PCN at Railway station

Thorsson

The land will be owned by Network Rail but leased to Abellio East Anglia Limited (Trading name Greater Anglia). NCP will be a contractor to GA.

Castlebay

Thorsson wrote: »

The land will be owned by Network Rail but leased to Abellio East Anglia Limited (Trading name Greater Anglia). NCP will be a contractor to GA.

Thank you very much - that's great. I'll post a draft when I've pulled it all together.

Castlebay

I've now drafted my appeal using info from other posts and successful appeals and adapting to the situation, esp the point about signage. I would be really grateful if the experts here could review it and let me know thoughts/changes etc I need to make. Most of the info re relevant land and byelaws referred to the driver but also just found something about only the owner can be held liable by TOC so not quite sure if I've got this right in my draft.

I'm still just within time limits for NTK but have included no notice to keeper as an appeal point on the assumption it's unlikely to appear now.

I think I need to copy Word doc to notepad and then post from there so will put it up shortly- probably split over a few posts. Thanks in advance for your help.

Castlebay

Section 1

As the registered keeper, this is my appeal about a Parking Charge Notice issued by NCP for an alleged breach of the company's terms and conditions in the Norwich Station Car Park.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

Vehicle Registration Number ####
Date of PCN
PCN Reference ####
POPLACODE: ####

Summary of appeal:

1. Railway Land Is Not ‘Relevant Land’.
2. NCP using Railway Byelaws for claims.
3. A compliant Notice to Keeper was never served - no Keeper Liability can apply
4. Appellant not being the individual liable.
5. No evidence of landowner authority
6. Non-compliant signage.
7. Bays are poorly and ambiguously marked


1) Railway land is not ‘Relevant Land’

Under Schedule 4 of PoFA 2012, section 1, it states that:
“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws 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 NCP 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 byelaws. Railway land, being governed by byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore NCP are unable to pursue the registered keeper in lieu of the driver’s details.

POPLA assessor Steve Macallan found in 6062356150 in September 2016 that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. As such, I am able to appeal as Registered Keeper (going by the POFA 2012 definition) but cannot be held liable under any byelaw because the Train Operator would have recourse only to pursue the owner via the Magistrates Court and that has not occurred. This is a third party agent pursuing the day to day keeper.

2) NCP using Railway Byelaws for claims

By claiming a charge is liable to them, it appears that NCP are attempting to claim this under Railway Byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay NCP. I also refer to Freedom of Information Act Request – F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in 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) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of byelaws is a criminal offence, not a breach of any contract NCP may say the driver entered in to. If the driver is found to have breached Byelaws 14 (1-3), the resulting penalty is paid to the government, not to NCP or the railway. Further, byelaw offences are decided by the court, not by NCP – the parking company or railway can only allege the breach.

3) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

NCP has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 of POFA 2012 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.

Castlebay

Section 2

4) Appellant not being the individual liable

NCP has not shown that the individual who it is pursuing is in fact the driver who was 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured. Where a charge is aimed only at a driver then, of course, no other party can be told to pay.

I am the appellant throughout (as I am entitled to be and as the Registered Keeper), 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.

NCP, in their rejection letter to the initial appeal submitted in relation to this charge, have confirmed they do not know who the driver is:

‘Please note to date you have not provided a serviceable address for the driver of the vehicle, therefore if this is not provided you, as the registered keeper of the vehicle, are liable for the Parking Charge Notice.’


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 NCP is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only 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 NCP, because they cannot use the POFA in this case, 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.

Understanding keeper liability

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

“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 the operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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 same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 1 above.


5) No Evidence of Landowner Authority

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. I do not believe that NCP has landowner authority and, as such, the operator has not met the requirements of this section of the BPA Code of Practice.

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:

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

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 byelaws themselves, only the Train Operating Company or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). NCP have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that NCP are entitled to pursue these charges in their own right.

I require NCP to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put NCP to strict proof of compliance with all of the above requirements.

Castlebay

Section 3 (final one)

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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

Insert Beavis case sign

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.

Insert photo

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, the main sign does not clearly mention or bring to the attention of the driver the parking charge, which is in a smaller font than much of the other wording on the sign - the most prominent features on the sign being the pictorial symbols.

