PCN - New Generation Parking (NGP) and POPLA appeal result.

Tonofun

OK, here's what I've got so far... ALL CREDIT to MISTERBARLOW, I'm using his posted POPLA appeal letter as the basis of my own, as it is EXCELLENT. If anyone knows how to 'tag' another user, let me know so I can get him to see this credit.

Still, it's taking me a long time to read it, digest it, understand it and edit it appropriately for my specific situation... Legal speak is weird. Any pointers gladly received!

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I am the keeper of the vehicle with registration number XXXXXXX.

On 20/08/15 I received by mail a Parking Charge Notice to Keeper from New Generation Parking Ltd (to be referred to following as NGP) alleging a parking “offence” on 09/08/15, at “Penarth Marina CF64”, and demanding a Charge.

My original appeal on 25/08/15 to the operator NGP direct was rejected and I was supplied with a POPLA verification code. I have visited a [possible site] of the alleged offence to gather information and photographs (see point 1(a) below as to why I state a [possible site]), and I contend that as the vehicles’ registered keeper I am not liable for the alleged Parking Charge Notice for the following reasons:-

1. A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.
2. The Charge is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.
3. The signage on the [possible site] (see 1(a)below) is inadequate, its’ placement is confusing and contradictory, and was either not seen or not understood by the driver, so no contract could have been formed.
4. The lack of NGP’s proprietary interest in the land and no contractual authority from the landowner.
5. Unreasonable and unfair terms.

1. Non-compliant and erroneous Notice to Keeper - no keeper liability established under POFA 2012.

As the keeper, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the keeper of the vehicle, I can only be held liable for the Parking Charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. The Notice To Keeper (NTK) from NGP, dated 13/08/2015 fails to comply with Schedule 4 of POFA 2012.

It fails to comply with Paragraph 9 (2)(a) of the Act, on two counts. Para 9(2)(a) states that a notice must: “…specify the vehicle, the relevant land on which it was parked, and the period of parking to which the notice relates”

Firstly, the Notice To Keeper allegedly states the relevant land on which the vehicle was parked as “Penarth Marina CF64”. This purely and simply is totally incorrect! This is not even a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent PCN. This point alone invalidates their Notice To Keeper (NTK) for lacking clear and concise information relating to the alleged parking event. The single (tiny!) photograph they have supplied does seem to show the rear of my vehicle, with two other vehicles flanking either side, but with zero clear indication whatsoever of its actual location. How can they demand any charges, without resounding proof that my vehicle was parked on land that they are contractually responsible for? One of their staff could have taken this photograph of the rear of my vehicle anywhere. A cursory glance at some mapping software reveals that “CF64” covers a vast area, stretching from Penarth south-westerly until almost reaching Barry, approximately 6 miles. Indeed even “Penarth Marina” appears to be a sizeable area covering tens of different roads and streets.

(a)For clarity, as I do not know the location of the alleged site of the parking event due to NGP’s NTK failing to specifically identify it, for the remainder of this letter I will refer to the unknown site as the [possible site].

Secondly, the Notice To Keeper issued does not specify a “period of parking”, it merely denotes a single point of time (15:32hrs) of the alleged parking event and charge issue. This does not constitute “proof of parking”, and also does not fulfil Paragraph 9 (2)(a) of Schedule 4 of POFA 2012, invalidating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

2) The Charge is not a Genuine Pre-Estimate Of Loss, nor proportionate or commercially justifiable. It is a disguised penalty!

This operator must prove the charge to be a Genuine Pre-Estimate Of Loss(es) that arose directly from the alleged infringement, and not a penalty. Having since visited the [possible site] of the alleged parking event (see point 1(a) above) and examined its location and the signage, it is clear to myself due to its close proximity to the marina and sea, that both the landowner and NGP want the notices to be prohibitive in nature to prevent all parking, and any alleged losses NGP claim, are merely a disguised penalty!

NGP’s own appeal rejection letter to me states:

2.1.1 “Our business model is based on receiving small fees from members of the public using our car parks in return for a service, such as a fee paid at a pay and display machine, or the price paid for a parking permit…..”
2.1.2 “It is in order to protect this revenue stream that it is necessary to issue a Parking Charge Notice…..”
2.2.1 “Our parking charge notices represent liquidated and ascertained damages. The measure of their damages is the loss of its revenue (for example the pay and display ticket not paid for) plus the cost of recovering that sum.”
2.2.3 “The terms and conditions are clearly advertised throughout the parking locations and make it clear that a Parking Charge Notice may be issued for a breach of contract

However, I argue that NGP are making the claim that the Charge is due to a contractual breach and thus the Charge must represent a Genuine Pre-Estimate Of Loss. I also argue that NGP should not be taking ‘recovery costs’ into account calculating their Genuine Pre-Estimate Of Loss, as those costs have not and indeed may not be incurred. Other than the above statement (2.2.1), I have received no proof of how they calculate their Genuine Pre-Estimate Of Loss and/or how it relates to the amount of the Charge levied in the Parking Charge Notice To Keeper.

3) Confusing, ambiguous, and contradictory signage - no contract made with driver

I STILL HAVE TO FIGURE OUT THIS SECTION

4) Lack of NGP’s proprietary interest in the land and no contractual authority from the landowner.

NGP do not own the land mentioned in their Notice to Keeper and have not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper. I require NGP to produce a copy of the contract with the landowner to either myself or POPLA as I believe it would not be compliant in accordance with the British parking Associations (BPA) Code Of Practice (COP) and without it, NGP have no legal standing nor authority at the [possible site] which could impact on visiting drivers. In the event that NGP should produce a ‘witness statement’ I would contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms or, indeed, is even an employee of the landowner. I would contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor legal standing.

