NCP london underground - outside of bay Update: Successful POPLA appeal

edited 20 February 2017 at 11:39AM in Parking Tickets, Fines & Parking
21 replies 2.9K views
cretoonycretoony Forumite
29 Posts
Fourth Anniversary 10 Posts Combo Breaker
edited 20 February 2017 at 11:39AM in Parking Tickets, Fines & Parking
update: NPC appeal denied, moving to POPLA
Update 2: After a long wait, POPLA appeal successful! Thanks guys

:beer:

So was slapped with a PCN from NCP £60 now £100 later charge at london redbridge station carpark (along with about 8 other drivers) for parking outside of the bay which I genuinely didn't think much of (Driving in rural areas, this is the norm for our carparks if it's not causing any trouble!). Here's a couple of pics of the situation and apparently where this charge was mentioned: imgur .com/a/HgcaQ (their evidence from the online PCN).

I appealed straight away online using a modified version of the step 1 letter template for "•There was insufficient signage" and "•The charge is disproportionate and not commercially justifiable" without reading enough into it and think i've made a mistake by doing so early, i didn't think initially i had much hope so thought i'd just give anything a shot. Is this worth carrying on with this any further or should i give up and pay? I understand this wasn't in a bay, that's fairly clear, but the carpark had more than enough room for this extra row and it seems like everyone else who was parking there agreed!

I obviously did not realise the penalty for parking in an unmarked bay would also be up to £100 and there was no other clear signs or road markings other than the ones mentioning the tarrifs and the one included in the picuture with the tiny terms and conditions. Any thoughts on what i should do next?

Cheers to anyone who could give us a hand with this!
«13

Replies

  • Coupon-madCoupon-mad Forumite
    96.8K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    Is this worth carrying on with this any further or should i give up and pay?
    Well, we've never lost a POPLA appeal v NCP and I don't expect that to happen now!

    Have you got a POPLA code? If so, use the template appeal points in post #3 of the NEWBIES FAQS thread, put them together and show us first, to check you have it right. A long detailed POPLA appeal should see off NCP. Easy!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • cretoonycretoony Forumite
    29 Posts
    Fourth Anniversary 10 Posts Combo Breaker
    Thanks for replying, I haven't got a POPLA code but I haven't had my appeal denied from NCP yet. Is this something I should receive once that's inevitably denied? I'm more than willing to go through a long detailed POPLA!

    Another thing, when using NCP's online appeal service it mentioned "If your PCN begins with the letters 'CP' or 'PC' you can appeal online by clicking here." My PCN number began with LU but i tried it out anyway and it still brought me to a page with an appeal option and a page with evidence photos etc. and allowed me to continue to the appeal page. I filled it out but I did not provide an address or phone number for them to contact me back on, only an email address. Does anyone know if something about having CP or PC letters in your PCN give you the privilege of being able to appeal online? Do i have to do it by post or am i missing something?

    I might also go through the online process a second time but provide a full address and contact number for them to get back to me on in case they have a problem with sending emails. "Not providing a correct current contact address" sounds like something i'll read in T&C's when i find out the charge has tripped in amount after a few months!
  • UmkomaasUmkomaas Forumite
    33.9K Posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭
    As the keeper of the vehicle, you must always give your name and address as this deflects the PPC from applying to the DVLA for the details, denying them the ability to invoke keeper liability - technical strategy, explained in the NEWBIES FAQ sticky. You must follow precisely the appeal instructions on the ticket, otherwise it gives the PPC the excuse to ignore the appeal, timing out the motorist from having the opportunity to appeal to POPLA.

    The PPC has 35 days to respond to a (properly constructed - name and address!) first appeal. The response will either be a cancellation of the charge, or a rejection of the appeal, with a 10-digit POPLA code included in the rejection letter.
    I'm more than willing to go through a long detailed POPLA!
    Long, detailed POPLA appeals are here, there and everywhere on the forum for copying and pasting, but your starting point will be the NEWBIES sticky, post #3.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • cretoonycretoony Forumite
    29 Posts
    Fourth Anniversary 10 Posts Combo Breaker
    Alrighty, did a second appeal with full address and will also post the appeal with evidence for good measure! It does say on the ticket "if you wish to appeal this PCN you should write to us in the first instance", so i'm sure you're right. I'll update with the next stage. Thanks guys, £60 is a lot of dough for me right after christmas!
  • Coupon-madCoupon-mad Forumite
    96.8K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    You won't be paying a penny.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • edited 16 January 2017 at 6:42PM
    cretoonycretoony Forumite
    29 Posts
    Fourth Anniversary 10 Posts Combo Breaker
    edited 16 January 2017 at 6:42PM
    Ok finally received my POPLA code, in the image they sent in the letter for evidence they have actually included an image of a sign from a different car park: imgur.com/a/87Qmk not even the same one they included as evidence online. [EDIT: imgur.com/a/ILMR6 seems on google maps there is actually a similar entrance sign (not actually the same as the one they have included but may include the same content) I did not read this when entering the carpark and it is not repeated other than maybe in small terms & conditions on the sign facing the parked cars. Note in the 2014 (and 2015) google street view images this doesn't exist so must have been added later. (also note the black circle around another car also doing something similar to me in 2014! and they apparently used to use a sign to mark the carpark as full.

