New Generation Parking Management - Capital Retail Park Cardiff - POPLA Appeal

Mantis01

Hi,

Have been studying the site for the past few weeks, was sent a PCN by post after parking in the Capital Retail Park on Saturday 18th October. Was told by a friend and regular Cardiff fan I would be fine to do this as he does it all the time (Wish I hadn't listened now!!). Had some food, watched the game, returned to the car and went home.

The notice states on "matchdays" the parking allowance reduces to 90 minutes so I have overstayed the time limit, even worse after some food/look round the shops we have stayed over the normal 3 hour limit, but only just.

I submitted the soft appeal draft on here to them and they rejected it and have issued my POPLA code. I am in a real state of confusion over what to write to POPLA.

I have noticed these points come up regularly on POPLA appeals:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate

I was going to base my appeal around them but I am really struggling with what to say about it, I can find lots of examples for other companies but not any letters to NGP about plain overstaying like I did. I see a few about parking in disabled bays etc but this is obviously different.

Also, on their appeal rejection letter they state that:

"The company are not looking to reclaim loss or damages the charge is a tariff"

So does this make my first point invalid? I want to use some examples I've seen on here but I imagine these PPC are wising up and changing the way they do things to invalidate things that would have helped the appeal in the past.

Any advice/help would be gratefully recieved! Appreciate this is my first post on this site etc, but some of the stuff I have read on here has been helpful over the years so even though people might not contribute I can speak from experience when I say the stuff on here is appreciated.

Coupon-mad

Also, on their appeal rejection letter they state that:

"The company are not looking to reclaim loss or damages the charge is a tariff"

Can you get any pics of the signs? We'd like to see if this argument is true, because if they have really worded it as a tariff then you have to word your POPLA appeal a bit more cleverly than normal!

Please also post a scan or photo of the Notice to Keeper that came in the post (both sides). Cover your car reg & name/address and PCN number, but NOT the dates & details.

To post links you must change the http to hxxp.

Mantis01

Thanks Coupon mad,

I will try and get to the retail park tonight and photograph the sign. I have until the 11th to submit my appeal so will get a photo up asap.

Will scan PCN tonight at home as well.

Mantis01

Attached are the images of the front and back of the PCN, and also the sign which is a bit blurry when uploaded but I have added the wording below.

PCN Front

hxxp://postimg.org/image/f9t4rervz/

PCN Back

hxxp://postimg.org/image/n2b5meesh/

Car Park Sign

hxxp://postimg.org/image/9ncxbndvv/

The sign reads:

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Private Property
Terms & Parking Tariff Apply
This site is regularly patrolled - tariffs apply 24/7

Parking Tariff if vehicle is parked as detailed below - £100.00
Per or part day
Reduced to £60 if paying within 14 days of the parking invoice issue date
Parking tariff if vehicle is parked with permission from NGP - FREE

Terms and Conditions of use
By parking on this private land you are entering into a contract with New Generation Parking Management ltd (NGP)
The following contractual terms and tariffs apply. Please do not park here unless you fully understand and agree to the terms and conditions set out below. Vehicle keepers should be aware that their name and address may be requested from the DVLA and a Parking Tariff Notice may be issued to them through the post.

3 Hours free parking (No return within 2 hours)
Restriced to 90 minutes on matchdays
Capital Retail Park customers only

Parking terms subject to £100 tariff

1. Those parking vehicles on site and visiting the football stadium
2. Vehicles exceeding 3 hours max stay restricted to 90 minutes max stay on matchday
3. Parking, Stopping or Waiting in disabled bays not displaying a valid UK/EU Disability Parking Permit clearly displayed on the vehicles front windscreen/dashboard. Please note it is the drivers/badge holders responsibility to ensure the badge is clearly displayed after securing the vehicle.
4. Failing to display a valid UK/EU disability parking permit if asked to do so by an NGP Civil Enforcement Officer.
5. Not being accompanied by a Disability Badge holder when parking in the disabled bays.
6. Parking, stopping or waiting on double yellow lines.
7. Any Heavy Goods vehicles (HGV's) parking on site
8. Parking vehicles and leaving site with the intention of returning and using one of the facilities.
9. Customers who have parked vehicle in this car park and leave the site on foot.
10. Vehicles parked on ramps, roadways, pavements, hatched or grassed areas or not in marked parking bays.
11. Parking in the Parent and Child bays with the absence of any children

Payment terms will be detailed in the Parking Tariff Notice issued. Outstanding tariffs will be passed over to our debt recovery team and additional charges may be incurred. Court proceedings may also be initiated.

This private land/car park is managed by New Generation Parking Management ltd (NGP)

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Would really appreciate any advice/help!

Fruitcake

PCN Front

http://postimg.org/image/f9t4rervz/

PCN Back

http://postimg.org/image/n2b5meesh/

Car Park Sign

http://postimg.org/image/9ncxbndvv/

Items 3 and 4 in your post above breach the EA2010 in my humble opinion.

Coupon-mad

The sign is 'trying hard' to be a tariff but you cannot possibly agree to park in breach - such as in a disabled bay or ramp - for £100 fee so this is not a genuine price term at all. And the NTK makes it clear the charge is in fact for 'breach of the terms & conditions'.

