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

The_Deep

Which part would you think i'd be able to use in my favor?


Probably POFA Schedule, keeper liability, breach of DPA, breach of Kadoe contract.

Coupon-mad

Search this forum for 'POPLA Indigo Railway Byelaws owner' and you should find wording that can be adapted for an NCP POPLA appeal, about no breach of Byelaws.

You should also talk about 'no owner liability' as Railway byelaws only hold an 'owner' liable. And owner is NOT assumed to be the same as a keeper.

You also need the template from the NEWBIES thread post #3 about the appellant not being shown to be the liable party (in this case, change 'driver to 'owner').

You also need the 'no landowner authority' template from post #3 of the NEWBIES FAQS thread.

See this one that has more points than your draft:

https://forums.moneysavingexpert.com/discussion/comment/71301228#Comment_71301228

Finally, also add a link and quotes from R Bostock's FOI request answer about byelaw enforcement:

https://forums.moneysavingexpert.com/discussion/comment/71636221#Comment_71636221

NCP will give up!

cretoony

Ok, thank you for the reply! How's this look? I included the quote under 2, i'm not very great at this so aplogies if this seems amateur!

Ticket number:
Vehicle registration number:
Dear Sir or Madam,
I write to you as the registered keeper of the vehicle , I wish to appeal the £100 parking charge notice (PCN) issued by NCP. 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.
Thank you for your time in advance.
I submit the reasons below to show that I am not liable for the parking charge:

1.The signs in this car park are not prominent, clear or legible from all parking spaces
2. Railway Land is Not ‘Relevant Land’
3. No standing or authority to neither pursue charges nor form contracts with drivers
4. A compliant Notice to Keeper was never served - no Keeper Liability can apply
5. The operator has not shown that the individual who it is pursuing is in fact the owner who may have been potentially liable for the charge
6. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice













1. 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

(same as above taken from #3 noobies post about signage)

2. Railway Land is Not ‘Relevant Land’

The NCP operated car park at Redbridge London Underground station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises.

The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)©. It says that “relevant land” means any land on which the parking of a vehicle is subject to “statutory control.”

A Byelaw is a long-standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

On the basis that Byelaws cover this station, it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.











I’d also like to include a quote from a FOI Act request F0013227 from a R Bostock regarding railway bylaw enforcement:
“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”

I would therefore need a detailed statement elicited from NCP for exactly how they would be collecting this charge under railway bylaws and which sections apply.

3. No standing or authority to pursue charges nor form contracts with drivers

I do not believe that NCP has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its 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.

I contend that NCP merely holds a basic licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent to car park users. I therefore require NCP to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits NCP to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.



For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.

In addition, Section 7.3 of the CoP states:

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







4. 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.












5. The operator has not shown that the individual who it is pursuing is in fact the owner 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 owner 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 owner 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 owner, 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.''

6. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement


Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point. Thank you for your time and many thanks for looking over this appeal.
Yours faithfully,

Coupon-mad

#3 is the same as #6 so delete the older version.

And under this paragraph before the FOI quote, add this bit I've put in blue below (to avoid stupidity by POPLA Assessors):

On the basis that Byelaws cover this station, it follows that the Protection of Freedoms Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.

POPLA Assessor please note that your Lead Adjudicator John Gallagher reminded the POPLA Team in December 2016, giving feedback after errors made where Assessors did not understand the term 'not relevant land', that the fact that a parking firm have not mentioned byelaws on their signs or notices does NOT mean that Byelaws land is suddenly not 'relevant land'. The fact remains, whatever the evidence pack may say about pursuing under contract law, that railway car parks fall under railway Byelaws. This land remains 'not relevant land' in law and nothing in the evidence pack changes that fact.

cretoony

Thank you. I replaced #3 with #6 (Whoops i missed that) and added your paragraph. Sent off to POPLA now, fingers crossed!

cretoony

Appeal has been withdrawn by the operator
Withdrawn on 17/02/2017,

Withdrawal reasons

Cancelled as a gesture of goodwill

Nice! Thank you so much everyone for the help. Appeal was successful!

The_Deep

Why not, as a gesture of goodwill, send them an invoice for wasting your time. They must surely have known that keeper liability does not apply on land under statutory control.

Autolycus2000

Is there any unnecessary "not" in this bit?

POPLA Assessor please note that your Lead Adjudicator John Gallagher reminded the POPLA Team in December 2016, giving feedback after errors made where Assessors did not understand the term 'not relevant land', that the fact that a parking firm have not mentioned byelaws on their signs or notices does NOT mean that Byelaws land is suddenly not 'relevant land'. The fact remains, whatever the evidence pack may say about pursuing under contract law, that railway car parks fall under railway Byelaws. This land remains 'not relevant land' in law and nothing in the evidence pack changes that fact.

Computersaysno

Autolycus2000 wrote: »

Is there any unnecessary "not" in this bit?

POPLA Assessor please note that your Lead Adjudicator John Gallagher reminded the POPLA Team in December 2016, giving feedback after errors made where Assessors did not understand the term 'not relevant land', that the fact that a parking firm have not mentioned byelaws on their signs or notices does NOT mean that Byelaws land is suddenly not 'relevant land'. The fact remains, whatever the evidence pack may say about pursuing under contract law, that railway car parks fall under railway Byelaws. This land remains 'not relevant land' in law and nothing in the evidence pack changes that fact.

Yes there is, just as you have an unnecessary 'y' in your post.

twhitehousescat

Autolycus2000 wrote: »

Is there any unnecessary "not" in this bit?

POPLA Assessor please note that your Lead Adjudicator John Gallagher reminded the POPLA Team in December 2016, giving feedback after errors made where Assessors did not understand the term 'not relevant land', that the fact that a parking firm have not mentioned byelaws on their signs or notices does NOT mean that Byelaws land is suddenly not 'relevant land'. The fact remains, whatever the evidence pack may say about pursuing under contract law, that railway car parks fall under railway Byelaws. This land remains 'not relevant land' in law and nothing in the evidence pack changes that fact.

or maybe


http://ispa.co.uk/hs-view/Minutes%20-%20IS...l%20version.pdf

page 4

2. POPLA and appeal process for Railway Land
There is a meeting on 27th January 2017 to discuss this issues. John Gallagher decided to
make a decision on the outstanding cases as they could not stay adjourned, he concluded
that he would allow them all. He has invited the Operators to withdraw them and will allow
the rest. He is meeting with with the DVLA, DCLG and the Railway Operators on the 27
January 2017 to agree the process including the appeals.
If you park in a railway car park it will be a criminal case and they will allow clamping, which
does not seem good practice.
One possibility is the DVLA to say that operators can continue to use POPLA but this means all
appeals will be dismissed. Currently they are bound by the decision where the appellant is
not. The alternative will be to take POPLA out of the equation and then it is pursued through
the criminal system