Invalid NTK - Advice

Fruitcake

Poplaappeal wrote: »

[IMG]hXXp://i66.tinypic.com/rc9e9e.jpg[/IMG]

and the second page
[IMG]hXXp://i68.tinypic.com/razqs2.jpg[/IMG]

Thank you Fruitcake, I've now amended the first post. Thanks for your help so far

http://i68.tinypic.com/razqs2.jpg


I can't open the image as it keeps crashing internet explorer on my works PC.

Coupon-mad

I can see it is a blue one but only the back page. Is it a NTO or an NTK on the front? Does it say in the final paragraph on the front that the keeper will be liable?

Poplaappeal

This is the first page. I've re uploaded (it worked on my pc) but it gives the same tinypic url which caused issues for fruitcake

hXXp://i66.tinypic.com/rc9e9e.jpg

Change the "XX" to "tt" as it wont allow me to post a link

Parking Charge Notice - £60.00
We are writing on behalf of the creditor in relation to an unpaid parking charge. We have obtained your details from MLA under a "reasonable cause" request as you were the registered keeper of the vehicle specified at the time of the parking incident shown. A Parking Charge has been issued because the vehicle was parked in a manner where the driver attracted a parking charge as brought to the driver's attention via signage and agreed to by the driver when the vehicle was parked on private land managed by the creditor Secure A Space.

A Notice to Driver, providing details of the incident, was issued via a Parking Charge Notice (PCN) that was affixed to the vehicle screen. The driver was required to pay the parking charge within 28 days of issue. The opportunity to pay at the reduced rate has now passed and the full amount is now due by the driver.
As the charge has not yet been paid in full and we do not hold a record of the driver's name and address, we are writing to you as the keeper of the vehicle. As such we now invite you to make payment of the parking charge shown or if you were not the driver of the vehicle at the time of the incident to notify us in writing, acting on behalf of Secure A Space, of the name and current serviceable address of the driver. Please also pass this notice to him/her without delay.

If this parking charge remains unpaid after a period of 28 days of this notice and we do not know both the name and current address of the driver, we will have the right to recover the charge from you as the keeper of the vehicle. At this stage we may pass the account to our debt recovery company where further costs may be added.

Notice to Keeper or Hire Company
Our reference No:
Date of this Notice: 20/01/2016
Parking Charge Date: 04/01/2016
Time of issue:
Parking Charge Notice No:
Vehicle Registration No:
The Creditor: Secure A Space
Location: NEW CAPITAL QUAY
Reason for issue: FAILURE TO DISPLAY A VALID PERMIT
Outstanding Amount: £60.00
Payment options and instruction can be found overleaf.
Operating in accordance with the British Parking Association's Code of Practice.

As a side issue, they say the amount hasn't been paid by the driver and the full amount is now due, but the ticket said £100 reduced to £60 within 14 days. Whereas this NTK says full payment is only for £60.

Coupon-mad

Tell me if I'm barking up the wrong tree but it looks as though that went to a company.

Is it a hire car or lease/company car? Even better if so. Are you appealing as the company it was addressed to or have they passed it to you?

Have they given your name as the usual keeper responsible for the vehicle or did the company not reply and have just left it to you as an individual to appeal, or can you appeal in the company name?

This one CERTAINLY needs an email complaint by the keeper - company? - to:

david.dunford@dvla.gsi.gov.uk

because you are 100% right about it being posted too early (more importantly PCS/DRPlus have obtained the keeper's data without reasonable cause, too early and have stated that the keeper is liable when they've mucked up the timeline). They have clearly mentioned there was a PCN on the windscreen first so they could not lawfully even get the DVLA data until February.

Poplaappeal

I suspected this was the case and they were not allowed to retrieve the details until February.

The window ticket was issued on the 4th January, and I wrote to them on the 7th January stating I was legal keeper and giving my home address but I never mentioned the driver, so I was awaiting the NTK myself.

They then accessed the DVLA and wrote the leasing company on the 20th January demanding payment. As you can see on the NTK, the leasing company actually tried to pay it on my behalf but when they contacted PCs they were told they were no longer dealing with it?!