    This kind of makes me worry, does this now mean my signage claim is null as maybe they added a new sign later to comply with some updated legislation to avoid these appeals?

    The only one I read (blue circle) did not include anything about bay parking other than in the small terms and conditions below. I will update with my POPLA appeal and would be very grateful if anyone could quickly skim through it before I send it off. I'm unsure what i could include however and which templates i can take from but i'll give it a shot.
  • edited 16 January 2017 at 9:21PM
    cretoonycretoony Forumite
    29 Posts
    Fourth Anniversary 10 Posts Combo Breaker
    edited 16 January 2017 at 9:21PM
    Is it best for me to just head down the insufficient signage route for this? I don't really have anything else i could mention in my POPLA appeal so i'm not sure what other templates would suit. All i can see that fits this appeal is coupon mad's insufficient signage post forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341 modified with some pictures of my case including the mention of the sign with the information on bay parking charges facing the incorrect way. Would this be enough for a case?

    Is it worth mentioning how bad this carpark is clearly laid out as 7 other cars also had tickets when the driver returned to the vehicle since this shows that it would not be a one off occasion and if there was adequate signage this would not be occurring? (obviously, noone would have parked there if they knew of such a huge charge)

    Another thing, on the POPLA website it gives you a choice of 4 grounds to appeal on:
    "My vehicle was stolen"  
    "I was not improperly parked" (includes:
    You did not overstay the free parking allowed in the car park.
    You paid the correct amount for parking
    Your car parking ticket was clearly displayed
    [b]The terms and conditions of the car park were not properly signed[/b]
    You were parked in an area where you were free to park
    You complied with the terms and conditions on the signage
    
    "The amount requested on the parking charge notice is not correct." 
    and "I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking".
    
    Or "Other grounds for appeal - Appeals based solely on the following grounds for appeal are less likely to be successful"
    
    Should i pick the "I was not improperly parked" option as that seems to be the only one that covers signage? Or is that going to void my claim as i wasn't technically parked within their guidelines.

    Sorry for the wall of text for anyone reading this
  • cretoonycretoony Forumite
    29 Posts
    Fourth Anniversary 10 Posts Combo Breaker
    How's this for the POPLA appeal? They seem to refer to ticket as being given the the "vehicle" and I'm pretty sure in both letters and tickets they never mentioned a driver nor anything about the keeper. They have included however that they're "confident that the signage and the PCN are compliant with all industry standards and to the BPA's code of practice to which we subscribe" so I dont think i can use "Landowner Authority".

    Dear Sir or Madam,

    I am appealing this car parking charge for the following reasons. The appeal was rejected from by NCP on the grounds that the requirements for motorists to park within the markings of a bay and the charges for not doing so are clearly displayed on entrance and throughout the facility of Redbridge LU station carpark. I do not believe that this is the case. Below is the appeal report I have complied to be overlooked by an POPLA assessor.

    (The images are included in the actual document)

    Thank you for your time in advance.

    • The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    Image 1: Main signage visible from carpark displaying tariffs and charges


    Image 2. Close up of tariff charges, mentions PCN for failure to pay tariff in small font. Does not mention bay parking charge

    Image 3. Lower portion of sign that may or may not include bay parking charges (illegible)


    Image 4 . View from entering car park as seen from a vehicle entering carpark. Sign labelled 1 is the main sign visible to carpark customer on foot and is referenced in images 1,2 and 3. Sign labelled 2 contains apparent further information about parking charges. Sign 2 faces entirely away from carpark.

    Image 5. Image supplied by NCP as evidence for signage possibly as sign labelled “2” in image 4. There are inconsistencies in this image notably building placement and carpark layout that do not match the Redbridge station carpark sign. This image was not originally included as evidence online and only as evidence in the postal appeal rejection from NCP.

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:



    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:





    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.




    Here, the signs are sporadically placed, indeed obscured and facing away from customers and may be hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. The main sign in question being one that is required to be read from a vehicle on the road. This information is not then repeated clearly on another sign explaining tariffs and other charges.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    bailii.org/ew/cases/EWCA/Civ/2000/106

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
    A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

    ''Right to claim unpaid parking charges from keeper of vehicle:
    4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

    (a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

    *Conditions that must be met for purposes of paragraph 4:
    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.
    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.''


    Thank you for your time and many thanks for looking over this appeal,
  • The_DeepThe_Deep Forumite
    16.8K Posts
    ✭✭✭✭✭
    You never know how far you can go until you go too far.
  • edited 17 January 2017 at 2:38PM
    cretoonycretoony Forumite
    29 Posts
    Fourth Anniversary 10 Posts Combo Breaker
    edited 17 January 2017 at 2:38PM
    Which part would you think i'd be able to use in my favor? Seems like in that thread they initially thought london underground was excluded but then realized they had their separate bylaws with similar legislation

    section 14
    content.tfl.gov.uk/railway-byelaws.pdf
This discussion has been closed.
Latest MSE News and Guides

Top savings accounts

Up to 1.7% fixed or 0.6% easy access

MSE Guides

24 craft beers for £26 delivered

Flavourly newbies only (norm £70ish)

MSE Deals