LUL Station Car Park PCN/ POPLA stage

KobeAlt

Hi,

I received my first parking ticket.

There was construction going at Walthamstow station (london underground) car park and hence there was limited parking space. I saw a number of cars (about 10) parallel parked next to the rails. I saw one space left and obviously grabbed it.

When I returned I found a parking ticket on my windscreen (as did everybody else) by NCP for not having parked in a bay. Seems a bit unfair since at the time everyone was parked up and it looked like a it was fine to park there. I don't know if I have a leg to stand on as I technically was parked in a spot where there was no parking bay.

Im almost at the 14 day mark so it would be great to know..Is it worth me appealing or should I pay?

These are just 2 of the images NCP provided.
imgur.com/17Guu7y
imgur.com/V3wKqla

Thanks

Update: Stage 1 appeal rejected. Now applying to POPLA

pogofish

Don't get reeled-in by the fourteen day "discount" - that's there for the complete mugs.

Start by reading the Newbies Sticky carefully to inform yourself properly and see the options for seeing this-off.

The_Deep

Of course you should appeal, all PPC sare scammers, and, in a very large number if cases, have no right to demand a penny.

As for legs on which to stand, you have several, timeliness, contract, standing, compliance, and signage to name a few. It is not painting by numbers, but not brain surgery either, and you will be expected to put in some hours reading.

Fruitcake

As this was a station the chances are that byelaws apply. If that is the case then the scammers are stuffed.

Start by sending the BPA template in blue from the NEWBIES thread as keeper around day 26. You could carefully add, without revealing the driver's identity that since byelaws apply, this is non relevant land as far as the POFA 2012 is concerned so neither the driver or keeper can be held liable. Consequently the scammers have no chance of success at PoPLA, so they should cut their losses and cancel now.
Just make sure you don't reveal the identity of the vehicle owner, who as far as anyone is concerned is neither the driver or keeper.
Although it is not as critical where byelaws apply, it is good practice never to identify the driver where private parking charges are concerned.

Byelaws are statute barred after six months so you need to drag this out slowly and carefully by only appealing as late as possible to the scammers, then to PoPLA.

This is all explained in the NEWBIES., but make sure byelaws apply first. Even if they don't, you will have several other appeal points at PoPLA.

waamo

Pay up? What kind of madness is that?

KobeAlt

Thank you for your replies. I will appeal. Very unfair since I had paid the initial charge to park in the car park in the first place!

Coupon-mad

Yes but you won't be saying that, because the NEWBIES thread tells you not to say who was driving.

KobeAlt

Quick update: I received a rejection 2 days ago and now have a POPLA code. I tried to find some information on other threads but I couldn't in regards to when I should appeal to POPLA.

Does timing matter? Newbies forum tells you to wait till day 26 in Stage 1, should I do the same for POPLA or appeal straight away?

KobeAlt

I've drafted up a POPLA appeal now so that I won't forget about it or worry about having to do it later.

Please let me know your thoughts.

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from NCP. I submit the reasons below to show that I am not liable for the parking charge:

1. No Keeper Liability
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. Railway Land is Not “Relevant Land”
4. No Evidence of Landowner Authority
5. No Owner Liability
6. The signs in this car park are not prominent, clear or legible from all parking spaces

1. 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.

2. 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.''

3. Railway Land is Not “Relevant Land”

The NCP operated car park at Walthamstow 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.

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.

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.

4. 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

5. No Owner Liability

NCP’s position is seemingly based on railway byelaws, which can be found at: www .gov.uk/government/publications/railway-byelaws.

The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.

From the evidence provided to POPLA by the operator, I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.

Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:

- POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
- Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.
[I declared myself the driver so is this line not valid?]

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed

6. 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

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:

Web link from TEMPLATE

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:

Web link from TEMPLATE

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 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.

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:

Web link from TEMPLATE

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

Web link from TEMPLATE

''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:

Web link from TEMPLATE

''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:

Web link from TEMPLATE

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 (from photos taken in the same lighting conditions) 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.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

Redx

KobeAlt wrote: »

Quick update: I received a rejection 2 days ago and now have a POPLA code. I tried to find some information on other threads but I couldn't in regards to when I should appeal to POPLA.

Does timing matter? Newbies forum tells you to wait till day 26 in Stage 1, should I do the same for POPLA or appeal straight away?

there are between 28 and 33 days to appeal to popla , regardless of when day 56 is ; so do not miss the popla appeal deadline and you certaionly do NOT have 56 days to submit a popla appeal

day 56 is 56 days after the event , where the event day is day zero

so put the popla appeal in as late as possible , but not missing the 33 days that is a theoretical maximum , if in doubt submit on day 28 (you can check the date of the code as its embedded in it)

KobeAlt

Apologies for the misunderstanding, I should have been clearer I meant that I specifically wanted to wait for day 56 after receiving the PCN so that I could mention I had not received a NTK if I hadn't by that date.

Says 28 days to appeal to POPLA on my rejection letter, so that is when I will be submitting the appeal (Day 56 after the event falls into this deadline so I won't be missing it.)

Thanks for the heads up though.