NCP final notice for overstaying

ohhdeeear

Sorry for not replying sooner, but thanks for your replies so far. Appeal sent in so wait to see if code forthcoming and then if I have the time and energy to keep fighting this stupid business which is a ridiculous waste of customers' time.

ohhdeeear

Hi anyone, who can advise me on next stage now please. So have POPLA code and have until next Monday to submit appeal (they say only 28 days to use).

Have results of SAR, requesting all correspondence - DVLA lookups, any emails between NCP and the retail centre which might be identified (although possibly not. Centre managers passed on my query of PCN to NCP without my permission but driver or keeper's identity wasn’t revealed in query), images of signage at material time (not all old signage had been replaced so anyone infrequent visitors would be unaware NCP new managers or ANPR newly installed), any updates/ case notes.

SAR in the end provided:
- images of car entering and leaving with time codes;
- NtK sent to wrong address (so not received by keeper at time and past 14 days - but has it still been served even if to wrong address?);
- Keeper liability notice again to wrong address (so not received by keeper at time);
- letter from occupant at old address stating desist from sending NCP letters to wrong address, giving new address and requesting old address data erased;
- NCP reply to old address, addressed to me (presuming I was still at old address(?) and had sent previous letter about incorrect address) saying that was address they got from DVLA database;
- email from NCP employee ‘xxx’ to DPO, subject line just PCN number, only saying "could you please withdraw..." (whatever that means - presumably to do with updating address and sending out new notice??) and DPO's reply, "All closed for you" (???);
- PCN to Driver sent to new address, presuming me to be the driver (even though driver never been nominated), saying NtK had already been served.
- copy of my appeal letter as keeper - disputing any driver nomination and that as never received NtK, it hadn’t been served, so demanding POPLA code;
- just one date of imported keeper details from DVLA;
- my SAR letter.

But no images of signage either contemporary or from material time, and no email exchanges between operator and retail centre, so driver/keeper wasn’t identified(?). They inferred they had checked DVLA for keeper details more than once but only one date given in SAR.

In replying to my initial appeal (as keeper in response to their belated/incorrect PCN to Driver) they gave their standard response and provided no evidence. So not surprisingly, despite my request, they did not provide documentation showing any alleged driver nomination, no explanation of PCN offence, no images/evidence to prove period car actually parked for, no images of signage either contemporaneous or from time in question, no record of payments, no mention of grace periods or policy with landowner (to cancel charge for genuine customers/first time offenders).

Have read through arguments and POPLA templates on MSE and presume can try most of usual arguments such as:

1) No keeper liability- PoFA non-compliant NTK due to failure to adhere to strict wording and guidelines set out in PoFA – no mention of PoFA at all in NTK and not received within 14 days (sent to wrong address).
Not sure if can use this one strongly as they sent NtK and Keeper Liability Notice to previous address so didn’t receive in time - but hasn't NtK still technically been served, even if to wrong address? Also not sure if wording on these notices are PoFA compliant? Can upload notices to check wording. Plus is PCN to Driver too late and invalid as sent 68 or 69 days after incident and to keeper, assuming keeper is driver without the driver ever being nominated?

2) 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.
Well wrongly sent ‘PCN to driver’ to keeper and provided no evidence of driver being nominated.

3) Grace Period: BPA Code of Practice–non-compliance.
Not sure can use this as according to time codes, driver overstayed by 31 minutes so more than 2 x 10mins grace. Although they paid by phone for 1 hour and phoned to pay for another hour with 10 mins to go, (there’s phone evidence), but not sure both payments registered as NCP hasn’t provided payment records even though requested.

4. There are no easily visible entrance signs for the regular entry and 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 are online complaints about the inconsistent and slow change over of signage since NCP took over, with misleading signage still present from old contractor at time of incident. The driver was used to old system, and being infrequent visitor didn’t realise NCP had taken over or that ANPR had been installed as only saw old signage at machine near where parked and didn’t not notice any yellow NCP signage at entrance. Obviously don’t have photos of old signs as driver unaware car would be ANPRed. NCP has not provided evidence of signage from material time, so no certain proof that non-misleading signage had been universally installed from outset. Have images of current NCP signage at parking spot - £100 charge not clearly legible - and driver can see this does not match old signage/machine still in place at time of incident.

