PCN received over 2 months after incident

Redx

jost said:

Le_Kirk said:

Follow THIS link to find a thread about a Golden Ticket (bear in mind that phrase is a forum phrase not a legal/POPLA phrase) and it will take you to page 4 of that thread.  Follow THIS link to take you to the first page of the thread.  The thread was found by using the forum search (advanced search) facility and putting "golden ticket" in search forum box.

Thanks, I had read about this and was not sure if it did apply to me. I now think it does. My  draft letter has been posted for any further advice.

It applies to a keeper who was not the driver , even if POFA isn't in use due to network rail owning the land , or if it is relevant land but the PPC failed POFA , which they have in this case no matter who owns the land

The task in your popla appeal above is to proceed as a keeper who was not the driver , regardless if any errors on your part , because a keeper is not liable

Popla is closed anyway so it will be months before any ruling , but do not miss your filing deadline

jost

Redx said:

jost said:

Le_Kirk said:

Follow THIS link to find a thread about a Golden Ticket (bear in mind that phrase is a forum phrase not a legal/POPLA phrase) and it will take you to page 4 of that thread.  Follow THIS link to take you to the first page of the thread.  The thread was found by using the forum search (advanced search) facility and putting "golden ticket" in search forum box.

Thanks, I had read about this and was not sure if it did apply to me. I now think it does. My  draft letter has been posted for any further advice.

It applies to a keeper who was not the driver , even if POFA isn't in use due to network rail owning the land , or if it is relevant land but the PPC failed POFA , which they have in this case no matter who owns the land

The task in your popla appeal above is to proceed as a keeper who was not the driver , regardless if any errors on your part , because a keeper is not liable

Popla is closed anyway so it will be months before any ruling , but do not miss your filing deadline

Do I need to reword any of the sections? I threw everything at it I could find.

jost

Umkomaas said:

Notwithstanding what Coupon-mad said about trying a 'Not PoFA compliant' appeal point, a 'Golden Ticket' is only of any help where the driver has not been identified, it is not a universal 'get out of jail' card. 

To plead it, you're going to have to somehow unravel your 'admission' to driving the vehicle, even though you can prove you were actually on the train.

I have said why. What else can I add ?

jost

Coupon-mad said:

Show us your latest draft POPLA appeal please.

If I were you I'd copy an APCOA Railway POPLA appeal from any APCOA Railway thread in the past year.  Change APCOA to NCP and you will be there, because those POPLA Appeals always include the 'not relevant land' and 'non-POFA/late NTK/no keeper liability' wording and you can copy it.

HOWEVER, because you wrongly identified yourself as the driver you need to write an intro to your appeal that explains to POPLA why you did that (to protect the driver, you thought it would be easier) and prove that in fact you were not the driver and embed an image of that proof, as you have already been advised.

DO NOT HIDE THAT BIT IN THE APPEAL.  YOU NEED IT IN THE INTRO, TO EXPLAIN WHAT YOU SAID IN THE FIRST APPEAL SO IT IS THE FIRST THING POPLA'S ASSESSOR READS, AND THUS THEY CAN'T MISUNDERSTAND AND ASSUME YOU ADMITTED TO DRIVING, THEREFORE YOU LOSE!

Hi Coupon-mad,
Would appreciate your feedback on my latest draft posted other day.
Thanks !

Fruitcake

Your heading 1) does not match point 1 in bold, which in turn is not numbered.

Coupon-mad

NCP are attempting to claim the charge is liable to them 

That doesn't make sense.  Maybe 'payable' but not 'liable'.

I would add a line at the end of EVERY point about no keeper liability (I haven't clicked back, and only skim-read it but is that the first five points?):

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car).  I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.  

jost

I shall amend my letter and upload the final version here later as hope to email it to POPLA tonight. 14 days runs out tomorrow, though 28 deadline to appeal. Thanks for all your help.

Fruitcake

PoPLA codes last about 32 days so don't rush things, but don't miss the appeal deadline.

jost

Thank you, I have taken on board all your comments. Letter is now in two section as over the letter count. Sections 1-4 and 5-9. Hopefully. Is this  better? Anything else I need to change?
There are 9 headings in the letter Coupon-mad.
Many thanks!

Dear Sirs

POPLA Ref ...................

NCP Parking PCN no

A notice to keeper was issued on 27th March 2020 and received by me as the registered keeper of XXXXXX on 1st April 2020 for an alleged contravention of NCP car park “terms and conditions: No Payment” at Diss Railway Station Car Park. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

The NTK letter is dated 27th March, for an incident that took place on the 28th Jan. I understand a PCN should be received within 14 days, not 64 days. This is over 2 months after the date the incident occurred.

From their rejection of my initial appeal, it appears that NCP are attempting to claim the charge is payable to them under contract terms and conditions of use.

