PCN NTK for Station Parking - Late Notice/ POFA/ Rail Bylaws

Westie87

Hello all,

I am looking for some advice on the following from people that are far more knowledgeable than me on this topic.

Station/ TOC is Greater Anglia
Car Park Operator and PCN NTC issuer is NCP

7no. Parking Charge NTC's have all come through the post on the same day 6th January 2022 (Merry Christmas). The dates of the incidents/ alleged offences are 7 different dates ranging from 5th October 2021 to 21st October 2021.

No PCN or equivalent was put on the car windscreen. The station car park operates using an ANPR camera only so nothing gets put on windscreens.

From the research I have done so far - 

The only way for them to go after the driver would be if the keeper was to name/ identify the driver. This is obviously not going to happen.

This therefore means they are left solely with going after the keeper for these alleged offences. Under POFA rules they must send me the PCN NTC within 14 days. It's been circa 70-100 days from the date of incident to the date of Notice. I assume on this basis it is a slam dunk win for the keeper.

This being said, I am nervous that as it is a train station car park, that railway bylaws come into play and that actually POFA is therefore irrelevant as it is not 'relevant land.'

Details of the PCN -
The infraction is 'partial payment'
NCP describe themselves as a creditor
No mention of railway bylaws, it's just a straight up PCN like from any private company
No mention of POFA
They confirm keepers details obtained from DVLA

Whilst I cant find much information on it, from certain forum posts I have found there seems to be a 6 month time limit in which the station/ train operator can prosecute. Is this correct? In order for them to do such a thing they would need to prosecute the driver and since the keeper at no point has advised who this is then there is no way of them knowing who the driver is, so they couldn't prosecute even if they wanted to. Is this correct? NCP cannot pass on the information they have on the keeper to the train operator (due to data protection etc etc.) therefore the station would need to do all of their own digging to obtain the information that they need?

The concern is that this 'partial payment' may have taken place every time the car park has been used (3 times a week since mid August) which is a huge liability of fines/ invoices/ prosecution fees. Only these 7 Notices mentioned above however have been sent to date. There is potential for the full backlog of Notices for this time period to come through the door and the keeper will be damned if they are going to accept paying a fine in the thousands to these people.

I'm looking for as much advice on this as possible to help the appeal. Thank you very much in advance.

Regards,

Westie87

Redx

6 months is correct for a penalty notice , which you haven't received from the TOC

6 years is for a private parking charge notice like NCP invoices , which you have got from NCP

Appeal each one as keeper using the blue text template from the newbies FAQ sticky thread near the top of the forum in announcements , adding an Extra sentence that they have failed to comply with POFA so as keeper you have no liability under POFA , regardless of it being valid or not

No blabbing about who was driving

Just ensure that each PCN that arrives is appealed , no missing any , be it 5 or 500

This one is similar , with the same advice

https://forums.moneysavingexpert.com/discussion/6325774/challenging-postal-pcn-received-after-98-days-still-have-question-after-reading-newbies-thread#lates

Coupon-mad

No need to be nervous.

As it's not relevant land then there is no keeper liability.  If the NTKs arrived that late then there is no keeper liability.

Taken together, there is no keeper liability x 2 and these are easy peasy to win, one by one, on appeal.

Westie87

Thank you both for the replies.

So just to be clear. I appeal using the template (don’t accept the charge as there is no keeper liability and the keeper will not be naming the driver etc etc). NCP don’t have a leg to stand on. 

With regards to the train operating company. Do they have 6 months in which to start magistrate proceedings? 

I’m confident (now) with regards to NCP and dealing with the current NTKs but could they respond to my rejection by changing their strategy and sending a new notice which is a ‘penalty’ notice for breach of railway bylaws? What is the likelihood NCP/ TOC send a court letter going down the criminal law route of breaching bylaws? Would this be futile for them due to complications around driver/ keeper/ owner definition? Is the time period for this kind of notice of prosecution 6 months from date of incident?

Coupon-mad

With regards to the train operating company. Do they have 6 months in which to start magistrate proceedings? 

No, they have no rights or interest.  This isn't a penalty.

I’m confident (now) with regards to NCP and dealing with the current NTKs but could they respond to my rejection by changing their strategy and sending a new notice which is a ‘penalty’ notice for breach of railway bylaws? 

No.

Westie87

I've taken a look at the Newbies template and adapted to suit my circumstance. Please can people cast their eyes over this before I send it. This will be replicated on every charge I get sent so want to make sure it's right.

