Penalty Charge Notice - is it real?

wannabeatem

Just got this from UKPPO regarding Newcastle Airport.
They claim that the Penalty Charge Notice is overdue, but it's the first I've received.

Can a parking company issue a penalty charge, I thought that had to be police or council?

Can UKPPO get my details from DVLA if not POFA.

The templates don't seem to fit - GPEOL, etc.

I'm worried this might lead to debt collectors.:mad:
http
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i57.tinypic.com/kdsxo8.jpg

Thanks for any input.

Coupon-mad

UKPPO do issue 'penalty charges' that purport to be issued under the byelaws. But if you read the byelaws they only allow the issue of 'parking charge notices', or clamping. NOT 'penalties'.

And I suspect the timing of the photos do not match the time on the PCN? That's because UKPPO don't take the pics - someone from Park&Fly tracks cars on a normal CCTV then fills out a form (2 minutes later, hence the wrong timing) to 'dob the person in' to UKPPO.

Slightly complicated but can be appealed and won at POPLA. Start with the usual template in the NEWBIES thread, and look at the byelaws (easily Googled). The difference in time - if there is one - gives you an extra POPLA appeal point but don't change the first appeal template, no need.

Come back here when at POPLA stage and ensure you include stuff about 'no keeper liability' at POPLA stage, don't forget it. DO NOT identify the driver. That's why I say use the template for now.

pogofish

wannabeatem wrote: »

I'm worried this might lead to debt collectors.:mad:

Why? When it gets to that stage, the chance of the PPC concerned taking any real action against you drops near-exponentially!

bazster

http://tinypic.com/view.php?pic=kdsxo8&s=8#.VZvwF_mrTmg

The usual crap from Steven Cheetham and Newcastle Airport. The byelaws are utter bolleaux and so is everything Cheetham sends.

wannabeatem

Thanks for your replies....
Got my rejection, and also acceptance that I did not get the first letter.
Is it bluff and bluster??:eek:



Penalty Charge Number: XXXXXX
Vehicle Registration Number: XXXX
Dear Sir/Madam,
Thank you for your letter of appeal against the Penalty Charge Notice issued by us on X.05.2015
Having carefully considered the evidence provided by you we have decided to reject your appeal for the following reasons:

The vehicle was captured via CCTV footage loading whilst stationary on double red lines and in view of a warning sign stating “No Stopping/Loading/Unloading In This Area”, see attached. There are signs around the entire airport complex including at the entrance that clearly state the parking restrictions in place. Security at the airport is paramount and any vehicle captured loading or unloading in anywhere other than the official collection/drop off car park is issued a notice by the CCTV operator.

The land is subject to byelaws, to which we are contracted to enforce. The penalty was issued under these byelaws and not contract law, therefore the Protection of Freedom Act does not apply and the registered keeper is held liable.
The charge is not issued under contract law and is not an attempt to recover damages for breaching a contract. The charge is an alternative to prosecution in the Magistrates Court for breaching the byelaws. As a result of the charge being permitted under the byelaws Genuine Pre-estimate of loss is not a consideration which is relevant

We are in possession of a signed agreement with the landowner. We are unable to supply you with a copy of this agreement due to Data Protection but a copy will be produced should the case go to court/POPLA.

Please see the attached NTK which was sent to your address on the X June 2015. As you appear not to have been in receipt of this letter we are prepared to accept the reduced charge of £60 is payment is made within the next 14-days.

You now have a number of options:

1. Pay the Penalty Charge Notice at the prevailing price of £60 within 14 days. Please note that after this time you will lose the chance to pay the discounted rate and the full amount of £100 will become payable.

2. Make an appeal within 28-days to POPLA- The Independent Appeals Service by visiting their website at: popla and completing the accompanying forms. Please be advised that if you opt for independent arbitration of your case and are unsuccessful, the full amount of £100 will become payable. If you opt to pay the penalty charge you will be unable to appeal to POPLA. Your verification code is: XXXXXXXX

3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.

How to Pay:...................

