do so urgently, seeing as the decision will be made soon. You can safely show what you intend to email to POPLA, here.

D_R_Williams

Hello Again,

I've altered your sample letter to reflect my particular issue. ie I paid and displayed the ticket correctly, but the Parking Assistant just didn't look in the right place on the dashboard.

If you can find the time, and I’m very grateful for your help so far, could you read the letter below bearing in mind the following:

• The Parking Assistant did supply photographs, but none taken from anywhere near the side of my car, so would have been impossible to see the ticket. I’ve therefore removed any reference to photographs?????
• I’m not sure of the reference in your sample letter to the land not being owned by NCP. I don’t know whether it is owned by Network Rail, NCP or someone else.
• I haven’t admitted I am the owner and/or driver of the vehicle.
•
If there is anything else which offends, needs tweaking or needs to be added, then please let me know.

Kind regards and thanks

Roger Williams




Dear POPLA Assessor,

I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1) No standing or authority to pursue charges nor form contracts with drivers. NCP have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require NCP to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this al-leged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

2) No visual evidence of the alleged contravention provided: Beyond the assertion of the NCP parking attendant, no evidence has been provided by NCP (i.e. a photograph of my vehicle showing the displayed parking permit) has been offered by NCP to support the PCN they have issued. In this case the onus surely falls to NCP to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend I paid and displayed and no contravention occurred.

3) No genuine pre-estimate of loss.
I would contest the parking charge as not being a genuine pre-estimate of loss on the following points:

i. The correct charge for the period in question, which I paid in full, was the Friday rate of £6.20 with the permit valid until 02.59 the following day (Saturday). The parking contravention charge of £100.00 is out of all proportion to any potential loss on the part of NCP and therefore does not represent a genuine pre-estimate of loss.

ii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quan-tifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

4) Unreasonable/Unfair Terms
I would assert that the charge being claimed by NCP is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of en-tering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put NCP to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between NCP and myself as driver.
As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver as to where the ticket should be displayed that an additional punitive charge would apply. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) NCP have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

I request that my appeal is upheld and for POPLA to inform NCP to cancel the PCN.
Yours faithfully,


D R Williams

Coupon-mad

I haven’t admitted I am the owner and/or driver of the vehicle.

You have admitted you were driving if you have already sent an appeal like the one you showed us in post #1:

' have you checked to see me walking back to my car to place the ticket in the windscreen? Is the camera good enough to show me doing this? ... Your Parking Attendant No. 10069 issued the Parking Contravention Charge Notice at 15.45. I parked my car five and a half hours earlier.

As for your queries:

• The Parking Assistant did supply photographs, but none taken from anywhere near the side of my car, so would have been impossible to see the ticket. I’ve therefore removed any reference to photographs???

I would include that fact as a separate point:
- the attendant did not take any photos from anywhere near the side of the car. My car is a Honda Civic which has, effectively, two levels to the dashboard due to the shape around the steering wheel. I placed my ticket on the flattest part of the dashboard, in front of the steering wheel with the information facing upwards. The attendant took photos of the car from the front of the car only and not from the driver’s side where the ticket was clearly visible. There was no contravention because the ticket was at all times, displayed 'on the dashboard' which is what is required by NCP.

• I’m not sure of the reference in your sample letter to the land not being owned by NCP. I don’t know whether it is owned by Network Rail, NCP or someone else.

It is never owned by NCP; the TOC (Train Operating Co) owns a station car park. So you can certainly say there is no standing as they are not the landowner. Expect NCP to respond with a final desperate effort, when POPLA share your evidence with them (you do NOT have to).

If you have already sent the POPLA appeal you wrote out above then you also need to change the introduction to the email to make it clear this is additional evidence in response to NCP's evidence pack, instead of this which makes no sense as a follow up email, really:

'I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;'

Obviously ensure the 10 digit verification code is in the email subject line clearly and correctly and words like 'URGENT REBUTTAL OF OPERATOR'S EVIDENCE AND ADDITIONAL SUBMISSION FROM THE APPELLANT'

Guys_Dad

In your case, I would add a short version of the fact that your ticket was displayed but the photos failed to cover the spot where they were and I would enclose a photo of the ticket. A photo of where it was and showing it from an angle that supports your case might help as well.

