POPLA appeal vs LCP allowed

POPLA_appeal_allowed

What happened:

Driver used car park for the first time, entered car park at night, parked in front of Burger King, genuinely did not see P&D signs. Owner got NTK through post, appealed to LCP on grounds of inadequate signage and excessive charge but was rejected. Owner wrote a few more letters to LCP but they refused to show any understanding. About to give up, but came across this forum. Appealed to POPLA on grounds of inadequate signage, NGPEOL, non compliant NTK.

POPLA decision:

The Operator issued parking charge notice number LC100xxxxx arising out of the presence at Harlesden Plaza, on 31 January 2015, of a vehicle with registration mark xxxxxxx.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

It is not in dispute that the appellant’s vehicle was parked at the site and no payment for it to park was made. A parking charge notice was issued after the operator’s ANPR system detected this.

The appellant made a number of representations, but I need only deal with the one upon which I am allowing the appeal, that the driver was unable to see the signs at the site because it was dark.

The operator rejected these representations, stating that the site was adequately illuminated.

Considering all the evidence before me, I find that the operator has provided a number of photographs which are said to show signs at the site during darkness. However, the sky is only dark in one of them, which was taken in 2012, so is not a reliable guide to the level of light at the site on the date of the parking event. The photographs of the site in daylight, although they do show lighting, are also not useful in determining whether the signs were visible at night, as I cannot know what effect these lights had on the date of the parking event, as they may not all have been functioning. Therefore, there is insufficient evidence to permit me to find on the balance of probabilities that the signs were sufficiently visible to bring the terms of parking to the attention of the driver, so cannot find that they were bound by them. Therefore, I cannot find the charge notice to have been validly issued.

Accordingly, I must allow the appeal.

Christopher Monk

Assessor

Umkomaas

Hmm! Nice side-step of GPEOL (which would have won this 100% a month or so ago), but evidence that another element of appeal, not previously a big winner, can still do the job!

Well done OP, good work

POPLA_appeal_allowed

I am glad that this is over. LCP just wanted the £50 or £100 for the driver's mistake of not seeing the P&D sign, a mistake that they have contributed to. Google Streetview and LCP's own photo show that if you enter Harlesden Plaza car park by the Burger King entrance and immediately turn right towards Burger King, the P&D sign will at most be in view for a moment. Most of the other signs are small and unlit.


I also appealed on the ground of NGPEOL, giving the reason that LCP was claiming £35/h of labour cost, which is equivalent to a salary of over £62,000/year. LCP retorted in their evidence pack that their staff's salary is none of my concern. POPLA did not rule on that - I guess the Beavis case has made the NGPEOL argument potentially controversial and POPLA wants to avoid that.


The third argument was NTK not POFA compliant. I appealed on the ground that NTK did not say what the £100 was, whether it was a contractual sum or damage for breach of contract, and did not give the breakdown. I wasn't sure if it also has to state the original amount owed of £2. Other than that, I couldn't find anything else that's obviously non-compliant.


Some people on this forum have suggested that LCP is stupid, but I would say don't underestimate their cunningness and determination. POPLA's statistics show they win 1/2 of the POPLA appeals.


What makes me angry is if the PCN had been £50, reduced to £25 for early payment, I would have paid straight away for the driver's mistake. It would have saved hours of my time and allegedly hours of their time, and they would still have made a good profit. Unfortunately, they chose to go for a big profit from the driver's mistake.

Ralph-y

well done :j

please make sure you let the Government know how you feel via the consultation survey ....

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418725/Parking_Discussion_Paper_FINAL.pdf

Ralph:cool:

POPLA_appeal_allowed

Something that I am curious about:

On this forum it's often said that NTK are almost always non-POFA-compliant, but I could not see any points where the NTK below is obviously non-compliant:

http [colon double slash] s1066.photobucket.com [slash] user [slash] thamisis [slash] media [slash] NTK_zpsd6lgykwx.png.html

The only thing I could think of is that it did not state what the sum of £100 is (is it a penalty or a contractually agreed amount or a GPEOL?), what the original unpaid amount was (£2). That was one of my appeal points, but POPA did not rule on it.

I would be interested to know whether this NTK is POFA compliant or not, and if it's not then why.

Umkomaas

Check it against this.

http://www.parkingcowboys.co.uk/keeper-liability/

And this.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

And it must comply explicitly, if it's not quite right, it isn't right. This is LAW, not some back of an envelope, sort of, kinda, you know what I mean, thingy, type of requirement. It's the LAW!

Come back and tell me they've hit every nail squarely on the head.

POPLA_appeal_allowed

Thank you, Umkomaas.

Regarding the list from parkingcowboys, I think the NTK passes on every point except for 2: it does not say of the £100 how much is the original amount and how much is additional.

1. Which car the ticket relates to: Pass
2. What land the car was parked on: Pass
3. The period the car was parked: Perhaps. NTK gave sighting in and out time and duration. I know this is not necessarily the period the car was actually parked. But normal ANPR systems can't tell when the car was actually parked, so is it really reasonable to to insist on that?
4. Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full: Pass
5. State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when: Fail
6. Specify the outstanding amount of the parking charge: If this means the original £2 then it's a fail
7. and of the maximum additional costs they may seek to recover: Not sure: NTK says £100, but it doesn't say how much of that is additional costs.
8. and of the dispute resolution arrangements: Pass
9. Invite the registered keeper to pay the outstanding parking charge or, if he was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver: Pass
10. Identify the “creditor” who is legally entitled to recover the parking charge: Pass
11. Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper: Pass
12. Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only): Pass
13. Date of the notice: Pass

Also, LCP's evidence pack is massive, consisting of 27 files, including their lease on the car park, the original NTK, signage plan and a buch of photos (but only one was taken with a dark sky), all the correspondence between them and keeper, records from the computer system, and a long letter to argue their case, etc.

The date of hearing was 27/4/2015 but they didn't send their evidence pack until 3:50 on 20/4/2015, which was a bit nasty because that didn't give much time to respond.

Umkomaas

Fail = Fail. Persuading a Judge may be another matter, but as you're not 'there', rather a moot point!