Stanmore LU NCP ANPR - should I POPLA?

mehdinami

Hello Folks,
I hope you can give me some guidance on whether I should appeal and if so on what grounds. I have been parking at Stanmore underground station for a while now (mon-fri). I used to use the DASH parking phone app on a daily basis but often found this to be unreliable. I have had an account with DASH (dashparking.com) since I began parking there. Stanmore introduced ANPR and the signs directed me to another website (parkandtube.com), this appears to be another website operated by DASH but is linked with the orginal, my account details work when I login. Due to login issues I spoke to DASH and they manually enabled ANPR, I thought this was done on my account as opposed to the vehicle (this was not made clear by the operator). So far so good - carried on parking and ANPR seemed to work. In Oct my wife purchased a car, on the same day I logged into my DASH account and added the vehicle. Subsequently over the course of 5 weeks, we used my wifes car on Mondays (as she too was travelling into London), and Tues -Fri I reverted to using the original vehicle. This is where things went south, I have received 5 PCNS for failure to pay. I assumed (wrongly) that by adding the vehicle to my account I had taken care of everything. My PCN appeals have been rejected and have the standard response to either pay or appeal to POPLA. I also wrote to DASH to no avail. Do I have any grounds for appeal ?

Carthesis

Does this DASH account show that payment was taken from your account for the days in question?

You had a reasonable belief that you'd done the right thing, and if their systems haven't done what they're supposed to, then this sounds to me like frustration of contract similar to if you were using a pay and display car park and the machines didn't work.

As an aside, always go for POPLA. It's basically a no-lose scenario for you, even if you lose!

Autolycus2000

It's railway land. Therefore the only people who can take you to court are TfL. And it has to be a magistrates court. And there's a time limit of 6 months for that.

So go down the POPLA route. They are currently putting all railway cases on hold so that helps get it closer to the 6 months timeout.

mehdinami

Thank you Carthesis & Autolycus2000. No payment was taken for the days which I received the pcn's for, all other days pre and post (tue-fri) are shown. And that's kind of the point, I didn't ever intend on evading the parking payment, just got lost in the process. DASH just got back to me and said it was my responsibility to not only add the vehicle to my account (tick), but then to also select the vehicle for ANPR. They sent me a 'how to' email. As per our advice I will appeal via POPLA, is there a particular format or wording you suggest. Or just write an essayas I did in my original post?

Carthesis

Check out the **POPLA Decisions** Thread.

Look for cases that match yours (i.e. byelaws cases), but certainly ones that ARE NO OLDER THAN 6 MONTHS OLD.

Coupon-mad

mehdinami wrote: »

Subsequently over the course of 5 weeks, we used my wifes car on Mondays (as she too was travelling into London), and Tues -Fri I reverted to using the original vehicle. This is where things went south, I have received 5 PCNS for failure to pay. I assumed (wrongly) that by adding the vehicle to my account I had taken care of everything. My PCN appeals have been rejected and have the standard response to either pay or appeal to POPLA. I also wrote to DASH to no avail. Do I have any grounds for appeal ?

So your wife, the keeper, didn't appeal but you did, as an admitted driver?

Luckily for you:

1. Railway bylaws can only hold an OWNER liable! haha!

2. A poster has just written a railway bylaws POPLA appeal you can plagiarise (no link given). clue - it's a MET one!

mehdinami

Hi Coupon-mad. Firstly, thank you. This forum has restored my faith in human kind! I'm very grateful for all the help everyone is offering me. Just to clarify, the PCN's were received by post and addressed to my wife as the registered keeper of the car. The appeals were submitted by me using my personal email address and signed by me (electronically). Does your response still apply? I think I have found the MET appeal you referred to, I tinkered a bit so it now reads :


Re: Appeal code xxxxxx for NCP Parking PCN xxxxx of 03 October 2016.

I wish to appeal the above Parking Charge Notice on the basis that:


1. the Operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge;
2. There is no 'keeper liability' since Byelaws apply at this car park.


The Operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.


In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an Operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an Operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the Operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the Operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the Operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


There is no 'keeper liability' since Byelaws apply at this car park.

This is not relevant land under PoFA 2012. This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the keeper).

The Operator is attempting to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to London Underground’s Byelaws taking precedence, and rendering this land outwith PoFA and outwith 'registered keeper liability'.

For this Operator to assume that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA documentary evidence from the landowner/client in possession of this site, or maps showing where the Byelaws cease to apply around this railway.


