Pcn - ncp

Coupon-mad

And send that suggested reply to NCP, just not using that return email.

greenbluegreen

Happy new year all!

No reply from NCP or the Landlord unfortunately. I am reading the newbie thread again and will be posting a draft POPLA appeal shortly.

Am I correct that postal Notice to Keeper must be sent within 14 days?

Date of incident in my case was 03/11 , Date of Sending this notice: 25/11

Thanks!

greenbluegreen

Ok here is my draft POPLA appeal. Not finished, but still can't find what to write about them misleading me. I would really appreaciate some pointers. Been searching the forum in the last hour, but when comes to phone app payments, other people here posting about wrong number plate entered or simillar. My case is rather different. The more I read, the more I realise that I've shot myself in the foot by admitting being the driver. I'd really like to include one more point here as my appeal looks weak to be honest.

---

POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX

I, the registered keeper of this vehicle, received a letter dated 25/11/2019 acting as a notice to the registered keeper. My appeal to the Operator – NCP – was submitted and acknowledged by the Operator on 02/12/2019 and rejected via an email dated 13/12/2019. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:


1. Notice to Keeper not served in accordance with Schedule 4 of POFA 2012
2. 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
3. No evidence of Landowner Authority
4. No evidence of period parked
5. The ANRP system is neither reliable nor accurate i.e. does not show vehicle in a parking space
6. The signs fail to transparently warn drivers of what the ANPR data will be used for
7. Cost of charge is not a realistic value of any losses that NCP may have occurred.


1) Notice to Keeper not served in accordance with Schedule 4 of POFA 2012

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 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) - (b) (b)has given a notice to keeper in accordance with paragraph 9.

Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

Additionally, DVLA state in their Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges
6.2 “Where a contravention is detected remotely (such as by cameras), the landholder may request registered keeper data from the DVLA immediately and must write to the registered keeper within 14 days seeking details of the driver or payment of the parking charge.”

NCP’s “Notice to Keeper” states clearly that Date of Event = 03/11/2019 and that Date of Issue = 25/11/2019 and received by me on 27/11/2019.

Schedule 4 Protection of Freedoms Act (POFA) 2012 section 9 states:

(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.


This represents a breach of the above noted statement, as it is clearly at least 20 days. The notice was not received by me, the Registered Keeper, until 27/11/2019, a total of 24 days.
On these grounds alone, this Parking Charge Notice should be rejected.

Please see attached scan of PCN.

2)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:

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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.''

''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:

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 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.

3) 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


4) No evidence of period parked – the photos provided in the NPC does not show the vehicle as parked within a parking space nor does it show the signage. Hence non compliance with BPA Code of Practice. Photographic evidence of the vehicle parked within a parking space for the stated time of 1 hour 33 minutes must be provided including location, time stamps, photographic evidence of clear signage must also be provided.


5) ANPR system is not reliable, as per the above point (4) , evidence allegedly provided by the onsite ANPR system failed to show vehicle parked in a parking space for the duration claimed period.
Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice.

I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

6) Signage fails to alert drivers of what the ANPR data will be used for. This would be in breach of the Data Protection Act “GDPR” 2018.

7) The charge of £100 does not represent a genuine pre-estimate of loss, the car park was not full. Please could NCP provide evidence that £100 is adequate.


Conclusion:

That completes my case for appeal. I respectfully request that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

I would also like to formally request to see all evidence presented by NC Pregarding 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.''



Yours Faithfully,

---

Can you also advise me on which of the options should I go for? (see POPLA options in the image of the below link)

https://imgur.com/a/elwOtLT

JTOO

Hi, I wonder if you can advise. I also received a notice today. I was at Pets at Home in Ashby de la Zouch buying dog food. I then walked over to the Aldi across the road. After 15 minutes I returned to find the notice which mentioned 'leaving the site'. I looked at the signage and it did have a small clause at the bottom saying you 'may' be charged if you leave the site!

I went into the store and they handed me a card with the appeal process, so they are obviously used to this! Later, after I had left, my wife went into Wickes on the same estate and mentioned it to the manager. He took my details and said that he was meeting with the landlord about this issue tomorrow and that he would raise my case.

Do I need to do anything else? i have read the Newbies FAQ post but most of that relates to how to appeal and it is too early for that.

greenbluegreen

JTOO wrote: »

Hi, I wonder if you can advise. I also received a notice today. I was at Pets at Home in Ashby de la Zouch buying dog food. I then walked over to the Aldi across the road. After 15 minutes I returned to find the notice which mentioned 'leaving the site'. I looked at the signage and it did have a small clause at the bottom saying you 'may' be charged if you leave the site!