I am appealing in person, but should I be doing it on behalf of the leasing company? I asked the leasing company (Arval) for a copy as I explained to them I was contesting it, but they said it is their policy to automatically pay which is why I think PCS were deliberately trying to cut me out.

Once I hopefully win Popla I will report them to the DVLA

Do I need to change my NTK appeal points given the backstory? Shall I suggest to Popla this was unlawful as was as non compliant?

Thanks for everyone's help so far

Coupon-mad

You can appeal it because you are the day to day keeper responsible for this vehicle.

Better to appeal it in a company name though, using wording that Edna Basher posts on here.

Is there a middle man here, a company that you work for? Best appealed in that name. Any chance of that? If not then we'll crack on with helping you to word this from you as lessee/hirer (the keeper of the car on a day to day basis).

Poplaappeal

The issue is that Arval are the leasing company and they have no interest in defending this charge. They will voluntary pay knowing that they simply pass the charge to me, so i don't think they will offer much assistant should I appeal in their name.

This is my draft appeal and I would appreciate any guidance (Apologies its so long!)

I challenge this 'PCN' as the keeper of the car. I am the appellant and resident leaseholder of the allocated parking space, and paid a consideration of £20,000 to obtain the lease to the allocated space. The lease agreement between the freeholder and the resident does not stipulate that a permit must be displayed (for which Secure-a-Space are not party to, and the resident has no contract with Secure-a-Space).

The driver believes that the signs were not seen/are ambiguous and the terms unclear to drivers before they park. There are also no signs within a 20m radius of the residents allocated space, and the driver did not walk past any on their exit. Furthermore, I understand Secure-a-Space do not own the car park and you have given me no information about their policy with the landowner to issue such a charge. Again, Secure-a-Space have failed to provide such documentation despite being requested to do so.

I submit the points below to show that the I am not liable for the parking charge:
1. No keeper liability under POFA 2012
2. Unreasonable and unfair terms – Inadequate signage
3. No genuine pre-estimate of loss
4. No standing or authority to pursue charges nor form contracts with drivers
5. No contract between driver and secure a space
6. Unlawful Penalty Charge

1) NO KEEPER LIABILITY UNDER POFA 2012
The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

As a Notice to Driver was provided on the vehicle, a NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 04/01/2016 and it is understood that the NTK was required to reach the registered keeper no earlier than 02/02/2016 and no later than 2/03/2016. A NTK was issued by a third party, Parking Collection Services who allege they were acting on behalf of Secure-a-Space, dated 20/01/2016. and received on 25/01/2016 (attached). Therefore the conditions set out by paragraph 6 of Schedule 4 have not been complied with, and there can be no keeper liability. As a result I request that Secure-A-Space Ltd. provide evidence to POPLA of who the driver was.

Additionally the NTK is not complaint as it does not adequately identify the car park in question. It simply states “New Capital Quay”, which is a large development and encompasses a number of car parks, notably a Waitrose car park immediately to the left of the residents car parking space which shares a common entrance roller, and is also referred to as New Capital Quay and even has a sign stating “New Capital Quay Parking” which digitally displays the number of remaining spaces.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be strictly complied with where the appellant is the Keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK in the required time limits and to a sufficient accuracy. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

This clear breach of section 4. (4) of the Protection of Freedoms Act 2012 by Parking Collection Services acting on instruction from Secure-a-Space will therefore be reported to David Dunford at the DVLA for illegally accessing the DVLA database before the 28 days had passed.

2. UNREASONABLE AND UNFAIR TERMS – NO CONTRACT AGREED TO PAY £100. INADEQUATE SIGNAGE

The only notices are displayed on support pillars, a large distance away from the allocated car parking space 408, and they do not communicate the full contractual terms & conditions. At the time of the contravention no signage was clearly visible by the vehicle. Any photos supplied by Secure-a-Space to will no doubt show the signage with the misleading aid of a close up camera. As such, I require Secure a Space to show where the signs are placed among a myriad of other information bombarding a resident without the help of external lighting such as a camera flash or torch, and from the position on the allocated space, as I confirm none are visible from Parking Bay 408.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. It is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

