NCP Epping LUL Ticket - Not parking in bay

rakeyshpatel

Evening,

I have successfully fought some PCN with help of advice on this forum but this time I feel I need little more hand holding and here I am.. I hope someone can help.

My better half picked up a ticket at Epping LUL by NCP for not parking in bay. Whilst I am most annoyed about it, in her defence, it was pitch dark at 7am in the morning and it was raining heavily. So if I have to pay for it, I will but in principle, I am against paying this cowboys PPC. Plus, they happily took £6.50 daily parking charge and gave her ticket in return!!

Enough of soap operas... Got the ticket and appeal based on the genuine reasons, namely 1) lack of lightings and signage 2) had paid £6.50 daily parking charge. And as you've guessed by now, it was rejected. I now have POPLA code and need some assistance please. Having done my research, I am going with following and would appreciate an assistance -

My Draft POPLA Response

Dear POPLA

PCN Number: xxx
POPLA Verification Code: xxx
Vehicle Type: xxx
Vehicle Registration: xxx

I write to you as the registered keeper of the vehicle, I wish to appeal the £100 parking charge notice (PCN) issued by NCP.

I submit the reasons below to show that I am not liable for the parking charge:


1) Railway Land is Not ‘Relevant Land’

Since bylaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.


2) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their 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. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put NCP to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between NCP and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to NCP.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land.

Section 7.1 states:
“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states:
“The written authorisation must also set out the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined, any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation, any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement, who has the responsibility for putting up and maintaining the signs, and the definition of the services provided by each party to the agreement.''

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a Train Operating Company “TOC” gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay NCP (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce bylaws themselves, only the TOC or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court. NCP have no standing to enforce 'parking charges' or penalties of any description in any court.

I put NCP to strict proof of compliance with all of the above requirements


3) Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BPA Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision".

After inspecting the signs last week, I noted that the signs have a light blue background and text is dark blue, making the text difficult to read. The small print of the signs are impossible to read unless you are up close. If the driver was intending to pay via the DASH Parking app, there are no terms and conditions whatsoever listed in the app, making it impossible for the driver to know they weren’t allowed to park where they did. They would, therefore, only see the signs by the entrance to the carpark which are impossible to read when driving, particularly if it was dark when arriving.

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road.

Furthermore, the signage states a PCN "may" be issued. That is not a clear unambiguous warning.

The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.


4) Neither irrelevant case law (ParkingEye v Beavis, which is not applicable) nor the remedy under the Railway bylaws can support or provide a rationale for this disproportionate private parking charge.


a) It is believed that this land is covered by Railway Bylaws and I put NCP to strict proof to the contrary. As such, the remedy for any breach is an actual 'penalty' as defined in those bylaws. Prescribed statutory rules (not the BPA CoP) apply to penalties and the offer of parking is made by the Train Operating Company (TOC) or landowner, only by virtue of the bylaws, in the same way that any offence can only flow from defined restrictions within those bylaws. A parking offence can only be pursued in the Magistrates Court by the landowner / TOC themselves which is the only true legitimate interest on this land which is under statutory control.

The car park is already offered / controlled by the TOC which has the lawful remedy of a bylaws penalty open to them. There is no 'legitimate' interest in NCP re-offering the spaces under wholly different terms and charging £100 for their own profit. Two separate sets of terms, obligations and remedies relating to the same parking behaviour cannot co-exist; the land falls under bylaws so there is no scope for what seems to be potentially, a bribe: 'pay us £100 and we won't tell the TOC to pursue the matter under the applicable bylaws'.

Where there is any ambiguity regarding duplication or confusion in contractual or statutory terms / charges or obligations, the interpretation which most favours a consumer must prevail. In this case the interpretation which most favours a registered keeper appellant, is that NCP have no 'legitimate interest' in imposing their own 'charge' instead of a bylaws penalty, which only applies to an established driver.

NCP or the TOC should have identified the alleged offender and the TOC should then have followed their own bylaws procedures; their only legitimate interest in the matter, if they believed there was a case against the driver that day.


b) NCP seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (NCP and ParkingEye) described the sum as a 'parking charge'.

There the similarities end. The Beavis case has no application here, except in favour of my case as appellant.

That decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a tangible sum.

This is clearly a 'standard' monetary dispute over an alleged unpaid tariff.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to NCP.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty.

But this case can easily be distinguished from Parking Eye v. Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 60. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 because the Beavis case rationale does not apply to standard contracts.

In Beavis, the difference was there was no small sum owed and so, to reach their decision, the Judges had to consider other interests and the value of the free licence to park at that location made it a far more complex contract than this one. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case. The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation.

This sort of contract was not under discussion in the Beavis case. In fact, the Supreme Court considered that Lord Dunedin's four tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant'.

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v. Beavis it is not disengaged by NCP merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “… the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with...”

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest NCP has in enforcing their £100 charge (or indeed instead of the TOC enforcing the penalty arguably arising under the bylaws) is NCP's profit alone.

