How Do NTK Timings Work?

Moor

First off I apologise if this is obvious to everybody else, but I've read, searched and reread and still don't get how the timings work for appealing on NTK point. Please don't flame me too harshly!

So my timeline is:
Day 1 - PCN left on windscreen
Day 28 - Appealed to parking operator (APCOA in this case) using "Template appeal for BPA or IPC members"; meant to do it on day 25/26, but slipped my mind!
Day 30 - Received rejection of appeal with POPLA reference and 28 days to appeal to POPLA

That gives me to day 58 to appeal. As I understand it NTK is still within time limit up to 56 days after windscreen PCN issued. So unless I leave it to day 58, which I don't want to do as I'll be out of the country, then there is still time for them to issue NTK isn't there?

I'm sure I'm missing something but not sure what. Enlightenment would be great.

Many thanks.

Fruitcake

NTK timing only applies where the scammers are using the PoFA to transfer liability to the keeper.

Date of event is day zero so you appealed on day 27.
Where ANPR scameras are used, the NTK must arrive by day 14 for keeper to be liable.
Where an NTD was issued, the NTK must arrive between days 28 and 56 for keeper liability to apply.

PoPLA codes last 32 days. Appeal online if you have internet access after the post has arrived at your home on day 56 if possible, or a couple of days before otherwise, but sill use no NTK as an appeal point. They can't get one out to you in time if the PoPLA appeal reminds them they have forgot.

If this was at a railway station then byelaws apply so the keeper is not liable anyway and it won't matter whether a NTK arrived on time or not.

KeithP

You seem to understand that very well.

Although it says twenty-eight days, you actually you have over thirty days to appeal to PoPLA - starting from the date of the letter supplying the PopLA code.

Of course if you are unable to leave it that late for whatever reason, you will have to compromise.

Can you not prepare your PoPLA appeal before leaving the country and just leave the sending of the PoPLA appeal email until day 30?

Moor

Thank you both for confirming. I thought that was leaving it a bit close to the wire, but guess that's what we have to do. I've got the appeal all ready to go, so will set alarms on every device I have to remind me to send at that time.

Many thanks for the quick responses.

Fruitcake

Post your draft here for checking first if you want, plus a bit of background would help the regulars better understand your case.

Moor

Thank you Fruitcake, a check over and any feedback would be greatly appreciated.

The background is the car was parked at Exeter St Davids. It wasn't parked in the marked bays but rather in an unmarked area where, along with other cars, there is a bit of extra space when the car park is otherwise full. Parking in this area doesn't cause an obstruction to other users. The terms and conditions, and they really are in a tiny font which you have to seek out, state that parking outside marked bays is in contravention of the terms and conditions. It's this that they gave a PCN for.

The signs say APCOA Parking, with GWR Great Western Railway as a sub heading, so I presume railway byelaws apply, but I'm not clear on the point.

Appeal to APCOA was rejected as expected and now I'm in the waiting period to see if an NTK arrives before submitting appeal to POPLA.

Appeal as follows. Happy to add general photos referenced in appeal if that would be helpful...

As the registered keeper, this is an appeal against the Parking Charge Notice issued by APCOA for an alleged breach of the company's terms and condition in the Exeter St Davids Wards Yard Station Car Park, on the xxxx.

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

Summary of appeal:
1. Railway Land Is Not Relevant Land
2. A compliant Notice to Keeper was never served - no Keeper Liability can apply
3. Appellant not being the individual liable
4. Non-compliant signage
5. Lack of standing / authority from landowner
6. No parking areas ambiguously marked

1) Railway land is not Relevant Land

It is assumed that the location at which the PCN was served is railway land. APCOA should prove that this is not railway land, for which byelaws apply, and is rather relevant land.

Assuming this is Railway Land, then 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 reiterate that APCOA should provide strict proof 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 APCOA 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.

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

The PCN states that APCOA may apply to the DVLA for keeper details, thus implying APCOA adheres to PoFA keeper liability. However, even if the land in question was considered relevant land, the parking charge notice does not comply with the strict requirements of Schedule 4 of PoFA 2012 to be followed in order for a parking operator to be able to claim unpaid parking charges from a vehicle’s keeper.

As a result, APCOA 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. This operator served an NTK dated xxxx, xx days outside of this time limit, ignoring 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.

3) Appellant not being the individual liable

APCOA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). 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.

Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.

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 APCOA 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 APCOA, 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.
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:

Understanding keeper liability.
There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator 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."

4) Non-compliant signage

The signs are not clear or legible on entering this car park, and are not visible at all from where the car was parked, or indeed from parking spots in the majority of the car park. As a result it is not at all clear that the terms and conditions are being broken, and there is insufficient notice of the sum of the parking charge itself.

Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice, I am of the view that the signage at the site fails to meet these standards on a number of ground:

- BPA CoP 18.1 … will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

It can be seen in photograph 1 that the terms and conditions, and parking charge notice, are placed behind the payment machines, and are in a very small font below a much more prominent sign. In photograph 2 it can be seen even when crouching down close to the sign it can be hard to read this information.

- BPA CoP 18.2 … The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use…

Appendix B then states that the Group 1 lettering should be at least 50mm (at the lowest approach speed) and Group 2 lettering at least 50% of the Group1 size. On both counts I contest this is not met.

Further it states that the sign should be placed so that is readable by drivers without their needing to look away from the road ahead, The operator has not met this requirement as a result of the signs position and the font sizes.

Photograph 3 provides supporting evidence that the sign is not readable by drivers entering and that the driver is not made aware from this sign of the terms and conditions or the punitive charge for breaking these.

- BPA CoP 18.3 … You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle …

As stated above the parking terms can not be found around the site but rather only at the payment meters and only by studying the signage closely at these points. The driver can not see these when parking or leaving their vehicle. The situation is further compounded by the use of “pay by phone offered by APCOA which means the driver does not have a need to go to the payment meters and this in turn reduces further the opportunity to notice this signage.

- BPA CoP 18.4 …adequately bringing the charges to the attention of drivers…

For reasons already stated (font size, placement, lack of signage) this requirement is also not met by the operator.

The minuscule font size of the £100 (see photograph 2), which is illegible in photograph 1, i.e. when viewed at a reasonably close distance to the sign, is NOT sufficient to bring the parking charge to the attention of the driver.

There was no contract or 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:

<<supreme court screenshot>>

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:

<<picture of Beavis signage>>

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 nearly hidden behind payment machines and in a tiny font. The sign which would lead the driver to understand that they are in breach of the terms and conditions is unremarkable, not immediately obvious as parking terms and the wording is mostly illegible. Very little opportunity is afforded to the driver to identify and understand the terms and conditions which must be read BEFORE the action of parking and leaving the car.

Similarly it is vital to observe, since 'adequate notice of the parking charge' is mandatory under the BPA Code of Practice. For the reasons detailed above (an unremarkable sign, placed in a difficult to view position, that can not be seen from the majority of parking spots, with a tiny font) it is clear this ,mandatory requirement is not met.

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.''

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

<<link to letter visibility>>

''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.''

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this location 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 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 APCOA’s case:

<<link to case>>

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.

5) Lack of standing / authority from landowner

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:
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

If the earlier assumption, which APCOA should prove to be otherwise, is that the land is railway land then I do not believe that APCOA’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a 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 APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the Train Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). On the basis APCOA 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 APCOA are entitled to pursue these charges in their own right.

I require APCOA 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 APCOA 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 APCOA to strict proof of compliance with all of the above requirements

7) No parking areas ambiguously marked

As you enter the car park there are areas with chevron marking identifying no parking areas, see photograph 3 (bottom right of image). These were not present in the location the vehicle concerned was parked and as no obstruction could be caused to the operation of the car park in this position, it is therefore a reasonable deduction that the space the vehicle was parked in would not have been a prohibited parking location.

Therefore it is respectfully requested that this parking charge request appeal be upheld.

Supporting Photographs

Photograph 1: Terms and Conditions signage
Photograph 2: Terms and Conditions signage close up
Photograph 3: Signage on entering car park, plus chevron area for no parking

Fruitcake

You have six headings but seven appeal points.

Point 1

Don't assume, state something like, the car park is a railway asset where railway byelaws apply. Let them prove otherwise.

Ask GWR/Network Rail/the stationmaster to confirm if you wish.

Point 2

"This operator served an NTK dated xxxx, xx days outside of this time limit …"

Alternatively if you haven't received a NTK at all, No NTK has been received within the required PoFA timescales, or similar.

Point 4

Just in case CRAPCOA say the keeper must have been the driver because they know where the car was parked relative to the position of the signs, add something like: -

As an occupant of the car, or the keeper has been informed by the driver, or the keeper visited the site on a subsequent occasion.

Pick whichever one is true and suits the situation best.

Moor

Thank you Fruitcake, I'll update accordingly. Really do appreciate you giving your time to reviewing this. On point 4, CRAPCOA provided photos of where the car was in their online evidence portal. So I'll word along those lines I think.

Moor

Never did get a NTK. Anyhow just received this...

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

Thank you again Fruitcake for your guidance and support on this.