I reject this as I was not the driver. In my initial response/appeal I did reply that I was the driver picking up a family friend who was on a delayed train. This was an error on my part as I was the one being picked up. I have an email confirmation of my train ticket booking to prove I was on the train and was not the driver. I also have pictures taken in London on the day should they need to be supplied.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

Protection or Freedoms ACT 2012 and notable paras not complied with:

Para 4.2a - not met as paras 6 and 11 are not met

Para 6.1a – not met, no notice to driver given in accordance with para 8

Para 6.1b – not met, no notice to keeper given in accordance with para 9

Para 7 – not met, no notice to driver given

Para 8.2c – not met, notice to keeper does not state that a notice to driver was given

Para 8.4 /8.5 – not met, notice to keeper not delivered within the relevant time period, and no notice to driver given

Para 9.4b – not met, notice to keeper is not delivered within the relevant time period.

Para 9.5 – not met, the relevant period is 14 days. The notice was received on day 64.

Para 11.1b – the application for the keepers detailed 

1) Non-compliance with POFA requirements and timetable set out in Schedule 4 of POFA 2012
2) Failed to comply with Keeper Liability POFA Shedule 4 para 9
3) Failed to comply with BPA Code of Practice and POFA 11.1b, relevant time period

4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

5)The operator 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)

6) Misleading and unclear signage 

7) No landowner contract nor legal standing to form contracts or charge drivers

8) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods

9)ANPR Accuracy and Compliance!

1)Non-compliance with POFA requirements and timetable set out in Schedule 4 of POFA 2012

The PCN states that NCP may apply to the DVLA for keeper details, thus implying NCP 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, NCP 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.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

2) Failed to comply with Keeper Liability POFA Shedule 4 para 9

If NCP want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and they have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). BPA code of practice 26.1 also refers to this.

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 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. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

3) Failed to comply with BPA Code of Practice and POFA 11.1b, relevant time period

I have received no evidence that NCP have complied with either POFA 11.1b or BPA Code 21.7, 21.9 requirements for ANPR issued tickets to apply for keepers details within the relevant time period of 14 days, so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 28th January 2020 and the notice to keeper was received 64 days later on 1st April 2020. NCP have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

Railway land is not 'relevant land' as it is already covered by statuary bylaws 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 put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail Authority that this land is not already covered bylaws.
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.’

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

5) The operator 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)

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."

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

jost

Letter part 2 sections 5-9. Thanks

6) Misleading and unclear signage

Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver. 

The BPA Code of Practice clearly states that:

18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Baring this paragraph in mind, there was categorically no contract established between the driver and NCP. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was in the hours of darkess. Further investigation has shown that due to the darkness and the size of font it was therefore impossible to a read, let alone understand the terms and conditions being imposed.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

7) No landowner contract nor legal standing to form contracts or charge drivers

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give NCP Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, NCP Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require NCP Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that NCP Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles NCP Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to NCP Parking Ltd to prove otherwise so I require that NCP Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between NCP Parking Ltd and the owner/occupier, containing nothing that NCP Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

8) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods

The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “…a reasonable period without having their vehicle issued with a parking charge notice.” Subsections 13.2 and 13.4 offer further clarification stating that :

13.2 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.

13.4 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.The station parking allows a wait period of 20 minutes, not including grace periods. 

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

9) ANPR Accuracy and Compliance!

Considering that NCP is suggesting that the driver allegedly stayed 37 minutes (17 minutes above the free parking time, and not including grace periods) I call into question the ANPR system accuracy. The time of 17 minutes is so minuscule that it would require an ANPR system with almost perfect manufacturer-stated accuracy.

Therefore, I require the Operator to present records which prove:

• The Manufacturers' stated % reliability of the exact ANPR system used on this site

• 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, and by whom.

These documents are fundamentally important as the entirety of the charge is being founded on two images purporting to show my vehicle entering and exiting at specific times. Even with a firm understanding of probability laws, NCP expects me to believe that their system has a zero failure rate and zero buffering delay. Therefore, NCP must be expected to produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system previously ruled against. In the case of ParkingEye verses Fox-Jones on the 8th November 2013 the case was dismissed by the Judge, ruling that the equipment was “…fundamentally flawed...” on the basis that the synchronisation of the camera pictures and the time had been called into question. The Operator was unable to rebut the claim!

Considering this case, it is believed that a local camera captured the image via a remote sever and then added the time stamp. As the two separate components are disconnected by the internet and do not share a common ‘time synchronisation system’, there is no proof that the time stamp included on the images is an actual representation of the exact time the image was captured. Furthermore, as the Operator appears to use WiFi the ANPR system succumbs to a buffering delay when receiving information, suggesting that “live” data is not really live but a delayed response. Therefore, without a synchronised time stamp there is no evidence that the image is ever truely time stamped accurately. Therefore, I contend that any ANPR ‘evidence’ put forth by NCP is as unreliable.

I remind POPLA and the operator that I WAS NOT the driver and have uploaded proof that I was actually on the train (the person being picked up, not the person driving the car). I hereby formally revoke the line in my initial appeal where I wrongly thought it might be easier to appeal as if I was the driver, and only now realise due the the fact the PCN is non-POFA, that it is important that the operator and POPLA see my proof that I was not.

I therefore request that POPLA uphold my appeal and cancel this PCN.