Your POPLA appeal should be a bit like this one as the NTK has missing wording which is in some ways similar to this case:

https://forums.moneysavingexpert.com/discussion/5098424

It is up to you to compare the NTK to paragraph 9 of the POFA. It's flippin easy to do as well, but that's for you to check. If you ask where to find paragraph 9 of the POFA then you haven't read the link, nor the NEWBIES thread...so have a look and compare your NTK, and also click on 'How to win at POPLA' in post #3 of the Newbies thread.

And the signs are not clear about these 'matchdays', how on earth is a customer supposed to know, if you are a customer doing your shopping?

And the charge isn't a GPEOL but you'll learn about that from the other POPLA examples you read.

Mantis01

Thanks both, I have taken a large chunk of that POPLA appeal above (I assume it took a large chunk of others before it so hope this is ok), reworded the bits that apply to me and added some specifics relating to the car park I was in and the photos of my car, as well as my NTK.

What do you reckon?

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1. This charge is not a genuine pre-estimate of loss.

£100 is a sum seemingly 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require NGP to explain their new calculations behind this charge. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.

In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated:

“However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If NGP presents what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put NGP to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:

''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other.In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as NGP made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

I contend that the figure of £100 is a penalty clause ‘in terrorem’ to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2. No standing/authority to form contracts with motorists

NGP has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non compliant) signage and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the principal, NGP has negative responsibility and no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA CoP.

I put NGP to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that NGP can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows NGP to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that NGP can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).

In order to pursue Keeper Liability under the POFA, NGP must have met the strict conditions in the Act. However, they have failed to fulfill the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act, which reads in part:

(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(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;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;

The NTK fails due to the following reasons:
The following points may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(In reference to a) The 'period of parking' is not 'specified', only a ‘date of event’ which displays one time, no indication if this is entry or exit. In fact there's no evidence of parking at all.

(In reference to b) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking (a period which is not specified) and that the parking charges have not been paid in full;

(In reference to c) Again no period has been specified. It’s also not sufficient to say ‘The terms and conditions of parking which the driver of the vehicle agreed to be bound to, upon entering the Private Property, were clearly displayed in prominent places within the site’ This does not state the means by which the requirement was brought to the attention of the driver.

(In reference to e, f & h) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'. As the NTK fails to identify a creditor it also fails to provide an address of the client/landowner, since this Operator is an agent. This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wordings in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

4. Unclear and Non-compliant signage, which created no contract with the driver, who did not see any signs.

The BPA CoP at Appendix B sets out strict requirements for entrance signage, including:

"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "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. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

The signs on this site are sparse in comparison to the size of the site. They are also positioned at angles that would require the driver of a vehicle to look away from the road and upwards, due to the height of them. The background colour of blue is one specifically referenced as “not easy to read” in the Code of Practice above. The font used on the signs terms and conditions is of a small nature and are ambiguous. There is no definitive explanation of the term ‘matchday’ which sees a reduction in the allowed free parking time. NGP have made no explanation of the term and cannot expect customers to be familiar with what may constitute a ‘matchday’. The signage is not lit or reflective (again referenced in the CoP) and is not so prominent that it 'must' have been seen among the myriad clutter of signs and information in a busy retail area. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.

The sign makes the statement ‘By parking on this private land you are entering into a contract with New Generation Parking Management ltd (NGP)’, there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with NGP in this case.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

5. ANPR records are unreliable and not proof of one parking event.

The charge is founded entirely on six photos of my vehicle. The first of which does not even contain my car. My car is white and the photograph contains three vehicles, none of which are mine. This would suggest an issue with the ANPR cameras at the site. The second of which is to dark and doesn’t show anything. There are two, which are again very dark, but the licence plate of my car is visible, however neither shows the activity of the car, and a further two showing a close up of my license plate. NGP show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than the allowed time. There is a petrol station on site, as well as air and water, so I put NGP to strict proof of actual parking for over 90 minutes with no other petrol station-related activity or queuing to enter/exit site. Even if the car first drove past the cameras and through the car park the driver may have decided to get petrol whilst the passengers were in the retail area and so 'parking' for over two hours would not have occurred. So I require NGP to rebut these assertions.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:

The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

I put NGP to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

Since I am merely the registered keeper, I have no evidence to discount the above possibilities.

In addition, the BPA CoP contains the following in paragraph 21:

''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

NGP fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

Coupon-mad

That is good and it will win!

I just spotted a couple of errors which were not yours, but should be put right:

''The fact that some of this information may be able to be implied by a reader familiar with the legal context''

should be

''The fact that some of this information may be able to be inferred by a reader familiar with the legal context''

And this bit should be changed as I assume this wasn't also a petrol station, or am I wrong about that. This bit was written originally by me, about a Motorway Services:

queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than the allowed time. There is a petrol station on site, as well as air and water, so I put NGP to strict proof of actual parking for over 90 minutes with no other petrol station-related activity or queuing to enter/exit site. Even if the car first drove past the cameras and through the car park the driver may have decided to get petrol whilst the passengers were in the retail area and so 'parking' for over two hours would not have occurred. So I require NGP to rebut these assertions.

Mantis01

That's good to know, thanks very much for your help coupon mad.

There was a petrol station in the retail park but if you think it's ok without I will remove that part because I was unsure if it was part of the managed site.

Really appreciate the help I've found on here!

Coupon-mad

I would remove that bit as petrol stations areas are usually separated at retail parks.

Mantis01

Will do. Will update you on the outcome!