Secure-A-Space needs to show evidence and signage map/photos specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see /read them when deciding to drive in. I attach a photo below showing the entrance sign is actually strategically placed behind another sign and not visible when driving. The BPA CoP states “entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of.'' I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice and failed to establish any contract with the driver prior to parking.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in and where the plaintiff had parked often before. He said: “He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

In a broadly comparable January 2014 POPLA decision number 1773123003, the Assessor upheld the appeal on 'entrance signage' and said 'As the 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. The Operator has produced pictures of two signs on site but I cannot tell the location of these signs. The Operator has also produced a site map showing where signs are located. I cannot find on the balance of probabilities, where the Appellant submits there was no entrance sign at the material time, that the appellant would have seen signs if parked near the front half of the car park. Taking together all of the evidence before me, I must find that the Operator has failed to produce sufficient evidence to demonstrate that it had taken reasonable steps to bring the terms of parking to the attention of the Appellant''.

3. NO GENUINE PRE-ESTIMATE OF LOSS

The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Secure a Space must therefore be required to explain their 'charge' by providing a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Secure a Space have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Secure a Space cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract,

The appealing reiterates that the Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term.

Should the Operator seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case, then the appellant will make the following observations as to why the material case can be easily distinguished from it. The case in question of a free retail car park where turnover of vehicles was deemed essential to businesses on the park, plus car park abusing commuters catching trains from the nearby station, and these circumstances where a leaseholder has unequivocal rights to parking in a private residential car park are undoubtly different as noted in the judgement itself. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants
business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to them-selves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge is a penalty . The vehicle was fully entitled to park as it did . The Operator has been given evidence that the vehicle was parked in its own allocated bay. The only alleged error is that a permit was not displayed ( not that there is any obligation to ). Had this been done it would have prevented a parking charge notice being issued.

The Operator has no legitimate interest in enforcing this charge, their only interest is to seek to profit from an inadvertent error. On the operators website (.secureaspace.co.uk/id3.html]), Secure-A-Space say: "We...even send you £20.00 for every vehicle that pays their Parking Charge Notice" This is clearly a 'bounty payment' which must be listed and balanced against any pre-estimate of loss stated (not against the costs of running the business which does not equate to pre-estimate of loss). I would also require Secure-A-Space to declare who receives that bounty payment at this site - if it is not the Housing Association then it must be revenue for the ticketer and cannot be a genuine pre-estimate of loss.

Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment:

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not ,as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse , and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

4. NO STANDING OR AUTHORITY TO PURSUE CHARGES NOR FORM CONTRACTS WITH DRIVERS

I believe that Secure a Space has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Secure a Space must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Secure-a-space to strict proof to provide an un-redacted, contemporaneous copy of the contract between Secure a Space and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Secure a Space. This must include assignment of the right for Secure a space to make contracts with drivers and for Secure a Space to pursue them at court in their own name. Please note that a 'witness Statement' or 'site agreement' will be insufficient to provide all the required information set out in 7.1 and 7.2 and I put Secure-a-Space to strict proof that their contract covers every point in this section of the BPA CoP.

Neither the permit itself nor the lease agreement the resident signed adequately (or at all) warned of the AMOUNT of any parking charge nor drew attention to any further terms which could apply to the contract at the time of the permit being handed over. It is too late to bring other terms into a contract (not even those on a sign) if these terms were not part of the agreement made at the time of the permit being provided. They were not. The residents had no idea that a 'fine' of £100 could possibly apply upon receipt on the permit.

5. NO CONTRACT BETWEEN DRIVER AND SECURE A SPACE

As per the property lease signed and agreed to in 2013 which Secure-a-space are not party to, there is no mention of Secure a Space Ltd, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property. As per appeal point 4 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and Secure a Space.

6. UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket. This was the case in several compelling and comparable Court decisions such as UKCPS v Murphy April 2012 (a case involving a disabled bay and no Blue Badge, where the 'Parking Charge' was found to be a penalty). Also Excel Parking Services v Hetherington-Jakeman (2008), OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011). The BPA Ltd was warned about such charges being unenforceable by the Office of Fair Trading in 2013. The information that the Office of Fair Trading gave to the BPA Ltd on parking charges expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. The OFT also expressed the view that the court will also need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings.

