NCP Parking Charge at London Underground Station: POPLA Appeal Stage.

kvu

Dear MSE Users

I have to say how grateful I am for all the information I have managed to find and read on the various threads. This information has given myself, and many others, the ability to fight for what is appropriate. Thank you!!

I currently have an NCP dispute involving parking at one of their London Underground Station (LUL) car parks.

Summary of events

• The driver parked said vehicle, as has been the case many countless times before, at an LUL car park.
• On this occasion, the payment (current day and forward two days) was attempted using the Android based payment app “Dash Parking.” This is how I, the keeper, always make payment, but on this occasion the app froze and no text message confirming parking was generated either – the text message isn’t always generated, but this was the first time the app crashed.
• I called NCP customer services, very unhelpful, who said they couldn't validate the payment, but I had to cash Dash Customer Services, as their systems would only show the payments made (or not made haha!) the next working day. I called Dash payments and there was no response from an advisor. I tried three times during the course of the day – still no luck.
• In the evening, approximately 11hrs after parking payment had been attempted, I received a text message confirming the parking had been made. The start time was not accurate (it was based on the text message sent time) and therefore excluded the prior 11hrs from the parking cover period, however it did correctly show the future parking was paid for the days ahead.
• Driver received a PCN on the windscreen 13/01/16.
• As NCP didn’t hear from anyone, they sent me a Notice to Keeper on 22/02/16 to which I replied using a document structured around POFA 2012 Schedule 4 comments and I also included Genuine Pre-estimate of loss comments.
• NCP responded with a letter, dated 04/04/16 that I only received 21/04/16, rejecting my appeal on the ground that
  1. At the time of issue, the parking attendant could not find details of a payment made by a cashless system. A record of a payment is there later in the day however the notice had already been issued.
  2. The notice to keeper was not issued under the protection of freedoms act 2012, it was issued in line with railway bylaws.
  3. The PCN of £100 was reapplied with a discount to £60 if paid within 14 days – not possible as the letter was received too late.
• POPLA code issued valid for 28 days – based on letter, dated 04/04/16, I would assume this will expire on 01/05/16.

Thoughts

So I basically should have researched a bit before sending my initial reply to the NTK letter, but heyho…we are where we are and I’ll live and learn. Hopefully, my summary above and the notes that will follow will give good and clear advice to the next MSE users that can benefit.

My response to POPLA has to be in the next few days so I’ve used what I have found to argue my case using railway bylaws and other relevant points picked up from the forums. I’ve stuck to POPLA beneficial facts, but I don’t know if I should include the point about payment made and it not correctly being processed.

I’d be extremely grateful if I could receive some feedback so I can submit my reply to POPLA.

kvu

My Draft POPLA Response

Dear POPLA

PCN Number: xxx
POPLA Verification Code: xxx
Vehicle Type: xxx
Vehicle Registration: xxx

I write to you as the registered keeper of the vehicle, I wish to appeal the £100 parking charge notice (PCN) issued by NCP.

I submit the reasons below to show that I am not liable for the parking charge:


1) Railway Land is Not ‘Relevant Land’

Since bylaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.


2) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator 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, NCP 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 neither 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 NCP to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between NCP 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 NCP.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land.

Section 7.1 states:
“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states:
“The written authorisation must also set out the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined, any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation, any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement, who has the responsibility for putting up and maintaining the signs, and the definition of the services provided by each party to the agreement.''

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a Train Operating Company “TOC” gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay NCP (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce bylaws themselves, only the TOC or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court. NCP have no standing to enforce 'parking charges' or penalties of any description in any court.

I put NCP to strict proof of compliance with all of the above requirements


3) Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BPA Code of Practice, it actually states:

"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".

After inspecting the signs last week, I noted that the signs have a light blue background and text is dark blue, making the text difficult to read. The small print of the signs are impossible to read unless you are up close. If the driver was intending to pay via the DASH Parking app, there are no terms and conditions whatsoever listed in the app, making it impossible for the driver to know they weren’t allowed to park where they did. They would, therefore, only see the signs by the entrance to the carpark which are impossible to read when driving, particularly if it was dark when arriving.

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road.

Furthermore, the signage states a PCN "may" be issued. That is not a clear unambiguous warning.

The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.