5) Unreasonable/Unfair Terms

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

“18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances.”

It goes on to state:

“Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a ‘disguised penalty’, that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

Confusing, ambiguous, poorly placed, and contradictory signage is far from transparent or obvious to drivers, as is disguising a penalty as a tariff. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)

"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

Furthermore, Regulation 5(1) states that:

"A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer"

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that:

"A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

In summary, I contend it is wholly unreasonable to rely on illegitimate notices not adhering to statute, with inaccurate or incomplete information attempt to profit by charging a disproportionate sum, which is nothing more than a disguised parking penalty with zero relationship to any supposed genuine pre-estimate of losses caused, by a vehicle using an otherwise freely accessible roadway to access the premises thereon.

I put this operator to strict proof to justify their charge, under the circumstances described. In the light of all of the above, I therefore respectfully request that my appeal is upheld, and the charge is dismissed.

ampersand

Current thinking is to drop gpeol to end of list, pending release of Beavis Appeal judgment.

Tonofun

Thanks everyone for your help - you've all been great, and the information in this forum has been invaluable.

I've submitted my POPLA appeal now via the website (ugh!! It IS horrible!) so now I'm just waiting to see how it pans out.

If it is successful, I can post it up somewhere if you like.

Tonofun

Quick update...

Just received an e-mail from POPLA :

We have now received the case file from New Generation Parking Management and this is available for you to review on the portal.

So, I go visit their site, login to "Track my appeal" to review the evidence, only to be met with:

The operator will send the evidence independently

What a joke!!! Now I have to rely on the operator (NGP or New Generation Parking) to post the evidence out to me in time (only a 7 day window) for me to review and comment - IF they post it to me at all!

Pathetic system.

Coupon-mad

Happens all the time - you should get it by post but do email POPLA and tell them you have not got the evidence yet and so you need an extension, please, so that the 7 days only runs from when you email back to confirm you have the pack of rubbish.

Copy in the PPC to the email if you have an email for them.

Tonofun

E-mailed POPLA today...

To whom it may concern,

I'm currently appealing an illegitimate 'Parking Charge' sent to me as registered keeper via your service (POPLA verification code - XXXXXXXXXX) and on the 14th of October I received an e-mail message from info@Popla.co.uk with the following message:

"We have now received the case file from New Generation Parking Management and this is available for you to review on the portal.

You have seven days from the date of this correspondence to provide comments on this file. This can be done directly on the portal."

So, after digging out my login information from my secure file and logging in on the Popla.co.uk website under the 'Track Appeal' page in order to 'review the case file' that I was informed would be available to comment on, what I was actually greeted by was the following message:

"The operator will send the evidence independently"

This is not very helpful. This is also not what was specified in your message to me.

Indeed, it is now the 20th of October as I write this message to you, so 6 days of the 7 day 'comment period' have already passed, and the 'Case file' from New Generation Parking Management is nowhere to be seen, neither on the Popla.co.uk portal nor by post direct to me.

There is only 1 day left of the 'comment period' and I have nothing available for me to comment on.

How exactly am I supposed to proceed given this situation? I propose the following:

•I'd like to formally request an extension to the 'comment period', to run 7 days from the confirmed receipt (from myself, to you...) of the 'Case File' from New Generation Parking Management.
•I would also like to formally complain about the misleading e-mail I received which contained information that was clearly incorrect, and suggest that you review your automated systems and messaging templates to prevent others from being mislead in the future.

Can I ask - if I haven't received the Case File by post, and it isn't available for review on the Popla website portal, does that mean that Popla also hasn't actually received the Case File?? Very perplexing...

I include an e-mail address for New Generation Parking Management on this message also, so that they receive this message and have an opportunity to 'correct' their oversight of not sending me a copy of their Case File, and I would suggest to them to review their internal processes to ensure that this behaviour isn't systemic.

Thank you for your consideration, I look forward to your response.

Tonofun

Another update...

Just received the following e-mail from Popla:

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference XXXXXXXXXX.

New Generation Parking Management have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

I'm happy (obviously!) because now I can forget this whole ridiculous nonsense... But I really wanted the assessor to kick them into touch. Was my POPLA appeal just that good that they saw it and tucked tail and ran? (Would they have seen it as part of the process, or is my appeal for the assessors eyes only?)

THANK YOU AGAIN EVERYONE WHO HELPED ME OUT

If anyone wants the guts of my POPLA appeal letter, let me know and I can post it up here or somewhere else more appropriate.

Fruitcake

Tonofun wrote: »

Another update...

Just received the following e-mail from Popla:




I'm happy (obviously!) because now I can forget this whole ridiculous nonsense... But I really wanted the assessor to kick them into touch. Was my POPLA appeal just that good that they saw it and tucked tail and ran? (Would they have seen it as part of the process, or is my appeal for the assessors eyes only?)

THANK YOU AGAIN EVERYONE WHO HELPED ME OUT

If anyone wants the guts of my POPLA appeal letter, let me know and I can post it up here or somewhere else more appropriate.

Well done. You came from behind as a NEWBIE and have come out in front as a winner.


Please post your appeal and response in the POPLA Decisions Sticky thread near the top of the main page.


You might also like to let MISTERBARLOW of your success.

Tonofun

Cheers Fruitcake! Posted the main bulk of my Popla appeal letter in the POPLA Decisions sticky thread, as suggested, HERE

misterbarlow

RESULT MATE!!!
I think I won my appeal using BPA CoP failings in the end, so never knew if it was a winner, but posted it anyway in the hope of just this occurrence that it could help someone else out!!!
Glad it helped out!!!