Parking Charge Notice - NGPM Hemingway Rd, Cardiff

joe90pilgrim

Hi guys,

I am currently preparing an appeal to POPLA and would really appreciate any comments/suggestions before I sent it off.

Let me give you a short background to my case. I went out with friends to a restaurant in Cardiff. I was unaware that where I parked was under different ts&cs to the car park adjacent. I didn't see the signs as I entered because one was on the wrong side of the road, and the other was basically sitting in a bush! So, it was a free car park so long as you registered with the restaurant. The sign in the restaurant was obscured as it was so busy. I didn't have a clue I had done anything wrong, until the PCN arrived. I wrote to NGPM, with a copy of the receipt to prove I was a customer of one of the restaurants written on their signs. They basically wrote back saying, don't care, we want our money.

Here is my appeal letter, I am sure you will have read a lot of it before as I have tried to get as much info from this and other websites. For your sanity, I have highlighted bits I have added most pertinent to the charge.

1. The Charge is not compensatory in nature.
As the Parking Charge is in relation to the “breach of the terms and conditions of the site, Reason: Not registered on site”, regardless of circumstance or evidence provided to the contrary (NGP have been provided with evidence to show our receipt from use of facilities associated with said car park in appropriate manner). I contend that the figure of £100 is a penalty charge ‘in terrorem’ to deter a breach and therefore is not commercially justified. Especially, when our usage of the facilities associated with Hemingway Rd Car Park, actually resulted in financial gain for Miller and Carter restaurant, a proprietor of the retail complex. In June of 2014, POPLA Assessor Chris Adamson stated “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 can not 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 stuck down as a penalty, “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.” Given that on the date in question, we were true customers of the restaurant based upon that site, and had we been made aware of contractual conditions, would have complied with said conditions without penalty to us, there are no damages necessary to compensate to any concerned party (propertier, owner or parking management).

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) sign-age and to post out ‘notices’ as a deterrent. Authority to issue is not the same as 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 strict requirements of section 7 of the BPA CoP.
For the second time, I put NGP to strict proof to provide a 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. Please note, a witness statement 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 the 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. Furthermore, sign-age upon entry to the site, was obscured (see photo 1) and on the wrong side of the road.

(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 sign-age, 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...''

Upon entry to the site, NGP have failed to make it clear that parking on this site is subject to a different set of terms and conditions from the neighbouring Red Dragon Centre car park. There is one sign on the wrong side of the road, which would not have been readable by the driver. A second sign, of which makes no mention of NGP, is obscured by foliage . 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. The sign-age 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.

One sign makes the statement ‘By parking on this private land you are entering into a contract with NewGeneration 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. The Civil Parking Notice did not include a VAT registration number

The Civil Parking Notice constitutes an invoice for payment. Accordingly, the invoiced charge must include an element of VAT. However, neither this registration number or an invoice reference number was provided on the Parking Charge Notice I received. Therefore, I do not believe that it is a lawfully valid demand for payment.

6. In addition, NGM are also not compliant with the early payment discount clause of the BPA code of practice which states:

19.7 If prompt payment is made, you must offer a reduced
payment to reflect your reduced costs in collecting the
charge. The reduction in cost should be by at least 40% of
the full charge. ‘Prompt payment’ is defined as 14 days from
the date the driver or the keeper received the notice.


The full amount requested is £102.50 ( including a “£2.50 Processing Charge” for payment made by Cheque/Postal Order). If paid within 14 days, £62.50 would be requested (including previously stated processing charge). This consitutes a 39% reduction of the full charge and is therefore in breach of BPA code of practice.


Thanks for any help/advice you can give,

Joe

Guys_Dad

Signage would be my first point, with photographic evidence, because if you strip the case down, that is why you have a PCN.

Check that the NtK arrived within 14 days from event.

Got a receipt or card bill to show the restaurant? You were a customer - if they want you back, they need to squash the charge. Make that point to the manager - not assistant manager or anyone else.

joe90pilgrim

Thanks for the tip. I contacted the restaurant and they have said they will contact ngpm to stop the charge. Will hold off on the appeal for now. I do have photos and receipt just in case!

Umkomaas

joe90pilgrim wrote: »

Thanks for the tip. I contacted the restaurant and they have said they will contact ngpm to stop the charge. Will hold off on the appeal for now. I do have photos and receipt just in case!

Do not allow the POPLA deadline date to come and go in waiting for the cancellation. You need that in writing from NGPM; just the restaurant say-so won't be enough. They may just be spinning you a fob-off line.

