NCP POPLA No NTK 2 months since parking, previousy admitted driving.

hodg3ko

Hello there.

Below is my first draft of shamelessly copied POPLA appeal points, I also have questions about things I may need to (or not) take out and put in..


1.Prior to joining those in the know, I made an online knee-jerk appeal to NCP following receipt of a windscreen ticket, and admitted that I was the driver – does this stop me from using the no NTK appeal point? NCP never wrote to me until over 2 months after the incident, and only then because I submitted a 2nd “appeal” online requesting a response to my first appeal. Subsequently NCP have replied with a POPLA code which is valid until mid-October even though the date of the windscreen ticket was early July.

2.Am I correct that POPLA no longer deal in the “not a reasonable reflection of the loss to the NCP” defense? I ask because I actually paid in full for the time I used, but because I left a gap (unintentionally) of 1 hour 15 mins and paid online for the 2nd day without being there I didn’t know until day 3 that the window PCN had been issued in that gap, but in total I paid for 2 full days and used less than the full time, if that makes sense? I noticed though that the newbie thread on decisions said it won’t win so I’m guessing it’s better to leave that out? Advice appreciated.

3.If the NTK defense is still in play, do I need to add my specific correspondence dates into that paragraph?

4.I didn’t actually check and signs etc. or take my own pics I just drove off thinking my original appeal highlighting my good intentions would lead to a show of good (yes I’m a fool) will and the carpark isn’t nearby so I can’t get any, should I still use that point about signs etc.?

Sorry for waffling, here are the paras I intend to use;

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



This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

The NTK must have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

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 - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - 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:

(removed link as I am new and not allowed)

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:

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

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''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:



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''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:



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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 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

Coupon-mad

Always throw the kitchen sink at parking firms about their signage even when you cannot add photos. It's for them to prove to POPLA that the signs were clear.

I made an online knee-jerk appeal to NCP following receipt of a windscreen ticket, and admitted that I was the driver – does this stop me from using the no NTK appeal point?

Sadly yes, that ship has sailed and the POFA doesn't help an admitted driver. So you cannot run your first appeal point (the 100% win for a registered keeper) in your case, sorry.

Am I correct that POPLA no longer deal in the “not a reasonable reflection of the loss to the NCP” defense?

Yes you are correct, but it's not just POPLA, it was a stupid (utterly CLUELESS about the scam industry they were propping up) Supreme Court 'decision' in 2015 that gave parking firms carte blanche to charge a ludicrous amount and not have to answer for any loss. So the argument was killed off and has no legs in a parking contract case.

I ask because I actually paid in full for the time I used, but because I left a gap (unintentionally) of 1 hour 15 mins and paid online for the 2nd day without being there I didn’t know until day 3 that the window PCN had been issued in that gap, but in total I paid for 2 full days and used less than the full time, if that makes sense? I noticed though that the newbie thread on decisions said it won’t win so I’m guessing it’s better to leave that out?

I would use the argument that the full 2 days were paid for, with a top up payment on the 2nd day paid remotely online, and that it is for NCP to prove what their signs say about online top up payments and whether drivers have a certain timeline to top up by, if leaving the car there during day 2, as you believed the signs do NOT state a time to do that by. You had no idea that it would be an issue to pay during the 2nd day, well before you returned to the car and left, and this cannot be argued to be an 'understandable ingredient' of a scheme, if it's not advertised.

You could also say that:

This distinguishes the case from Beavis because it is a PDT machine car park and the tariff allegedly due is a quantifiable sum of £1 or so if NCP are alleging that hour remained unpaid, which it did not.

Taking the findings of the Beavis case from the Supreme court, a charge of £100 when £1 was allegedly due IS an unrecoverable penalty, because this was a 'standard contract' which can only be considered in the light of Lord Dunedin's 4 tests for a penalty (as was clearly stated in Beavis):

i) Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

ii) Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

iii) Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do NOT resemble this case, whatever POPLA's ''sector expert'' spoon-feeds to POPLA in terms of custom paragraphs.

A PDT car park is the opposite side of the coin - it is indisputably a 'standard contract' and those words were used by the Supreme Court Judges (and at Court of Appeal stage) to differentiate PDT car parks.

If POPLA keep spouting irrelevant parts of the Beavis case at people, week in week out (even when the Appellant has not raised the section thrown at them by POPLA) then it is high time the public opened POPLA's Lead Adjudicator's eyes to some of the other compelling remarks in Beavis which actually kill a case like this and render the charge unenforceable.

An alleged unpaid tariff can ONLY be viewed in terms of a simple damages clause, where the sum allegedly 'owed' in debt is known. Moreover, this charge represents exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop:''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

POPLA's so-called 'sector expert' might begrudgingly admit to POPLA that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged and were actually repeated in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park.

Here, by contrast, this operator is trying to claim damages of £100, no doubt hoping for a POPLA Assessor who cannot properly interpret the intricacies of the Beavis case, or whose eyes glaze over/do not understand the Beavis decision and can only click the custom paragraph 'computer says no - the Beavis said this completely irrelevant thing too, and we've been told by the BPA to spout this' button.

But ParkingEye did not and could not have pleaded their case in damages - they would have failed. So do NCP.

hodg3ko

Thanks so much. One last question I hope, is there anything to be said about them not replying to my first appeal? I appealed to NCP online in July and their reply was dated 14th Sept - is that a failure in process I could use?

Coupon-mad

No, not relevant.