It can do no harm and it is all evidence should this get to court. I am 100% in favour of the technical appeal, but when the PPC operative and the PPC themselves have acted less than fairly, then telling POPLA with proof does no harm.

Your initial sentence should be "There was no contravention. The ticket was displayed on the dashboard, but the PPC operative took a photo that failed to cover the relevant area - zsee attached photographs.."

Parking-Prankster

Agree with guys dad. Start off with explaining no contravention took place and include the photos both of your ticket and your car dashboard to show why the operator photos are invalid.

D_R_Williams

Hi Again,

I've tweaked the letter as per your advice. Does it need anything else, or can I now send it to POPLA

Regards

Roger Williams

Email Title: URGENT REBUTTAL OF OPERATOR'S EVIDENCE AND ADDITIONAL SUBMISSION FROM THE APPELLANT

Parking Contravention Charge Notice: CP05217824
Verification Code for the Independent Appeals Service: 4363154145

Dear POPLA Assessor,

I am the registered keeper and driver of the vehicle above and am providing additional evidence in response to NCP's evidence pack which I received recently. I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1) No standing or authority to pursue charges nor form contracts with drivers. NCP have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require NCP to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

2) No visual evidence of the alleged contravention provided: Beyond the assertion of the NCP parking attendant, no evidence has been provided by NCP other than photographs taken of my car from the front only. The attendant did not take any photos from anywhere near the side of the car. As my car is a Honda Civic which has, effectively, two levels to the dashboard due to the shape around the steering wheel. I placed my ticket on the flattest part of the dashboard, in front of the steering wheel with the information facing upwards. The attendant took photos of the car from the front of the car only and not from the driver’s side where the ticket was clearly visible. There was no contravention because the ticket was at all times, displayed 'on the dashboard' which is what is required by NCP.
Nothing else has been offered by NCP to support the PCN they have issued. In this case the onus surely falls to NCP to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend I paid and displayed and no contravention occurred.

3) No genuine pre-estimate of loss.
I would contest the parking charge as not being a genuine pre-estimate of loss on the following points:

i. The correct charge for the period in question, which I paid in full, was the Friday rate of £6.20 with the permit valid until 02.59 the following day (Saturday). The parking contravention charge of £100.00 is out of all proportion to any potential loss on the part of NCP and therefore does not represent a genuine pre-estimate of loss.

ii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quan-tifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

4) Unreasonable/Unfair Terms
I would assert that the charge being claimed by NCP is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of en-tering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put NCP to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between NCP and myself as driver.
As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver as to where the ticket should be displayed that an additional punitive charge would apply. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) NCP have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

I request that my appeal is upheld and for POPLA to inform NCP to cancel the PCN.
Yours faithfully,


D R Williams

Guys_Dad

I would move this to the 1st point rewriting it as suggested

1) No contravention occurred.
The ticket was displayed on the dashboard, but the PPC operative took a photo that failed to cover the relevant area - see attached photographs.

A ticket was purchased and displayed as per the requirements of the site.

Beyond the assertion of the NCP parking attendant, no evidence has been provided by NCP other than photographs taken of my car directly from the front only. The attendant did not take any photos showing the lower dashboard from an angle, where the ticket was visible.

My car is a Honda Civic which has, effectively, two levels to the dashboard due to the shape around the steering wheel. I placed my ticket on the flattest part of the dashboard, in front of the steering wheel with the information facing upwards. The attendant took photos of the car from the front of the car only and not from the driver’s side where the ticket was clearly visible. I attach a photograph illustrating what I mean and a copy of the ticket that I purchased,

There was no contravention because the ticket was at all times, displayed 'on the dashboard' which is what is required by NCP.
Nothing else has been offered by NCP to support the PCN they have issued. In this case the onus surely falls to NCP to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend I paid and displayed and no contravention occurred.................................

Then renumber the threads and enclose photographs of the ticket and illustrative picture