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.''

Whilst the Operator has provided two photos of signs at the car park, these are close-up photos of the signs and do not indicate placement at the location or the size and scale of the signs.

Although the car park is described as Norwich Station (Forecourt), there are in fact two separate areas of the car park with different access points from the approach road as can be seen below.

Insert


At the top of the approach road there are signs directing drivers to the two different areas of the car park. Options are either to turn right across the traffic exiting the car park to enter car park area 1, which is to the side of the station building (signed ‘short-stay’) or to bear left following the road round to enter car park area 2 which is immediately in front of the station forecourt (signed ‘long-stay’).

Insert photo

The BPA Code of Practice states:

‘The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead’.

and

‘A standard form of entrance sign must be placed at the entrance to the parking area’.

The size, positioning, size of font and colours used make it impossible to read the sign without stopping and getting out of the car. For drivers who turn to the right to access car park area 1, it is not possible to read the sign without looking away from the road ahead. In fact any driver would have to look behind them over their left shoulder to attempt to see the sign whilst crossing the path of the exiting traffic – which would be extremely dangerous.




When entering car park area 1, where the vehicle was parked, there are two posts either side of the entrance marking the entry into this area with ‘IN’ on a sign at the top of each post. One of these posts also has a sign attached stating ’20 min parking area’ which is the only sign clearly visible to the driver. Markings on the ground are worn and obscured by traffic entering the area.

Insert photos

When parked in this area, there is no main entrance sign or terms and conditions sign and it is not possible to see the signs located in the other areas of the car park, ie on the side of the station building or on the forecourt. The driver is not able to see the relevant signs when parking.

Insert photo


The signs with terms and conditions are not located with the main car park sign and are placed in other areas of the car park. When looking out from the station entrance it is not possible to see where the signs are as they face away from the main area.

Insert photo

The wording on the Terms and Conditions sign is mostly illegible, being crowded and cluttered. 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. In addition, the lettering is white on a red background which makes it difficult to read and not in line with the following guidance in the BPA Code of Practice:

‘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’.


Insert photo

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 the 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.


7) Bays are poorly marked and ambiguously marked

The parking spaces in car park area 1 where the vehicle was parked are poorly marked with faded/non-standard lettering on the ground and use confusing terminology.

Some bays are marked ‘staff’ – these are the only bays which are clearly marked using numbering and double yellow lines

Insert photo

Some bays are marked ’20 mins’

Some bays are marking ‘season’

Insert photo


One area, alongside the external boundary with the street, is marked ’20 mins / seasonal’

Insert photo

As can be seen from this photo, it is not clear who can park in this area for the following reasons:

• the lettering on the ground is worn and faded.
• the use of a forward slash (‘/’) in English language normally denotes and/or therefore the bay marking indicates different uses are possible for that area
• it is not clear what is meant by ‘seasonal’ and how that differs from bays marked ‘season’ in the same area of the car park. The normal definition of the word ‘seasonal’ in the English language is ‘relating to or characteristic of a particular season of the year’.
• The word ‘seasonal’ appears to have been painted on the ground free-hand in non-standard lettering


I would also like to formally request to see all evidence presented by NCP regarding this appeal and the opportunity to refute any evidence submitted by NCP regarding this appeal.

To quote Henry Greenslade; a highly respected, longstanding lead adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA), with a reputation for fairness and high integrity.

From the Final Report:

''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''

and from page 15 of the POPLA Annual Report 2015:

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

waamo

Looks good to me.

Castlebay

waamo wrote: »

Looks good to me.

Thanks very much Waamo - that's great.

Castlebay

Will be uploading appeal soon - now I've worked out how to convert to PDF in Google docs! - and will check the 'other' box for the reason.

Just wondered if anyone can advise on likely timescales please. I will be away soon after uploading document for about 10 days and although I will have access to email most of the time, won't be able to do much more than that. So should NCP decide to submit an evidence pack which I would need to draft a rebuttal for, is that likely to happen within a couple of weeks of popla appeal submission? Many thanks.

Coupon-mad

No it's unlikely to be that quick, more like 2 or 3 weeks. Then you would have seven days to comment.

And NCP in fact, usually fold and offer no contest to a long POPLA appeal anyway!