NCP - PCN for overstay in Pay & Display using ANPR

sakhtolo

Hi, I'm hoping you guys will be able to help advise me. I received a Parking Charge Notice to Keeper on 19/10/2019 for a parking incident on 15/09/2019. The reason NCP provided is:

"Parking longer than the time paid for and liability for the same having been brought to the attention of the driver by clear signage in and around the site (Birmingham St Judes) at the time of parking. The breach is relating to the period of parking was recorded by an approved ANPR camera."

I challenged this on 23/10/2019 through their website by responding that I did pay for parking on that day and provided evidence of my credit card statement.

On 05/11/2019 I received a response by email:

"Issue date: 17/10/2019
Thank you for your appeal received on 23/10/2019 regarding the above detailed Parking Charge Notice, we have reviewed your case and considered the comments you have made. Your appeal has also been considered in conjunction with the evidence gathered by our Automatic Number Plate Recognition cameras, which record your entry and exit times. Our records show the notice was correctly issued as your vehicle was parked in breach of the Terms and Conditions of Parking. We can confirm that the payment you made of £8.00 covered your parking period for 3 hours. Your parking session was for a total of 3 hours and 15 minutes."

NCP have provided photographic evidence showing my car entering the car park at 17:18 and departing at 20:34.

My issue is that this is a pay and display car park. I had to wait between 5-10 minutes in a queue at the payment machine to buy the ticket and when departing I took a phone call in my car before I drove out. I thought I would be ok because I am in the car if a parking attendant comes to ticket me then I will leave. The car park operates like a pay and display but then they use ANPR to calculate how long you have been on the property for. Is this allowed?

My options now are to pay £60 within 14 days or £100 by 03/12/2019. Or to appeal through POPLA, which is what I would like to do. But reading through the forum, when appealing through POPLA it seems that I need to ensure I am well prepared.

So any advice would be appreciated. Thanks in advance.

KeithP

That's right, you must be well prepared when appealing to PoPLA.

Start by reading post #3 of the NEWBIES thread where you will discover how to create a, hopefully winning, PoPLA appeal.

Do not miss you PoPLA appeal submission target date.

Coupon-mad

I received a Parking Charge Notice to Keeper on 19/10/2019 for a parking incident on 15/09/2019.

As that was fatally late for keeper liability (unless there was a windscreen PCN) are you saying that you binned the 100% winning position you had as registered keeper and you went and appealed as the driver and talked about the story of what happened and what you did?

If so, then being 'well prepared' now is a bit late, but can be won by a driver who has blabbed (I am always so sad when I type that; like so many others you rushed to appeal before researching this scam - and you killed your winning position...).

As I say it can be won but you are now reduced to the BPA grace periods and the words I wrote in the NCP 0 Taxman 1 thread, so go and find that by searching (no link given to newbies, it doesn't help you prepare).

So use the wording I wrote in that thread for people to use in POPLA appeals, to the various template POPLA appeal points (plural) wording in post #3 of the NEWBIES thread - but unfortunately, due to a weak first appeal, you can't use 'no keeper liability...'

Redx

2 grace periods applied

one before parking and paying , the parking time started when the payment was made , but say 5 to 10 minutes

the second grace period is ten minutes or more to leave the car park

do not use the total time , split it into before and after

see clause #13 of the BPA CoP regarding grace periods

include no landowner authority , poor signage , POFA if they failed it etc too , although it looks like you blabbed about being the driver, dont do it in future, it was a slam dunk win for a keeper due to tardiness by the PPC

sakhtolo

Thank for the advice guys. I have read the various threads and drafted an appeal to POPLA. I would appreciate any advice before I submit.

sakhtolo

I, the registered keeper of this vehicle, received a letter dated 17/10/2019 acting as a notice to the registered keeper. My appeal to the Operator – NCP – was submitted and acknowledged by the Operator on 23/10/2019 and rejected via an email dated 05/11/2019. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the grounds of:
1. non-compliance of grace periods
2. the operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

1. Grace Period: BPA Code of Practice – non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
• BPA’s Code of Practice (13.1) states that: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
• BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
• BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
• BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. It is there reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
On 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':
“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”
The recommendation reads:
“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”
(Source:[britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf)
Therefore, it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice. If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, find a parking spot, park the car, pay for the parking at the pay machine and then return to the car to insert the ticket behind the windscreen.
Also:
a) The lack of sufficient signage throughout the car park in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
b) The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.
e) The lengthiness of NCP’s signage (in terms of word count) with a significant amount of text included in a “Terms and Conditions” section in tiny text at the bottom of the sign.
All factors discussed above serve merely to increase the time taken to:
• Locate a sign containing the terms and conditions
• Read the full terms and conditions
• Decipher the confusing information being presented (ANPR recording but then it is a Pay and Display car park)
• Find a parking spot
• Wait in a queue to pay for parking in the machine
• Return to car and display ticket.
• After parking, locate car in the dark and leave the car park
It is therefore argued that the duration of unpaid parking (NCP claim the parking session was 3 hours and 15 minutes according to ANPR against the actual paid parking period of 3 hours, leaving a difference of 15 minutes), is not a reasonable grace period given that BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start, which combine to 20 minutes in total.

2. The operator 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. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper throughout (as I am entitled to be), 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.
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 an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 the Operator 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 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 cannot transfer the liability for the charge using the POFA.
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.''

Coupon-mad

No, that is nothing like the stuff I told you to use:

As I say it can be won but you are now reduced to the BPA grace periods and the words I wrote in the NCP 0 Taxman 1 thread, so go and find that by searching (no link given to newbies, it doesn't help you prepare).

So use the wording I wrote in that thread for people to use in POPLA appeals, and add it to the various template POPLA appeal points (plural) wording in post #3 of the NEWBIES thread - but unfortunately, due to a weak first appeal, you can't use 'no keeper liability...'

You have blabbed about who was driving so you can't use point #2.

Point #1 is NOT based upon the NCP 0 taxman 1 thread so you appear not to have searched for that?

Your version doesn't include the Court of Appeal case anywhere and nothing about the contract starting when the person hits the green button...search the forum for POPLA green button PDT machine

And where are the usual templates about signage and no landowner authority from the NEWBIES thread?