NCP PCN is it too late??

Thatguy

Hi there,
I've read the newbies post along with numerous others and read a lot of comments etc... saying don't start a new thread it's probably covered in the newbie's thread but I don't think I can trust my understanding of it so apologies.

The driver was parking at an NCP car park in Bedminster, Bristol for around 2 months every day. In that 2 months, they received 3 parking tickets. At the time they did a little reading, and figured they should just ignore them but I have been receiving letters from them and after reading more have found out I should probably have appealed!

The first ticket the driver received was on the 17/05/17 (81 days ago) and I have received a notice to keeper and now a 'keeper liability notice' on the 26/07/2017 which states...

"It is now too late to supply the name of the driver or to make a representation against the PCN. You are therefore requested to pay the amount still outstanding of £100, by no later than the last day of the period of 14 days beginning with the day after the date on which this Keeper Liability notice is given.
If you do not pay the amount as above, in the allotted time, then your details will be passed onto our Debt collection agent who will seek to recover from you, the amount still outstanding as well as the debt collectors fees."

It then goes on about debt collectors taking legal action against me etc..

From what I can make out on the newbies feed, I should be ok to continue ignoring things?

The other PCN's were received on 07/06/2017 (60days ago) and 20/06/2017 (47 days ago) and have not received a Keeper liability notice for either of them yet, just notice to keeper letter. Should I appeal for these or is it too late and I should ignore them also?

Again, I am sorry for posting something that will have already been covered.

softwaremad

Notice to keeper must arrive by day 56 after event in order to hold keepe liable.

Check dates of events then relevant notices to keeper and the number of days in between

If 56 or more then no keeper liability exists and you can send them a letter stating that they have failed to hold you the registered keeper liable for any perceived debt as the relevant legislation to do so has not been abided by.

Anything receives under 56 days received. Then appeal as keeper stating clearly that the machines failed to take the new legal tender presented. Depending on signage in place and whether it lists other payment methods we would have to see that to address it

NCP use ZZPS. Absolutely useless at getting paperwork out on time

Redx

do not admit who was driving and edit your post above accordingly

the correct terms are

THE DRIVER

THE KEEPER

if the NTK has arrived LESS THAN 28 days ago you should appeal it using the blue text template , if in doubt - appeal anyway, with the blue text template

if the NTK arrived over 56 days AFTER the date of the incident , add an extra paragraph stating that they failed POFA2012 and should cancel the pcn as the keeper is not liable for the charge , so yes appeal anyway

if in doubt , ALWAYS , ALWAYS APPEAL to the ppc

on no account reveal who was driving , this is a definite NO-NO

ignore IS THE DEBT COLLECTOR LETTERS , LIKE DRP or ZZPS , never ignore a PPC parking charge notice (not in england or wales anyway)

Guys_Dad

Do nothing till the 3rd 56-day period has passed. And we are going by the date on the NtK plus 2 for delivery, not the date you actually may have received them.

Then, as suggested, tell them they have missed the boat quoting POFA referring them to

(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

Thatguy

Thank's both for your replies!
So here's the date breakdown of my tickets.

Ticket 1
Received: 17/05/2017
Notice To Keeper received: 21/06/2017 (+35 days)
Keeper Liability Notice Received: 26/07/2017 (+70 days)

Ticket 2
Received:07/06/2017
Notice To Keeper received: 12/07/2017 (+35 days)

Ticket 3
Received:20/06/2017
Notice To Keeper received: 25/07/2017 (+35 days)

With this information, I think they have responded within the allowable time constraints so I don't have a case against them there.

So from my understanding when I appeal they will likely reject my appeal and give me a POPLA code which I then use to write a lengthy appeal using winning appeals I can find on the forum.

Also, on the oldest of the tickets, the Keeper liability notice states that "It is now too late to supply the name of the driver or to make a representation against the PCN" does this mean it is too late to appeal or should I do it anyway?

Redx

ticket 1) needs appealing "as is"

ticket 2) needs appealing asap using the blue text template "as is"

ticket 3) needs appealing asap using the blue text template "as is"

each one needs the relevant pcn reference number adding

everybody has "a case"

forget about anything to do with "the driver"

yes get the popla codes and draft lengthy popla appeals, start on these now , after appealing all 3 of course

ticket 1) will be rejected with no popla code as you left it too late

Thatguy

With the ticket that is too late, what happens if I ignore further correspondence, or would I be better off paying it?

Again, thanks for your help

Umkomaas

Thatguy wrote: »

With the ticket that is too late, what happens if I ignore further correspondence,

'What happens if' depends on NCP. Probably debt collector letters (ignorable) and not much else. NCP are not currently litigious, but they do have 6 years to instigate court action.

or would I be better off paying it?

How would you be 'better off'? You'd be £100 worse off!

Waiting to see what their next move is costs you nothing more, so there's absolutely no advantage in throwing a hundred quid their way right now.

Relax and see where it goes.

Thatguy

Hi all,
I made my appeals and obviously they have been rejected.
On my next message, I will post my POPLA appeal, I would appreciate someone looking it over and give me any tips.

Points 1 and 4 are straight from the templates on the newbie's thread. On point 1 am I expected to put something where it has "[...]"?

Please check over point 2. I've taken it from another thread and amended a few bits and I'm not sure it applies to my situation given the dates I received documents but hopefully, it does

Thatguy

Appeal re POPLA code: .............................. v NCP
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.
2. NCP's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
3. 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
4. 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.
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:

'link here'

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:

'link here'

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:

'link here'

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

'link here'

''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:

'link here'

''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:

'link here'

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.


2. NCP's notice to keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11, and 12. NCP have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set timeline and wording:-

The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

The applicable section here is (b) because the NTK that I have received was delivered by post. Furthermore, paragraph 9(5) states:

’’The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The Parking Charge Notice sent to myself as Registered Keeper was produced in their offices showing a purported ‘date of posting of this notice’ which was already past the 14 days by which, under statute, it had to be in my hands/served. Even if they had posted it that day it would be impossible for the notice to have been delivered within the 'relevant period' as required under paragraph 9(4)(b).

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was, which brings me to my next point below.


3. 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.''

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

Coupon-mad

Thatguy wrote: »

Points 1 and 4 are straight from the templates on the newbie's thread. On point 1 am I expected to put something where it has "[...]"?

No, that just signifies the quoted words have been reduced to make the point. Some words have been omitted from the full quote. Have you never seen [...] in a quote before? That's all it means.

Please check over point 2. I've taken it from another thread and amended a few bits and I'm not sure it applies to my situation given the dates I received documents but hopefully, it does

Your point '2 is not relevant because it talks about an ANPR NTK (not a windscreen one like these) and gives the wrong deadline and wrong part of POFA Schedule 4. Needs to use one that talks about paragraph 8, not paragraph 9.

Read the Act Schedule for yourself, para 8. It's linked in the NEWBIES thread. Compare your NTK to it because I can't believe that NCP are using compliant ones all of a sudden?!

Was this a station car park?