Window Screen Ticket Issued - Now received NTK... Advise please?

Umkomaas

totallytech wrote: »

Hi Coupon-Mad,
I've been looking and looking but there is no clear template on MSE since its been removed now. I'm reading the forums and checking the latest posts to see if anyone is using a newer template than mine however most that I've seen mention No Creditor identified on the Notice to Appellant. Do you happen to have a template that I can adjust to fit for mine? I'm down to 7 days before Popla expires.

Thanks

Have a look here:

http://forums.moneysavingexpert.com/showpost.php?p=62180281&postcount=15

By the way, there is no such document as a Notice to Appellant, Notice to Keeper (NtK) most certainly, but no NtA - don't use that term as it will identify you as being in unfamiliar territory.

totallytech

Thank you, I've found a much newer Popla appeal.

Because I've already found the failure to display the AOS logo inside the P correctly (as per appendix b) I will be visiting the car park shortly to check the size of the fonts etc match the BPA CoP for the signage but I'm hoping this should be enough

What do you think to this?

Dear POPLA Assessor,
As the registered keeper of vehicle registration XXXX XXX, I am appealing against parking charge number XXXXX using POPLA verification code XXXXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCNs
4. Unlawful penalty charge
5. Proof of planning consent for current parking conditions and chargeable regime
6. Non-compliant Notice to Keeper
7. Summary

1. Non genuine pre-estimate of loss.
The amount of £100.00 demanded by Norfolk Parking Enforcement Ltd is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.
Norfolk Parking Enforcement Ltd has provided no breakdown of how the sum of £100 has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Norfolk Parking Enforcement Ltd cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.
Given that Norfolk Parking Enforcement Ltd charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.

2. No contract between driver / Inadequate signage.
As a POPLA Assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”. Norfolk Parking Enforcement Ltd must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place. Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
Due to their high position and the barely legible size of the small print, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that Norfolk Parking Enforcement are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I also note that as per Appendix B of the BPA Code of Practice that the AOS logo is not correctly placed in the P symbol.
I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they ‘must’ have been seen by the driver — who would never have agreed to pay £100 in a free car park — and, therefore, I contend the elements of a contract were conspicuous by their absence.

3. Flawed contract with landowner/Authority to issue PCNs.
The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

Norfolk Parking Enforcement Ltd does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Norfolk Parking Enforcement Ltd has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper. I put Norfolk Parking Enforcement Ltd to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract. I demand Norfolk Parking Enforcement Ltd produce to POPLA the contract between the landowner and the Norfolk Parking Enforcement Ltd.

4. Unlawful penalty charge.
Norfolk Parking Enforcement Ltd cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils. Norfolk Parking Enforcement Ltd could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.

5. Proof of planning consent for current parking conditions, chargeable regime and ANPR system.
Some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions and chargeable regimes. I put Norfolk Parking Enforcement Ltd to strict proof to provide evidence that it has the necessary planning permissions/consent from the local authorities for the current parking conditions and chargeable regimes that are used on the site in question.

6. Non-compliant Notice to Keeper.
The Notice to Keeper sent by Norfolk Parking Enforcement Ltd to myself is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made. Norfolk Parking Enforcement Ltd has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

7. Summary.
On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Yours faithfully

totallytech

Coupon-mad wrote: »

That's a really old template and not a very good one for POPLA stage, a load of the appeal is a waste of time. There is no such thing as a 'Notice to Appellant'.

You need a better template than that and a better breakdown of why the NTK is not compliant, not just saying it fails to identify the creditor which is just about the weakest point you could focus on when saying 'no keeper liability'. Compare the NTK to paragraph 8 of Schedule 4 and blow by blow point out to POPLA where the points in paragraph 8 are not in the NTK. It's easier than it sounds, really simple (look at the NTK, is the wording from 8.1 there, nope, next bit, 8.2, is the wording there, nope...etc.).

Can I check - Are you talking about this information?

8 (1) A notice which is to be relied on as a notice to keeper for the purposes of Paragraph 6(1)(a) 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) state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d) if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is:
(i) specified in the notice to keeper, and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see subparagraph (4)); BRITISH PARKING ASSOCIATION CODE OF PRACTICE 33
(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, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given:
(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).
(3) The notice must relate only to a single period of parking specified under subparagraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(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 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales
(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes:
(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

The trouble is, that the NtK does say everything in this section, It states the car reg, time, date, place, reason for issue. It says about paragraph 9(2)(b) of shedule 4 of PoFA, it says about 28 days then recovery etc... I don't speak "legaleese" but I cant see whats missing - unless I'm reading the wrong checklist?

totallytech

Hello,
Well I have to hold my hands up on this one... I've missed the deadline to appeal....
I've just been so busy and the deadline was yesterday.

What should I do now?

totallytech

I've sent in my appeal in the hope that they will accept it due to the bank holiday etc... fingers crossed

Umkomaas

Your POPLA appeal? Jeez, that was the only way of killing this dead, otherwise the PPC and their debt collectors will hound you - aggressively for the first 6 - 12 months. They have up to 6 years to continue to pursue this, until it becomes statute barred.

Just hope that POPLA take a more relaxed view than they normally do with late appeals, although just one day out, you might be lucky.

totallytech

Quite unbelievably I've received a letter from POPLA saying:

We have received your appeal.

This will now be sent to Norfolk Parking Enforcement Ltd.The operator will send their evidence to us and to you before the scheduled date of hearing.

Your appeal will be considered on or soon after 02 July 2015 . You will be notified of the decision as soon as it is available, in the manner you selected.

So I'm assuming they have accepted it?

ColliesCarer

totallytech wrote: »

Quite unbelievably I've received a letter from POPLA saying:



So I'm assuming they have accepted it?