5. No evidence of period parked – NTK does not meet PoFA 2012 requirements.

6. No evidence of land owner authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

7. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

8. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance.

9) The ANPR System is neither reliable nor accurate.

10) The signs fail to transparently warn drivers of what the ANPR Data will be used for.

11) No planning permission (probably - need to check) from council for pole-mounted ANPR cameras and no advertising consent for signage.

Will that be enough or any I've missed? Possibly no contract entered as driver only saw old signage and presumed old operator (i.e. not NCP)?

Pix taken (will try to upload again) a few weeks after time of incident but these show different signs/machine to what was in place when driver parked at same spot on top floor, less used by drivers in general (old signage was blue/grey and had paybyphone facility used by driver to pay, but isn’t available here on this updated machine or even advertised). Carpark has been undergoing various changes over a year or more during which changes have been introduced gradually so some of the old machines were still in place. Looks like when I went to check signs, that a temporary page was inserted in machine to cover up old system’s instructions before eventually new permanent sign is provided(?). Will check if machine has been updated again since. Even at this temporary stage, system didn't provide paybyphone available before - so shows signage was different. Surely hard for NCP to prove signage consistently the same over this period of changeover and that some old ones weren't still there? The driver didn’t see any clear notice about ANPR while there. Even in pix of signs updated after incident, they either don’t mention £100 charge or it's too small to see. The signs at entrance now, driver didn’t see/wasn't aware of at time when parking - would've have been hard to miss new yellow signs if they were there.
Will try to upload pix.

Fruitcake

OK, there is a lot of info there for us to take in.

A few comments to start with.

1) NTK needs to reach the serviceable address of keeper by day 14 where ANPR is used. This is the address the DVLA have on file.
In your case it doesn't matter if the keeper has moved. If it didn't reach the address the DVLA have on file by day 14 (the date of the alleged event being day zero) where ANPR is used, it is too late to meet the very strict requirements of the POFA 2012, so liability cannot be transferred to The Keeper.

2) Where the identity of the driver has never been given it cannot be assumed to be anyone else.

3) Not applicable

4) Far too short. Use the long Inadequate signage point from post 3 of the NEWBIES. If you have images of old signs that help you and hinder them, then use them. Signs with different wording, different meaning, damaged, hidden, tiny unreadable font etcetera all need to be shown. Embed all images into your pdf appeal rather than links or an appendix. That way the assessor has to look at them.




To post images, upload them to a web hosting site such as tinypic, postimage, dropbox etcetera then paste the URL here but change http to hxxp. Someone will change it back to a live link.

Redact personal information, don't use a ral name for the host site account, don't have any personal images in the same account. Believe me, it has happened.

Coupon-mad

NTK needs to reach the serviceable address of keeper by day 14 where ANPR is used. This is the address the DVLA have on file.
In your case it doesn't matter if the keeper has moved. If it didn't reach the address the DVLA have on file by day 14 (the date of the alleged event being day zero) where ANPR is used, it is too late to meet the very strict requirements of the POFA 2012, so liability cannot be transferred to The Keeper.

That's your first POPLA appeal point, ''no keeper liability'' and why.

Show us your draft. Like all other POPLA appeals you care to read, it will be LONG!

ohhdeeear

Thanks for replies.
We don't have pix of old signs at time of incident - driver didn't know there was new operator, new ANPR system or that a PCN would be posted so no idea needed to take pix. But here are pix of signage taken a couple of weeks after incident on the top floor at same machine spot driver used. They're not the same signs the driver saw, who saw ones used during previous system (blue/grey and with pay by phone info available - which isn't an option on newer signs seen here).
[IMG]hxxp://i65.tinypic.com/2guccau.jpg[/IMG]
[IMG]hxxp://i65.tinypic.com/qsthg2.jpg[/IMG]
This is one at entrance currently which would be difficult to read on way in or spot info if any on £100 charge or ANPR - not seen by driver few weeks earlier when unaware NCP had taken over
[IMG]hxxp://i65.tinypic.com/2hyxcm8.jpg[/IMG]
This is one taken by another driver recently, but not one I or the driver concerned have seen and somewhere else on another floor /area the driver did not use.
[IMG]hxxp://i68.tinypic.com/2mx4dc9.jpg[/IMG]

Fruitcake - understood about point 4 -after the point "There are no easily visible entrance signs for the regular entry ......insufficient notice of the sum of the parking charge itself.." it's meant to be my musings or notes in blue.