This position is reinforced in the earlier judgment from the Court of Appeal, where the judgment states:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148:

“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

The Consumer Rights Act 2015 includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed and is the fundamental legislation relating to standard contracts between traders and consumers. It is applicable to this case.

The ParkingEye v. Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

Yours faithfully

Registered Keeper of Vehicle.

KeithP

Have a look at this thread:

forums.moneysavingexpert.com/showthread.php?t=5578524

twas won at PoPLA.

rakeyshpatel

Thanks. A QQ - Should i pick the "I was not improperly parked" option as that seems to be the only one that covers signage? Or is that going to void my claim as i wasn't technically parked within their guidelines.

Coupon-mad

Got the ticket and appeal based on the genuine reasons, namely 1) lack of lightings and signage 2) had paid £6.50 daily parking charge. And as you've guessed by now, it was rejected.

If you shot your toes off by admitting or implying who was driving, you can't even use your point #1 'not relevant land' nor appeal 'as keeper'.

Should i pick the "I was not improperly parked" option

No-one here does, but that's because we don't appeal saying who was driving, so would never use the words 'I' and 'parked' in the same sentence.

The NEWBIES thread post #3 tells all to appeal under 'other', but you may have shot those toes off?

rakeyshpatel

Happy Friday everyone! I have an update on my appeal to POPLA as following and have 7 days to respond -

The appellant in their initial appeal to NCP claim they arrived at the station and drove around the car park to find a space but could not locate one. The appellant claims as they were about to drive out of the car park they spotted a place next to another vehicle which they promptly parked in. They claim they paid to park and feel the alleged breach does not constitute a contractual loss of the £100 parking charge. In their appeal to POPLA however they claim they are appealing as keeper of the vehicle and choose not to state who the driver was on the date of event, they claim that the signage at the car park was not prominent or clear and railway land is not relevant land. The appellant claims NCP have no landowner authority to pursue charges or form contracts with drivers, they claim a notice to keeper was never sent and therefore no keeper liability can apply.

We appreciate the appellant’s comments; however, they have confirmed they were the driver on the date of event and were not parked within a marked bay. We note the motorist states they parked next to another car, other vehicles parking outside of a marked bay does not set precedence or entitle all vehicles to do the same, it is the motorists responsibility to ensure they have parked according to the terms and conditions of the car park. Payment for parking does not guarantee a parking bay will be available and is not permission to park outside of the bay markings. The Terms and Conditions advise motorists that should they be unable to find a vacant parking bay they should leave the car park and seek alternative parking arrangements. Were all of our customers to share the appellant’s sentiment, and park their cars wherever they deemed appropriate, then this would pose a significant risk to pedestrians, drivers and their vehicles. Had the appellant called the NCP customer service telephone number at the time of event, they would have been able to gain advice on the best course of action in the circumstances.

This Parking Charge Notice was issued in a Non Pofa car park and issued under breach of contract. The Parking Charge Notice was not issued under Bylaws. We appreciate that Railway station car parks generally issue a Penalty Charge Notice under these bylaws, however the landowner has authority to issue under Breach of Contract instead and as such register to with the British Parking Association offering the POPLA services should they wish to do so rather than issue a Penalty notice (Bylaws) which would not allow the motorist the opportunity to use the service of POPLA.

The appellant questions the operator’s authority to manage the car park, issue and pursue motorists for the unpaid parking charge notice fees. NCP has a rolling contract with the landowner to manage and issue PCN’s at all its locations nationwide. (Please find a copy in section G) The operator has installed multiple signs and payment machines etc. throughout the car park which have been in place for a number of years previous to the issue of this PCN. It is clear that should the operator not have the required contracts and authority to manage the car park the landowner would have sought the removal of the operator from this car park through legal channels when initially the operator proceeded to manage the car park.
Had the appellant entered the site and found the entry signage was not visible enough to determine the sites Terms and Conditions; as they are aware of Terms and Conditions being in place, it is their responsibility to check for signage once parked within the car park in order to read and abide by the regulations in place. There is signage on the entrance to the car park and multiple signs located throughout the site. NCP also place signage close to the pay and display machines in order to bring the Terms and Conditions to the attention of motorists. The Size and the font on the signage is British Parking Association approved and the BPA have indeed praised NCP for displaying signs larger than they recommend in their code of practice. Unfortunately, the signage by its very nature has to be more detailed than used by other operators as NCP own the locations as well as enforcing the Terms and Conditions, which unfortunately results in more detail having to be provided. NCP is the best known brand in parking and as such generally it is known that if you enter an NCP site you will be expected to pay for parking and follow all Terms and Conditions on site.

In a similar case (4362236298) POPLA refused the motorists appeal stating - The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.
We note the appellant’s comments that the parking charge notice amount is excessive, however the vehicle was parked at this location in the site in full knowledge of the terms and conditions of the site, one of which being that if the terms and conditions were not complied with a parking charge notice for £100 would be issued; When parking on private land, a motorist enters into an agreement to abide by the terms and conditions of parking in return for parking at the site.”
The appellant states the PCN fee is not a genuine pre estimate of loss however; the Supreme Court has dismissed the appeal in the ParkingEye v Barry Beavis case in which this issue was raised. The decision provides clarity on the use of contract law for parking on private land. The ruling supported the view of the Court of Appeal judges in April this year and that of Judge Moloney that the charge should be an effective deterrent.

