PCN for Hillingdon Tube Station

mcbearington

Thanks all for the extra info, that seems a rather cast-iron defence. I'll draft up an additional paragraph, which i will likely add in between parts 1 and 2 as it seems relevant to both.

mcbearington

Final draft of my appeal to POPLA - anybody have any other recommendations to make?

Dear Sir/Madam,
Re: Parking Charge Reference number [xxxxxxx]! Vehicle registration: [xxxxxxxx]

I am the registered keeper of the above vehicle and have received the above demand from NCP.

NCP has rejected my appeal, leaving an appeal to POPLA as my only recourse, using the following code: [xxxxxxxxx].

I have several points I would like to raise for my appeal.

First and foremost – the land on which the offence occurred is subject to TfL Railway Byelaws 2011

All London Underground car parks are subject to the byelaws, as confirmed by this Freedom of Information Request:
https://www.whatdotheyknow.com/request/tube_station_car_parks#incoming-1011604

While NCP Itself lists Hillingdon as one of its London Underground car parks (number 36)

https://www.ncp.co.uk/parking-solutions/london-underground-car-parks/

This means that NCP have no right to take any recovery action against the keeper.

Secondly - the charge is levied despite no driver having been identified
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.''

The NTK is not POFA compliant.

this is the point i am least clear on, and I'm not really sure if the wording of NCP's NTKs have changed since the post was made (20th August 2017) - largely I am skeptical due to the wording of the letter i received (posted above) which does refer to the keeper
Clearly, whilst NCP have correctly stated the 28 days timeline, the actual wording about how a keeper is liable/not liable, is seriously flawed and does not match the prescribed warning in 8(2)f of schedule 4, which is silent on 'making representations'. This NTK wrongly tells the keeper that, under the POFA Sch 4, they will be liable 'unless they comply with the above' which is a list of three options. It includes ''making a representation'' as one of the three choices. So, the keeper just has to ''comply'' by making an appeal, and going by the instructions in that letter, they can reasonably understand they are then not liable.

NCP have muddled one 28 day term (appeal) with a completely different thing (the POFA liability wording) and in doing so, prejudice the registered keeper's understanding about liability. There can be no other interpretation of that NTK than to believe that a keeper can ''comply'' by ''making representations'' within 28 days and therefore, they will then not be liable.

Any ambiguity in a consumer notice MUST be interpreted in the way that most favours the consumer (Consumer Rights Act 2015 says so, and it is trite law, under the doctrine of Contra Proferentem). Clearly, the interpretation of that notice that most favours the consumer is that the keeper has ''complied'' simply by taking option 3 and making representations, and NCP by their own wording, are accepting that fact and have stated under any interpretation, that a registered keeper who appeals, will not be liable.

Bad drafting of a notice or term is the fault of the trader and can never be used against, or twisted, assumed or interpreted to the detriment of a consumer. So, the PCN has not been properly given and the keeper cannot be argued as liable.

Unclear and obscure signage
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:

http://imgur.com/a/AkMCN

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.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:

http://www.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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.


No landowner authority
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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

mcbearington

No recommendations then? Wish me luck!

Ralph-y

give it a little bit .....

some of the forum wise owls are only just starting the evening stint

Ralph:cool:

Coupon-mad

The NTK is not POFA compliant.

this is the point i am least clear on, and I'm not really sure if the wording of NCP's NTKs have changed since the post was made (20th August 2017) - largely I am skeptical due to the wording of the letter i received (posted above) which does refer to the keeper
Clearly, whilst NCP have correctly stated the 28 days timeline, the actual wording about how a keeper is liable/not liable, is seriously flawed and does not match the prescribed warning in 8(2)f of schedule 4, which is silent on 'making representations'. This NTK wrongly tells the keeper that, under the POFA Sch 4, they will be liable 'unless they comply with the above' which is a list of three options. It includes ''making a representation'' as one of the three choices. So, the keeper just has to ''comply'' by making an appeal, and going by the instructions in that letter, they can reasonably understand they are then not liable.

NCP have muddled one 28 day term (appeal) with a completely different thing (the POFA liability wording) and in doing so, prejudice the registered keeper's understanding about liability. There can be no other interpretation of that NTK than to believe that a keeper can ''comply'' by ''making representations'' within 28 days and therefore, they will then not be liable.

I would say that is wrong now. They removed that flaw.

But it doesn't matter because byelaws land is not relevant land so there can be no keeper liability, as you rightly say in your appeal.

Handbags-at-dawn

You might also consider adding something along these lines:

Quantum of damages claimed
a) Pre-agreed damages for breach of contract must normally reflect a genuine pre-estimate of loss (GPEOL). Sums in excess of GPEOL are deemed to be penalties and are not enforceable. The rule in Parking Eye v Beavis provides an exception, whereby sums in excess of GPEOL may be recoverable if the claimant can show they are commercially justified. The burden of proof lies with the claimant.
NCP are claiming a sum that is grossly in excess of any possible GPEOL. Therefore commercial justification is an essential element of their claim. Since they have provided no evidence for this element, the rule against penalties must prevail and the claim must fail.

b) The Consumer Rights Act 2015, sched. 2 Part 1 draws up a list of terms which may be regarded as unfair. It includes at paragraph 6 a term which "has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation".
The sum claimed by NCP is disproportionately high in relation to the alleged breach. In all the circumstances of the case, including the absence of commercial justification, the term is unfair and in accordance with s62(i) of the Act it is not binding on the consumer.


Others with more experience of these appeals may say this is not a good tactic. The mention of GPEOL seems to be a bit of a turn-off as far as POPLA (whose assessor do not all have a full understanding of the law ) is concerned. On the other hand it might be good to force NCP to try and dream up some sort of commercial justification, which can then be attacked in response. It also might make NCP think responding to the appeal is too much trouble.

nosferatu1001

They just concern themselves with whetehr the PCN was issued correctly. Theyll state they have no legal training and cannot comment on CRA2015 etc.

Of coruse this shows how negligent POPLA are - you cannot run an appeals service based on consumer contracts WITHOUT having training in these areas, as these are binding legislation you must have mind of. BUt then the current operators of POPLA didnt even realise they were running an appeals service when they signed the contract, so competence isnt exactly strong with this lot...

mcbearington

how long do Popla usually take over appeals? I submitted on the 21st and just checked on their site it still says they are reviewing things. i suppose that is a good thing, i'd rather they were thorough, unlike ncp who rejected the appeal within the day.

Umkomaas

mcbearington wrote: »

how long do Popla usually take over appeals? I submitted on the 21st and just checked on their site it still says they are reviewing things. i suppose that is a good thing, i'd rather they were thorough, unlike ncp who rejected the appeal within the day.

Does depend on 'traffic', but I f it goes the full course (i.e. the operator doesn't withdraw) around 4-6 weeks.

mcbearington

Excellent news all:

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference XXXXXXXXXXX.

NCP Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely
POPLA Team

Thanks to all for your wonderful help and advice. Keep fighting the good fight!