Certainly looks like they have - will you fill out my lottery for me

If NPE are going to challenge your appeal they will send their evidence pack as mentioned - often only about a week before the scheduled assessment date.

Look out for it - check it through and rebut anything you want to challenge further by making an extra submission to POPLA before the date for assessment.

Umkomaas

Wow, skin of your teeth!

You need now to start thinking about what sort of evidence pack they might send - many don't bother, so it's not guaranteed you will get one. It's sometimes sent via email (if they have your email address) occasionally it has dropped into appellants' email Junk files, so please keep an eye on yours - usually from about a week before the forecast adjudication date. You need to act fast to return a rebuttal within the week, so a bit of preparation now will stand you in good stead.

Here's an excellent example of how one poster dealt effectively and comprehensively with a PPC's Evidence Pack. I'm sure this will give you plenty of ideas on how to handle your case.

https://forums.moneysavingexpert.com/discussion/comment/67385911#Comment_67385911

And another one to consider.

http://forums.moneysavingexpert.com/showpost.php?p=67402366&postcount=26

HTH

totallytech

Hi, I've received the evidence pack which is 7 pages long, although the first 5 pages are the images they have already provided me with showing my vehicle.

They say:

1. Contractual Obligation / Parking Charge Amount.
As confirmed by the recent dismissal of the ParkingEye v Beavis appeal, we submit that the charge does not cause a significant imbalance of the parties' rights and obligations arising under the Contract.
The charge sought is a contractual term, which is within the recommended British Parking Association (BPA) guidelines, and is compliant with paragraph 19.5 of the BPA code. Furthermore, the BPA has authorised us to charge at this level.
The PCN was for the sum due to the Appellant, in consideration for the Operator making parking facilities available to them. To borrow the words of Lord Roskill, with whom the other members of the House of Lords agreed, in Export Credits Guarantee Department v Universal Oil Products Co and others [1983] 1 WLR 399, 402H, he stated:
"The clause was not a penalty clause because it provided for payment of money on the happening of a specified event other than a breach of contractual duty owed by the contemplated payer to the contemplated payee."
Further, it would be erroneous to conclude that the sum claimed must be a genuine pre-estimation of loss. Such a limitation arises only in respect of penalty clauses, not in respect of the contractually agreed consideration for performance of an obligation. We again refer you to the recent Judgment of ParkingEye v Beavis, which was upheld by the Court of Appeal. In the Court of Appeal's Judgment it is stated that a parking charge should be equated to a disincentive for drivers, not a penalty, as the charges are not so grossly unreasonable as to be unenforceable at common law. Moreover, it is stated that it would be correct to interpret Parliament's intention on passing section 56 Schedule 4 of the Protection of Freedoms Act 2012, as:
"...being in the public interest that parking charges of the kind now under consideration should be recoverable, provided that they had been brought clearly to the attention of the motorist at the time he made use of the car park."
Please note that in the recent Judgment of Civil Enforcement Limited v Ferris, the claim was decided in Civil Enforcement's favour, and it was decided by the Judge that:
"irrespective of the basis of the charge, contract or penalty, Civil Enforcement Limited are completely within their rights to charge to amount set."
Please further note Parking Eye's recent statement regarding the Parking Charge amount: "ParkingEye firmly believes that its Parking Charges are fair and reasonable, ParkingEye' s Parking Charges are in line with the British Parking Association guidelines, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound.

2- No contract between driver/inadequate signage — Please see images above. The appellant also claims that the AOS logo is not correctly placed in the `P' on our signage. This is only necessary on the Entrance Signs and as can be seen from the image below, the AOS sign is correctly placed:

3- Contract between Norfolk Parking Enforcement and the landowner provided to POPLA as requested by the appellant.

4- Parking Charge Notice is the correct terminology used in the issue of parking charges. No where on any of our documentation do we use the words 'Penalty' or 'Fine'.

5- Proof of Planning Permission — this has been provided to POPLA. Please note that ANPR is not used at this site and therefore not a planning requirement.

6- Non compliant Notice to Keeper: The appellant claims that our Notice to Keeper does not identify the creditor, please see attachment of the NtK sent to the appellant. The first sentence of the document clearly states that Norfolk Parking Enforcement are the Creditor.

7- Summary: Due to all the above points being answered and proving that we have complied with all the necessary procedures we claim that the parking charge was issued correctly and the appeal should be refused.

Regards Appeals Team

So..... They have not actually dealt with the question of GPEOL, so I can reply with:

1. NPE have attempted to answer the issue of GPEOL by discussing the current appeal (which is still being heard in the courts, therefore no decision has been reached yet) between Parking Eye v Beavis - however this is not actually responding to the issue.
There is no Genuine Pre-estimated of Loss breakdown included to show how they have come up with £100: As business costs are not losses and they cannot be passed down to a motorist as GPEOL. As NPE have failed to provide this information they seem to infer that it is up to me to demonstrate how their £100 is not a GPEOL - I am not sure this is possible and is any case a moot point as the burden of proof is upon NPE to demonstrate the loss that has occurred as a result of the alleged breach. Despite submitting this 'evidence' pack they have failed to do this.

2. Signage- The colour blue is specifically mentioned in the BPA Code of Practice as the sort of bright colour to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. NPE have mixed this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP.
Furthermore it simply would not be possible to read any signs whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the T&C's to which it is alleged I agreed to as the registered keeper of the vehicle.

3. There seems to be no valid copy of an unredacted contract included between NPE and the Land Owner, which could include information about 'money changing hands' in the contract - thus hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed.

4. Whilst there is no reference to Penalty or Fine the use of the terminology PCN is usually used as Penalty Charge Notice.

5. Again there seems to be no valid copy of proof of planning permission included for me to defend against.

What do you guys feel to my notes above?