That completes my case for appeal. I request that my appeal is upheld.

I would also like to formally request to see all evidence presented by the Operator regarding this appeal and the opportunity to refute any evidence submitted by NCP regarding this appeal.


I'm a little lost on the second paragraph, I assume from the wording that it is my wife who must now appeal? and these lines "I am the appellant throughout (as I am entitled to be)" & "that a parking charge cannot be enforced against a keeper without a valid NTK"

mehdinami

Hi Coupon-mad, I can see just how inundated these forums get and feel a bit cheeky chasing. I was wondering if you would have a moment to review my last post. Thanks in advance. Oh BTW just received another PCN so the tally now stands at 6 )-:.

prjohnsonnn10

Hi chaps. I have some lengthy experience of dealing with railway companies and their parking'regimes'............. those attempting to collect under Byelaws are in a real knot here and cant actually legally enforce any of these so called £100/60 fines/penalties/invoices....call them what you will. Reason being that in Feb 2016 the DfT confirmed in writing that no body other than a competent Court court can impose any amounts under Byelaws. We have known this for some time but now its in writing - - see below or do a search under FoI site ... Mr Bostock takes the credit for finally extracting this from the Dft

I have appealed several recent cases using this letter and none of the train companies have been prepared to go to POPLA and have then cancelled the tickets...i wonder why!!

The written evidence i have is from MET and they claim to be looking to try and collect railway parking charges under the section 10 part which provides for ADDITIONAL costs incurred by a train company on top of a fine /penalty awarded by a court - say in event of the culprit having done say physical damage to property such as seats , your dogs creating damage to train property etc etc and then the byelaw allows for an amount of damages to be claimed over and above the statutory court awarded 'fine' I have this in writing from MET that this is their modus operandi and of course that letter aligned with this from DfT renders their 'charges' unenforceable as the part 10 additional amounts are only AFET and on top of a court awarded fine . So.....i suggest that if you want some sport then appeal on anything you like to the train company then try and elicit a statement from them EXACTLY how they are collecting it under Byelaws ie which section...then whizz in your POPLA appeal with the DfT letter also..... slam dunk

Dear R Bostock,
Freedom of Information Act Request – F0013227
Thank you for your further email of 10th February 2016 regarding your Freedom of Information (FOI) Act Request – F0013227.
Our original reply confirmed that the Department does not hold the information that you requested but provided some other relevant information which we hoped you would find useful.
In your follow-up email you stated that we had not answered your question and repeated it as follows:
“Please would you tell me if any Secretary of State for Transport since the coming into force of the Railway Act 1993 has ever confirmed or made any laws (including byelaws and regulations) which empower any person or body other than the Courts to impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.”
I have carefully reconsidered your original question and can provide the following response.
The FOI Act provides a general right of access to recorded information held by public authorities. Therefore I have interpreted your question as wanting to know if the Department holds recorded information on whether or not the Secretary of State for Transport has ever confirmed or made any laws, since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) of the Railway Byelaws 2005.
Having carried out a thorough re-examination of our paper and electronic records I can confirm that the Secretary of State has not confirmed or made any such laws and that no other person or body other than the Court is able to impose a penalty for breach of the Byelaws [including Byelaw 14 (1-3)] made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.
With regard to the period since the Railways Act 1993 came into force up until the Transport Act 2000 was made operational I can confirm that the Department does not hold any recorded information regarding these historical byelaws.
If you are unhappy with the way the Department has handled your request or with the decisions made in relation to your request you may complain within two calendar months of the date of this letter by writing to the Department’s Information Rights Unit at:
Zone D/04 Ashdown House Sedlescombe Road North Hastings East Sussex TN37 7GA
E-mail: FOI-Advice-Team-DFT@dft.gsi.gov.uk
Please see attached details of DfT’s complaints procedure and your right to complain to the Information Commissioner. If you have any queries about this letter, please contact me.
Please remember to quote the reference number above in any future communications.
Yours sincerely
Jeaur Rahman Correspondence Manager – Passenger Services

Umkomaas

@prj10 - nice to see you here posting again. Are you aware that POPLA is currently wringing its hands over what to do about byelaws appeals? All cases identified as byelaws-related are being stayed?

They seem incapable of coming to a decision, stuck between a rock and a hard place - the law on one side, baying PPCs on the other.

I wonder whether you'd been in contact with them on this? Maybe the R Bostock FOI reference might help tip them into making a decision.