4) Neither irrelevant case law (ParkingEye v Beavis, which is not applicable) nor the remedy under the Railway bylaws can support or provide a rationale for this disproportionate private parking charge.


a) It is believed that this land is covered by Railway Bylaws and I put NCP to strict proof to the contrary. As such, the remedy for any breach is an actual 'penalty' as defined in those bylaws. Prescribed statutory rules (not the BPA CoP) apply to penalties and the offer of parking is made by the Train Operating Company (TOC) or landowner, only by virtue of the bylaws, in the same way that any offence can only flow from defined restrictions within those bylaws. A parking offence can only be pursued in the Magistrates Court by the landowner / TOC themselves which is the only true legitimate interest on this land which is under statutory control.

The car park is already offered / controlled by the TOC which has the lawful remedy of a bylaws penalty open to them. There is no 'legitimate' interest in NCP re-offering the spaces under wholly different terms and charging £100 for their own profit. Two separate sets of terms, obligations and remedies relating to the same parking behaviour cannot co-exist; the land falls under bylaws so there is no scope for what seems to be potentially, a bribe: 'pay us £100 and we won't tell the TOC to pursue the matter under the applicable bylaws'.

Where there is any ambiguity regarding duplication or confusion in contractual or statutory terms / charges or obligations, the interpretation which most favours a consumer must prevail. In this case the interpretation which most favours a registered keeper appellant, is that NCP have no 'legitimate interest' in imposing their own 'charge' instead of a bylaws penalty, which only applies to an established driver.

NCP or the TOC should have identified the alleged offender and the TOC should then have followed their own bylaws procedures; their only legitimate interest in the matter, if they believed there was a case against the driver that day.


b) NCP seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (NCP and ParkingEye) described the sum as a 'parking charge'.

There the similarities end. The Beavis case has no application here, except in favour of my case as appellant.

That decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a tangible sum.

This is clearly a 'standard' monetary dispute over an alleged unpaid tariff.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to NCP.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty.

But this case can easily be distinguished from Parking Eye v. Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 60. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 because the Beavis case rationale does not apply to standard contracts.

In Beavis, the difference was there was no small sum owed and so, to reach their decision, the Judges had to consider other interests and the value of the free licence to park at that location made it a far more complex contract than this one. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case. The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation.

This sort of contract was not under discussion in the Beavis case. In fact, the Supreme Court considered that Lord Dunedin's four tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant'.

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v. Beavis it is not disengaged by NCP merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “… the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with...”

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest NCP has in enforcing their £100 charge (or indeed instead of the TOC enforcing the penalty arguably arising under the bylaws) is NCP's profit alone.

This position is reinforced in the earlier judgment from the Court of Appeal, where the judgment states:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148:

“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

The Consumer Rights Act 2015 includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed and is the fundamental legislation relating to standard contracts between traders and consumers. It is applicable to this case.

The ParkingEye v. Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

Yours faithfully

Registered Keeper of Vehicle.

kvu

I will shortly upload pictures of the signs - I have one at the entrance and one at the payment terminal found in the car park. Both signs are hard to read. I was going to use vehicle number plates as a comparison to say at the same distance and location (side by sign) the number plates can be read, but the signs cannot, however I feel this might be against the law as I am displaying a vehicle number plate without the user's permission. Question is however, can I submit a private picture in this way as an attachment to POPLA or shall I just keep it simple and attach one or both pictures with number plates removed and no reference to them in my letter.

System

You say you "believe" they are covered by Bylaws?

http://content.tfl.gov.uk/railway-byelaws.pdf

pappa_golf

NCP say bylaws


long game of email ping pong required

Coupon-mad

kvu wrote: »

I will shortly upload pictures of the signs - I have one at the entrance and one at the payment terminal found in the car park. Both signs are hard to read.

I was going to use vehicle number plates as a comparison to say at the same distance and location (side by sign) the number plates can be read, but the signs cannot, however I feel this might be against the law as I am displaying a vehicle number plate without the user's permission. Question is however, can I submit a private picture in this way as an attachment to POPLA or shall I just keep it simple and attach one or both pictures with number plates removed and no reference to them in my letter.

I would not go with an argument about number plates.

Here is a railway station POPLA appeal recently which included relevant points:

http://forums.moneysavingexpert.com/showthread.php?p=70561688#post70561688

Do not keep it simple. POPLA are dreadful right now and need several points of appeal to stop them being so dumb as to keep telling keepers they are 'liable' without the POFA.

kvu

Coupon-mad wrote: »

I would not go with an argument about number plates.