Coupon Mad, I'm not sure I can use no.1 as no keeper liability as DVLA still had my old address as registered address before new one was updated, so if served means posting to address DVLA had at the time of look up.

Will draft all the main points and post up tomorrow (have to submit by Tuesday although presumably have a couple of extra days if as has been said on this site that it's 31 or 32 days for code, not 28 days as operator states in rejection letter).

Is it worth posting the NtK etc to check for not complying with PoFA 2012 or whatever?
Thanks

Coupon-mad

Will draft all the main points and post up tomorrow (have to submit by Tuesday although presumably have a couple of extra days if as has been said on this site that it's 31 or 32 days for code, not 28 days as operator states in rejection letter).

It will work until day 32 up until midnight at least.

Le_Kirk

Your links (checked) and made live: -
http://i65.tinypic.com/2guccau.jpg
http://i65.tinypic.com/qsthg2.jpg
http://i65.tinypic.com/2hyxcm8.jpg
http://i68.tinypic.com/2mx4dc9.jpg

ohhdeeear

Thanks for making signage pix live.

I'm adding pix of notices -
NtK sent to old address (only seen from SAR)
[IMG]hxxp://i65.tinypic.com/53l8cg.jpg[/IMG]
[IMG]hxxp://i67.tinypic.com/2por0br.jpg[/IMG]

Keeper Liability Notice sent to old address (only seen due to SAR)
[IMG]hxxp://i65.tinypic.com/17pr28.jpg[/IMG]
[IMG]hxxp://i63.tinypic.com/5y9gno.jpg[/IMG]

PCN to Driver - sent to correct address after being informed by occupant at old address
[IMG]hxxp://i67.tinypic.com/5ff18l.jpg[/IMG]
[IMG]hxxp://i65.tinypic.com/2a75thd.jpg[/IMG]

Thanks

ohhdeeear

I’m uploading my POPLA appeal below - unfortunately I didn’t have enough time to finish and upload yesterday, so hopefully someone on the forum has some spare time to have a quick look through today (as I have to submit by end of today) to see if I’ve included the main points and in right order of priority.

Points I wanted to check mainly:
a)Should I try the POFA non compliance point and put it first? - mainly due to strict wording required on NTK which NCP failed, but also trying the argument that NTK not served in time due to sent to old service address which was being updated after a move (shakier argument but perhaps worth a try).

b)Should I prioritise Breach of contract due to poor signage + inadequate signage + land owner authority above POFA non compliance?

c)Also should I even bother with Genuine Customer point with it being NCP? It’s usually something worth doing with retailers like Tesco. Driver has card records showing several transactions.

d)Also does ‘Beavis not applicable to paid-for parking’ apply in this case?
As pointed out somewhere - the ParkingEye Vs Beavis case has meant that parking companies can charge amounts that do not represent loss, and instead are penalties. However, the Beavis case was based on the facts of that particular case – an overstay in a free car park.In the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £1); anything above that is clearly a penalty. So in a POPLA appeal would it be worth using this to differentiate the case from Beavis?

Also the judges in the Beavis case upheld the decision for ParkingEye based on a certain set of circumstances. A good example is where the signs in the Beavis case clearly and boldly stated there would be a charge of £85 payable for breach. The judges used this in their logic to uphold the case for ParkingEye – i.e. the charge was highlighted and therefore the motorist should know the consequence for overstaying. So, if in your case the signage does not state the charge in large letters, then the same logic cannot apply.

Another aspect of the Beavis case that can be used is that the judges ruled the charges to be legitimate to control parking, when they would otherwise be penalties. As such, if in another case the parking operator does not have a legitimate interest in controlling parking, the charge would be an unenforcable penalty - one example of charges being arguably therefore penalties is underpaying in a car park where by paying the vehicle is fully entitled to be there.

e)Presumably don’t bother with Grace Periods argument as overstay was 31 minutes, even though driver can prove according to phone records that parking paid by phone after entry time, and also phoned pay by parking a second time when parking about to expire - making two attempts to phone - but NCP, despite request in first appeal, failed to provide payment records to confirm whether second payment for 2nd hour accepted by system or not.

Thanks.

Coupon-mad

Yes to all of the above! And yes, don't bother with Grace periods as a point.