I went into the store and they handed me a card with the appeal process, so they are obviously used to this! Later, after I had left, my wife went into Wickes on the same estate and mentioned it to the manager. He took my details and said that he was meeting with the landlord about this issue tomorrow and that he would raise my case.

Do I need to do anything else? i have read the Newbies FAQ post but most of that relates to how to appeal and it is too early for that.

As much as I like to give you a good advise, the only thing I can suggest is to open a new thread (your own one) and post as much information as possible. It's very odd that you have received a notice 'on site', that quickly.

But for better visibility and for others to be able to assist better, I think it's best to open a new thread.

Sorry I couldn't be in more help, but you'll quickly find that there is plenty of educated people here that are willing to help. Stay positive and re-read the forum here and use the search function for best results

Have a great evening!

Coupon-mad

greenbluegreen wrote: »

Am I correct that postal Notice to Keeper must be sent within 14 days?

Date of incident in my case was 03/11 , Date of Sending this notice: 25/11

Not with a case with an admitted driver. It would have been the 100% slam dunk winning point at POPLA, had you not done this:

The more I read, the more I realise that I've shot myself in the foot by admitting being the driver.

Unless you maybe didn't tick 'driver' and/or make it obvious in the appeal, then you CANNOT use point #1 of your draft POPLA appeal, at all.

Get rid of #7, where on earth did that come from? LOSS?? Nonono.

greenbluegreen

Coupon-mad wrote: »

Not with a case with an admitted driver. It would have been the 100% slam dunk winning point at POPLA, had you not done this:Unless you maybe didn't tick 'driver' and/or make it obvious in the appeal, then you CANNOT use point #1 of your draft POPLA appeal, at all.

Get rid of #7, where on earth did that come from? LOSS?? Nonono.

Thanks for this, I've removed the unnecessary paragraphs, sent the next day after your comment.

I've now got the evidence pack and 6 days to comment on it. Will have a good look at previous posts , newbies etc to see what should I put.

Can anyone tell me where I can upload the .pdf that has got sent to me? I'll of course remove all personal information before doing so.

Had a quick glance already and most of the photos are either taken at a really short distance or they're taken too far and they're no visible at all. There is a mention of a point in their T&C not allowed to pay on the app if I've left site :mad:, when I get back home, I'll quote the exact thing.

Thanks,

Coupon-mad

We don't want to see POPLA PDFs at all, they are waffly templates and we have no time to read them.

Just tell us what you have spotted that you want to comment on!

greenbluegreen

The amount being claimed is justified given the running costs of managing our parking operation and is also in line with industry standards. To conclude the PCN has been issued correctly for a clear breach of the displayed conditions and NCP have submitted sufficient evidence to support the enforcement of the notice. POPLA state decisions will be based on the finding of fact: the facts are the appellant parked in clear breach of our displayed Terms and Conditions and NCP trust POPLA will find no reasonable grounds to allow this appeal. (they copy + paste this one twice )

The size and font on all signage is British Parking Association approved and also has signs advisingmotorists the car park is monitored via Automatic Number Plate Recognition cameras on entry to and exit from the car park.

Clause 5 - Paragraph 5d: “you pay all amounts due for your parking and comply with the
requirements set out at clause 10 (Ticket Types and Payment Methods) of these Terms.
For the avoidance of doubt, if you choose to pay the parking tariff by using the “Pay By
Mobile” service, the payment must be made at the time of parking your vehicle in the Car
Park and in any event, before you leave your vehicle in the Car Park.” - So Pay By Mobile can only be done before I leave the vehicle in the Car Park? Not what I've been told over the phone!

Clause 10 – Paragraph 10a: “you must purchase a parking ticket from the ticket machines at
the Car Park either with cash or a credit/debit card, before leaving your vehicle and
ensure that the parking ticket is clearly displayed in the windscreen of your vehicle".

Rest of it is photos taken really close (not how you see the signs in the car), one of the sign is placed sideways as you drive down the tunnel, no way it can be seen unless I crash the car for not looking in front of me.

I'll try to find something to adapt to my case, but any ideas will be really appreciated!

Thanks guys!

Coupon-mad

You only had SIX DAYS to make comments then the window closes.

Did they prove this?

No evidence of Landowner Authority