Here is a railway station POPLA appeal recently which included relevant points:

Url removed as new user....

Do not keep it simple. POPLA are dreadful right now and need several points of appeal to stop them being so dumb as to keep telling keepers they are 'liable' without the POFA.

Thanks Coupon-Mad

The letter I drafted was using assistance recently provided to a member who had a similar case to myself. I believe you and some of the people who have commented so far on my thread also assisted there.
Do you think it is better to revert away from the current response that contains many references to the case on Beavis?
I think your advice has been "throw the kitchen sink at it" so that's what I was trying to do.
I could even add pertinent points from your link thread above and create one immense response haha.

Seriously, whatever your opinion thinks is best, I would value as a response as I have limited experience compared to the MSE users, such as yourself, here.

Many thanks in advance everyone.

Coupon-mad

I could even add pertinent points from your link thread above and create one immense response haha.

That's what I do! I have two mega POPLA appeals in at the moment for a fellow football fan and a colleague, not just a wall of words though. Lots of signage pictures dotted through the document to keep the Assessor awake! If I lose, I lose. I don't really expect to win 100% any more because POPLA are so shockingly diabolically badly trained - but I still always try v hard.

In your case I think, now, use a bit less of the Beavis argument (now we've learnt that POPLA just do not get it and spout the Beavis case back at you, wrongly applying it like a sticking plaster to the weakest of cases). Keep in the signage differences compared to the Beavis case sign.

POPLA have also leapt to the wrong conclusion that they can find someone liable to pay under the bylaws as owner, so you need to address that as well as bat away suggestions of a contract with the driver. They are two different things but NCP muddy the waters and POPLA will stir those waters if you let them because they don't get it that only a TOC can take a person to Magistrates court to enforce a bylaws penalty.

And that time is up after six months and never happens re NCP charges.

NCP 'PCCNs' are not penalties under the bylaws.

In the linked thread, perhaps the most useful bits to grab might be to quote CoP section 7.3 a - e in full, like that poster did, and also look at and adapt his point #2 which like yours, was a case where payment was made but allegedly 'too late'. Yet the argument against that is to use the bylaws to point out that there are no readable instructions 'at that place' which set any 'appropriate time' to pay.

Oh, and I didn't see a clear introduction telling the POPLA Assessor what happened, setting the scene. Talking about the driver in the third person of course but stating what you told us in the first post above, so they know the driver did take every possible step to pay sooner and DID pay as soon as the system allowed.

kvu

Submitted my POPLA appeal today. Seems like the process has changed since I did my last one with you having to select options that match your reasons for appeal the best and then having to fill out a summary of 2000 characters explaining different points. All done now. Will keep the forum updated when I hear back.

Coupon-mad

kvu wrote: »

Submitted my POPLA appeal today. Seems like the process has changed since I did my last one with you having to select options that match your reasons for appeal the best and then having to fill out a summary of 2000 characters explaining different points. All done now. Will keep the forum updated when I hear back.

Eeek, you do not have to do ANY of that. Oh dear. 2000 characters and you did only that? You can't even add to it now, POPLA won't let you. Did you not think maybe we'd done hundreds of these since it changed in October? Why didn't you ask or read the NEWBIES thread post #3 which tells you not to answer ANY of POPLA's questions but merely to choose 'other' and say ''here is my appeal attached'', and attach a detailed argument as a PDF, plus photos or whatever evidence you wish to add over and above the PDF appeal.

I hope you put a lot in and didn't mention GPEOL. Things have moved on. I showed you a decent railway station POPLA appeal to copy from and you could see that wasn't 2000 characters...on here they are often pages long!

kvu

Hi Coupon-mad

I selected the other option and submitted my 8 page letter in PDf format with my pictures of the signs taken. Even though, I didn't and should have research the newbies thread, I felt the "other" option was best for my needs to submit the letter - however I was just surprised at how it had all changed and thought I would mention it.

It's like they made it more complicated for no apparent reason at all.

Re GPEOL - I didn't mention that at all in my thread. I used a large combination of the items from my original letter with a blend of the decent railway final version letter (customised for my signs and keeper situation) coupled with a summary of my situation as highlighted in my summary of events comment at the start.

I do really appreciate your guidance and would really like to say thank you for being so helpful to all on this thread with your time. I definitely used the comments you provided and your efforts certainly made a difference.

Have a really nice bank holiday weekend and I'll post back as soon as I get my appeal looked at.