Umkomaas

1. Pay the Penalty Charge Notice

Well, there's a gift! POPLA and 'penalty' charges just don't mix. Slam dunk win!

wannabeatem

Ready to send off.
Have I covered the points?
Any feedback very gratefully received.

Dear POPLA Adjudicator,

RE: POPLA Code xx

Vehicle Registration: xx
PPC: UK P.P.O
PCN ref: xx
Alleged Contravention Date: May 2015
Date of notice: xx

On date xx As keeper, I received a reminder notice, stating ‘Payment for Penalty Charge Notice xx’ was overdue, from UK P.P.O. Requiring a payment of a £100 charge for the alleged contravention of “Parking in a Prohibited Area”. The vehicle is claimed to have stopped, for up to 16 seconds, on double red lines, which on the provided cctv image are clearly not present.

I am appealing as the registered keeper (the driver has not been identified) on the following basis:-
1. The Charge is not a genuine pre-estimate of loss.
2. Lack of clear, readable signage - no contract with driver.
3. Lack of standing/authority from landowner.
4. Non conformance of POFA 2012.
5. “Penalty Charge Notice” is a direct breach of BPA Code of Practice
6. Not relevant land for registered keeper liability
7. No creditor identified.
8. Byelaw contravention.
Explained below:


Explained below:
1. The Charge is not a genuine pre-estimate of loss.

The driver, who I am not obliged to name, did not park on a double red line, and no payment is required.
Despite the protestations in the rejection letter from UK P.P.O, the truth is there is no implied (or otherwise) acceptance of any charge in the BPA Code of Practice (CoP). In fact the Office of Fair Trading has stated to the BPA Ltd that ‘a parking charge is not automatically recoverable simply because it is stated to be a parking charge.’

This Operator must prove the charge to be a genuine pre-estimate of loss. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. The PCN sum is large at £100 (with an initial threat of increase to £150, and later was tellingly reduced to £60 after my unsuccessful appeal letter) and, regardless of the potential decrease, requires UK P.P.O to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly emanating from a minor alleged breach. There is no evidence of any loss emanating from this parking/stopping incident.

The operator cannot demonstrate any initial quantifiable 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 could be present. 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 be assumed to exist 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. There is no genuine loss being pursued.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

2. Lack of clear, readable signage - no contract with driver.

Such as they are, the signs are unlit, so that in darkness no signs are visible and the words relating to the parking charge are very small and are certainly unreadable. I put UK P.P.O to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no adequate lighting on site and any of the sparsely populated signs that the driver may have passed once on site are certainly not prominent and do not appear to be reflective. The fact is that if the words are not readable at dusk or in the hours of darkness then no contract was capable of being formed. The signs breach the BPA CoP Appendix B which effectively renders signs unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

There was no agreement to pay. No consideration/acceptance flowed to or from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK P.P.O and not expecting to read a contract when they arrive to park or travel through. 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): '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.'

3. Lack of standing/authority from landowner.

UK P.P.O has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put to strict proof of the contract terms with the actual landowner (not a lessee or agent). UK P.P.O 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. No evidence has been supplied showing that UK P.P.O are entitled to pursue these charges in their own right in the courts.

I require UK P.P.O 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 CoP 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 a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA CoP, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4. Notice to Keeper Not Compliant with PoFA 2012.

The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on three grounds:

(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at a particular time on the day in question.

(b) The Notice to Keeper does not identify the 'creditor'.
(c) The Notice to Keeper was not issued in the time frame required.

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'.

In this case keeper liability has been lost as the ‘notice to keeper’ fails to clarify the period of time the vehicle was parked, fails to identify who the creditor is and was issued a full 117 days after the alleged incident, therefore it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.

If POFA2012 is not being invoked then no keeper liability can be sought.

5. “Penalty Charge Notice” Breach of BPA Code of Practice.

If this is indeed intended as a “Penalty Charge Notice” issued under statute, then the matter should be referred to Trading Standards for possible criminal/fraud proceedings. The wording “Penalty Charge Notice” and “Fixed Penalty Notice” have been used by the Operator in their correspondences and in their signage and therefore UK P.P.O is in clear breach of the BPA CoP which states:

14 Misrepresentation of authority
14.1 You must not misrepresent to the public that the parking
control and enforcement work you are doing is carried
out under the statutory powers of the police or some
other public authority.