There is signage on the entrance to the car park and multiple signs located throughout the site. NCP also place signage close to the pay and display machines in order to bring the Terms and Conditions to the attention of motorists. The Size and the font on the signage is British Parking Association approved and the BPA have indeed praised NCP for displaying signs larger than they recommend in their code of practice. The appellant had the opportunity to observe the sites Terms and Conditions when gaining the information on how to pay and how much to pay for a parking session as the Terms and Conditions are stated on our website and on the pay and display machines on site.

Paragraph 5 of National Car Parks Terms and Conditions clearly state it is important to the effective management of the Car Park: paragraph 5b states that you park within the limits of a marked bay.

Paragraph 10.5 states The Parking ticket, coin chip. Booking confirmation or season ticket issued to you is only valid for the vehicle in respect of which it is issued. Neither a parking ticket, a coin chip, booking confirmation, nor season ticket entitles you, unless otherwise specified, to any particular space in the car park or to priority over other customers. If you decide not to park or are unable to find a space, you should exit the car park in your vehicle immediately to prevent any parking tariff charges from arising.

It is the responsibility of every motorist to observe and comply with the Terms and Conditions our facilities are provided and managed under and by leaving the vehicle the appellant indicated their acceptance of our displayed conditions and equally accepted that a PCN would be issued for non compliance of the displayed conditions.

To conclude the PCN has been issued correctly for a clear breach of the displayed conditions and NCP have submitted sufficient evidence to support the enforcement of the Notice.

POPLA state decisions will be based on finding of fact; the facts are that the appellant parked in clear breach of our displayed Terms and Conditions and NCP trust that POPLA will find no reasonable grounds to allow this appeal.

Do I have any leg to stand on this?

with hope,
RP

Coupon-mad

Do I have any leg to stand on this?

I think you've missed the point that even if you lose at POPLA, no-one PAYS a firm like NCP! This is just an exercise, it seems you shot your toes off in the first appeal but so what really! You still need to comment on the 'evidence' in the hope of POPLA agreeing with you and getting it cancelled (not that you will pay NCP if not).

Unfortunately, the signage by its very nature has to be more detailed than used by other operators as NCP own the locations as well as enforcing the Terms and Conditions, which unfortunately results in more detail having to be provided. NCP is the best known brand in parking and as such generally it is known that if you enter an NCP site you will be expected to pay for parking and follow all Terms and Conditions on site.

Errrm..but they don't OWN the site!

NCP has a rolling contract with the landowner to manage and issue PCNs at all its locations nationwide.

What does this contract at G look like, please show us a BROKEN LINK...break the URL up (or edit it/remove the http) and show us that landowner authority. Doe s it name this site? Who signed it, what date, how long does it say it runs for?

Please don't reply that as a newbie you can't post working links...not asking for a working link.

Handbags-at-dawn

wrote:

Payment for parking does not guarantee a parking bay will be available and is not permission to park outside of the bay markings. The Terms and Conditions advise motorists that should they be unable to find a vacant parking bay they should leave the car park and seek alternative parking arrangements.

...... If you decide not to park or are unable to find a space, you should exit the car park in your vehicle immediately ........

So on their own evidence the offer to provide parking closes once the bays are all full. No space, no contract. At worst, you were a trespasser and LUL, the holder of the land, suffered no loss. It's arguable, anyway.

Re the NCP/LUL contract: you can find a copy of it here:
https://www.whatdotheyknow.com/request/415578/response/1011604/attach/4/TfL%2091322%20Signed%20Contract%2023122014%20Redacted.pdf?cookie_passthrough=1
It requires NCP to pursue unpaid tickets through POPLA and debt collectors, but it does not give them authority to do pursue anyone in court.

Handbags-at-dawn

Don't know what happened to my post above - it disappeared off to the Far East and I couldn't find a way of bringing it back.

Anyway, what I was trying to say was this:

On their own evidence, NCP make it clear the offer to provide parking closes once the bays are all full. No space, no contract. At worst you were a trespasser. LUL, the holder of the land, suffered no loss.

As for the NCP/LUL contract, the link in my post above takes you to it. It requires NCP to pursue unpaid tickets through POPLA and debt collectors, but it does not give them authority to pursue anyone through the Courts - which is presumably why they don't do Court for these carparks.

rakeyshpatel

Thank you so much for your assistance. I guess it was my haste in logging the first appeal and made that rookie mistake!

I have up load ed the document on the lynk here --> hatch tea tea pee s : /3W scribd com/ document/ 370724672/ From-NCP

That's my best shot of breaking it down; here's hoping it works?

Thank you again!

KeithP

https://www.scribd.com/document/370724672/From-NCP

Some of the pictures are sideways.


p.s. a simpler breaking of the link would be:
hxxps://www.scribd.com/document/370724672/From-NCP

much simpler to reconstruct too.

rakeyshpatel

Thank a lot! I clearly have a lot to learn!

R.