This concludes my PoPLA appeal against Secure-A-Space Ltd.’s Parking Charge Notice No. XXXXX, PoPLA verification code xxxxxxxxx

Coupon-mad

I agree not to appeal as Arval, I meant was it a company that leases the car from Arval? If not, then it's you - and you are the 'hirer/lessee' of the vehicle so you can add that despite being advised that you are the hirer, no 'Notice to Hirer' has been served to you (check Schedule 4 for the requirements that need to accompany a Notice to Hirer and were missing). Quote it.

Delete point 6 as it's old and already within point #3, which I would re-name 'NO GENUINE PRE-ESTIMATE OF LOSS AND NO SIMILARITY WITH PARKINGEYE V BEAVIS'

Who was given the POPLA code - you or Arval?

Poplaappeal

Thanks Coupon

I lease it personally so I will add there was no notice to Hirer and quote the relevant section - (even though I appealed in the first place at the keeper not lessee -Will that matter? Arval didn't give them my details so not sure how they could have contacted the lessee to comply?)

They rejected the appeal (quoting Beavis as you will see below), and they have supplied the Popla code to myself, but I wanted to wait past Day 56 to be sure they didn't reissue a NTK before going to Popla

On this occasion the appellant refused to provide admission of driver at the in house appeal stage,
despite a polite request for this information and so our Collections Agency were instructed to obtain
details from DVLA and issue a formal Notice To Keeper as the appellant was not entering into the spirit of
the legislation provided in the form of POFA 2012. We have had confirmation from the British Parking
Association that we are able to run both POFA 2012 and our in house appeal stage simultaneously
providing we do not escalate the charge in any way. Below, the appellant is provided with the full
payment terms again so we have met this criteria when using POFA 2012 to hold the keeper of the
vehicle liable should they not provide the driver information/details or the appellant not provide them. The
appellant has therefore failed to respond in the spirit of the legislation introduced, in that we have
requested the driver details and he has failed to comply. Put quite simply, If he is the driver he should
accept he is the driver, if he isn’t the driver he should inform us who they are so we are able to pursue
them.

You have mentioned pre-estimate of loss as a reason for your appeal. In the case of Parking Eye Ltd v
Beavis, heard at the Supreme Court on the 4 th November 2015, you may be aware that the judge ruled
that a Parking Charge may be considered a deterrent for overstaying/parking in breach of the terms and
conditions of a private car park in general, but the intention to deter was not sufficient to invalid the term
of the contract or license with the driver. The Parking Charge made is not a penalty and the issue of
genuine pre-estimate of loss is therefore not relevant. Local authorities make similar parking charges and
there is no reason why the private parking industry can’t. Parliament has supported (via the Protection of
Freedoms Act) that such parking charges can be made so long as they are brought to the attention of the
motorists at the time of use of a car park which we have done by erecting clear signs to inform drivers.

Coupon-mad

even though I appealed in the first place at the keeper not lessee -Will that matter? Arval didn't give them my details so not sure how they could have contacted the lessee to comply?

Well the hirer/lessee is the keeper (same thing in your case; you are not the registered keeper but you are the keeper of the car). And the PPC also KNOW this is a Leased car because they got Arval's data and Arval are a lease hire firm so there is no debate that you are the lessee/hirer as well as the keeper.

And there is no debate that they have never sent you either a NTK nor a NTHirer. Sending one to Arval (the owner) is not enough - and clearly they are trying to hold YOU liable (not Arval) so...they needed to send you a Notice because they know you are the keeper, not Arval. They didn't send you one. So, they lose, as long as you can explain this to POPLA.

The PPC could not have got the documents they needed. But that's tough on them! The POFA says they have to serve them with any Notice to Hirer!!

Put quite simply, If he is the driver he should accept he is the driver, if he isn’t the driver he should inform us who they are so we are able to pursue them.

You need to rebut the above to POPLA because that simply is not true. You do not need to do anything of the sort and they've failed to meet the requirements of Schedule 4 by failing to serve you (the keeper/hirer/lessee) with either a NTK or a NTH, simple as that.

You also need to address the differences between this case and the Beavis case (without saying who was driving of course).