14.2 You must give clear information to the public about what
parking activities are allowed and what is unauthorized.
However, you must not mislead the public into believing
that the rules you are enforcing are based upon the
powers of an agency regulated by Statute.

14.3 Operators who suggest to the public that they are
providing parking enforcement under statutory authority
will be acting in breach of the Code.

14.4 You must not use terms which imply that you are acting
under statutory authority; this will include terms such as
‘fine’, ‘penalty’ or ‘penalty charge notice’.

14.5 The term ‘PCN’ is used to denote a ‘Penalty Charge
Notice’ in the ‘on street’ environment. If you use the term
PCN in your ‘Parking Charge Notice’, you must preface
PCN with ‘Parking Charge Notice’ at least once in your
document.

B10.5 You must not try to impose a ‘penalty’. You must not call
a parking charge a ‘penalty charge’ on any document
(electronic or paper) that refers to parking charges, or on
any signs in your car parks.

6. ‘Not relevant land’ therefore keeper is not liable for the charge.
I contend that this is not 'private land' as defined by the Protection of Freedoms Act 2012, therefore there is no keeper liability. It's an Airport road and this Airport is known to have Byelaws and the right to 'registered keeper liability' is simply not available on land covered by local Bylaws. Railway or Airport land is generally not 'relevant land' under the definition within the POFA. The keeper puts the Operator to strict proof to POPLA that this particular Airport Road is not covered by Statute or Byelaw and is 'relevant land' (as defined in Schedule 4 paragraph 3) because I believe it is not 'relevant land' at all.

This is not a parking issue, but a stopping/dropping off passenger issue. Therefore POFA 2012 does not apply, which means Registered Keeper liability does not apply.
This was not a parking incident as defined by the POFA 2012 which states:
Quote:
1(1)This Schedule applies where—
(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and ...
2) Therefore, keeper liability does not apply
3) The operator may only pursue the driver
4) The operator has offered no proof as to the identity of the driver
5) The operator should not have requested the keeper details from DVLA.


7. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who 'the Creditor' may be, is misleading and not compliant, in regards to paragraph 9(2) (h) of Schedule 4 of the POFA. Whilst the Notice has indicated that the operator requires a payment to be made to UK P.P.O, there is no specific identification of the Creditor, who may, in law, be UKPP or some other party. The POFA requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and the Notice does not.

8. Byelaw contravention of UK P.P.O
The Newcastle Airport byelaw states that the landowner agent can issue a 'Parking charge notice', clamp a vehicle or remove a vehicle. This would mean BPA CoP must be followed in issuing Parking Charge Notices including POFA2012.
UK P.P.O have issued a 'Penalty charge notice' in contravention of this byelaw.
I suspect this is in order to 'get around' the BPA CoP.
Please ensure these contraventions are brought to the attention of the BPA.

In Summary.
Again I stress that at no point has the driver been identified and therefore no assumptions could be drawn. The onus is on UK P.P.O to identify the driver, which they fail to do and no invitation to request the driver details were made. I am astounded that UK P.P.O are continuing to pursue keeper liability and have obtained my details unlawfully. Keeper liability can only be established by invoking POFA 2012 and no other legislation. If byelaws regulate parking then it is not ‘relevant land’ for the purposes of POFA 2012 and therefore no keeper liability can apply. It also appears that there may be a conflict between the byelaws at Newcastle Airport and current legislation. The Byelaws don’t have the authority to over-rule current legislation.

I therefore respectfully request that my appeal is upheld.

Yours faithfully
xxxx:cool:

Handy_Hubby

I would put the point about it being a 'Penalty Charge' at the very begining of the letter.

Redx

and "not a gpeol plus beavis" at the very bottom

wannabeatem

Received DRP letter dated the 6th August, that's before the POPLA appeal time limit!!
They haven't even waited for the POLPA decision.:mad:

Redx

so complain to the BPA with copies of the paperwork, like you are told to do in the NEWBIES sticky thread