Miss the POPLA deadline and you're then faced with six years of uncertainty, because that's the amount of time open to NGPM to chase this via the Small Claims Court. Don't sleepwalk into that!

I'd be inclined to send off your POPLA appeal which might concentrate the minds of NGPM if they are thinking of arguing the toss with the restaurant, as if this goes the full way it will cost them £27 at POPLA.

scamb24

Hi

Any updates on your parking charge? Did Miller & Carter sort for you? i have also received 1 whilst in their restaurant.

Thanks

joe90pilgrim

Apologies for the delay in responding, I didn't notice there was a new message. Yes Miller and Carter management contacted NGPM and quashed the process. I hope you got the same result.

samoura78

joe90pilgrim wrote: »

Hi guys,

I am currently preparing an appeal to POPLA and would really appreciate any comments/suggestions before I sent it off.

Let me give you a short background to my case. I went out with friends to a restaurant in Cardiff. I was unaware that where I parked was under different ts&cs to the car park adjacent. I didn't see the signs as I entered because one was on the wrong side of the road, and the other was basically sitting in a bush! So, it was a free car park so long as you registered with the restaurant. The sign in the restaurant was obscured as it was so busy. I didn't have a clue I had done anything wrong, until the PCN arrived. I wrote to NGPM, with a copy of the receipt to prove I was a customer of one of the restaurants written on their signs. They basically wrote back saying, don't care, we want our money.

Here is my appeal letter, I am sure you will have read a lot of it before as I have tried to get as much info from this and other websites. For your sanity, I have highlighted bits I have added most pertinent to the charge.

1. The Charge is not compensatory in nature.
As the Parking Charge is in relation to the “breach of the terms and conditions of the site, Reason: Not registered on site”, regardless of circumstance or evidence provided to the contrary (NGP have been provided with evidence to show our receipt from use of facilities associated with said car park in appropriate manner). I contend that the figure of £100 is a penalty charge ‘in terrorem’ to deter a breach and therefore is not commercially justified. Especially, when our usage of the facilities associated with Hemingway Rd Car Park, actually resulted in financial gain for Miller and Carter restaurant, a proprietor of the retail complex. In June of 2014, POPLA Assessor Chris Adamson stated “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 can not 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 stuck down as a penalty, “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.” Given that on the date in question, we were true customers of the restaurant based upon that site, and had we been made aware of contractual conditions, would have complied with said conditions without penalty to us, there are no damages necessary to compensate to any concerned party (propertier, owner or parking management).

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) sign-age and to post out ‘notices’ as a deterrent. Authority to issue is not the same as 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 strict requirements of section 7 of the BPA CoP.
For the second time, I put NGP to strict proof to provide a 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. Please note, a witness statement 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 the 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. Furthermore, sign-age upon entry to the site, was obscured (see photo 1) and on the wrong side of the road.

(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 sign-age, 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...''

Upon entry to the site, NGP have failed to make it clear that parking on this site is subject to a different set of terms and conditions from the neighbouring Red Dragon Centre car park. There is one sign on the wrong side of the road, which would not have been readable by the driver. A second sign, of which makes no mention of NGP, is obscured by foliage . 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. The sign-age 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.

One sign makes the statement ‘By parking on this private land you are entering into a contract with NewGeneration 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. The Civil Parking Notice did not include a VAT registration number

The Civil Parking Notice constitutes an invoice for payment. Accordingly, the invoiced charge must include an element of VAT. However, neither this registration number or an invoice reference number was provided on the Parking Charge Notice I received. Therefore, I do not believe that it is a lawfully valid demand for payment.

6. In addition, NGM are also not compliant with the early payment discount clause of the BPA code of practice which states:

19.7 If prompt payment is made, you must offer a reduced
payment to reflect your reduced costs in collecting the
charge. The reduction in cost should be by at least 40% of
the full charge. ‘Prompt payment’ is defined as 14 days from
the date the driver or the keeper received the notice.


The full amount requested is £102.50 ( including a “£2.50 Processing Charge” for payment made by Cheque/Postal Order). If paid within 14 days, £62.50 would be requested (including previously stated processing charge). This consitutes a 39% reduction of the full charge and is therefore in breach of BPA code of practice.


Thanks for any help/advice you can give,

Joe

Have you still got your photographic evidence? I'm in an identical situation and cannot get there to take photos as my car's in the garage! It would be amazing if you still had them and didnt' mind sharing them with me please.