Re PCN number:

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement. There will be no admissions as to who was driving and no assumptions can be drawn. NCP have failed to comply with the Protection of Freedoms Act 2012 and therefore the keeper has no liability. The land is not relevant land and as such the keeper has no liability.

Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date.

Umkomaas

The land is not relevant land ** and as such the keeper has no liability.

** ADD 'under para <xxxx> of PoFA Schedule 4'.

Westie87

Hello again all,

I have an update on my cases I would like to share and seek further advice.

I replied to all 7 of my PCN's with the same appeal which was as follows -

Date of appeal 01/02/2022
'Re: PCN number xxxxxxx. I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement. There will be no admissions as to who was driving and no assumptions can be drawn. NCP have failed to comply with the Protection of Freedoms Act 2012 and therefore the keeper has no liability. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close-up actual photograph of the sign you contend was at the location on the material date.'

They replied to all 7 of the appeals this morning with the exact same response to each one, as follows - 

Response to appeals dated 14/02/2022
'Dear Mr XXXXXXXXXX

Thank you for your appeal received on 1st February 2022 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 full payment was not received for your parking session. However, on this occasion as a gesture of goodwill we will reduce this to £20 administration fee.

Please in future ensure you pay the correct tariff to ensure you do not receive any further Parking Charge Notices. We can advise you paid the off-peak rate rather than the peak rate tariff.

On Railway Land managed by NCP, we currently enforce under contract law. We are not allowed to use the provisions of The Protection of Freedoms Act 2012 (POFA) & Keeper Liability as Railway Land is exempt from this. Therefore, timescales defined in POFA are not required to be met but there is an expectation that if an operator does not make use of Keeper Liability provisions, they are expected to adhere to the DVLA’s guidelines and contractual requirements to issue the Parking Charge Notice (PCN) no later than 7 months after the parking event. 

You now have 14 days from the date the letter is received to pay at the discounted rate of £20. If after 14 days payment hasn't been made the charge will increase to the full rate of £100.

Therefore to make payment please visit xxxxxxxxx. Once full payment is received the case will be closed.  

You have reached the end of our internal appeals procedure. NCP will not assess further appeals in relation to this matter. However, in line with our Accredited Trade Association (ATA) membership we are required to provide you with an Independent Appeals Service. If you wish to appeal your case further you can now only do so to Parking On Private Land Appeals (POPLA) provided by Ombudsman Services on instruction of the British Parking Association. All information on how to appeal to POPLA is provided on their website; xxxxxxxx you will need the following 10-digit verification code to submit your appeal; 4380452010.

Please note that should you wish to appeal to POPLA you must do so within 28 days from the date of this letter. If POPLA reject your appeal you will be liable for the full amount of this PCN. The discounted amount will not be reinstated under any circumstances. POPLA will also not asses a case that has been paid prior to the appeal being received by them. By law we are also required to inform you, Ombudsman Services (xxxxxxxxx) provides an alternative dispute resolution service (ADR) that would be competent to deal with your appeal. However, NCP have chosen not to participate in their ADR service and as such should you wish to appeal further you must do so to POPLA as detailed above.

 

Best regards,

National Car Parks'

Now my view on this is that they would no way offer a £20 'gesture of goodwill' to someone 7 times if they thought they were right. The fact that they have offered this combined with the passive aggressive threats of if I lose my POPLA appeal I will be liable for the full amount which of course isn't correct as I don't have to go with POPLA decision. I'm not sure what liability provisions/ guidelines and contractual requirements they are referring to do with the DVLA - this seems weird.

What would you guys do now? I am fairly confident that they are on to a loser and they are desperate; therefore I should reject their offer. However part of me is thinking if I can get rid of 7 PCNs for £140 it would save a lot of time, stress and hassle and remove any future risk if they chose to go to court etc....

I took the weblinks out as it wouldn't let me post them on here.

So 'wrongly' accept the cheap offer? Or re-raise them all in and call their bluff?

Look forward to all advice.

Thank you.

D_P_Dance

However, on this occasion as a gesture of goodwill we will reduce this to £20 administration fee.

As a gesture of goodwill refer them to Arkell v Pressdram

https://prunescape.fandom.com/wiki/The_Reply_Given_in_Arkell_v_Pressdram_(1971)

Umkomaas

Why didn't you add to your appeal about the land not being relevant land plus the addition to the sentence I gave to you on 17 January?  That's why you've had this from them because they think you're only challenging on the grounds of dates. 

Therefore, timescales defined in POFA are not required to be met but there is an expectation that if an operator does not make use of Keeper Liability provisions, they are expected to adhere to the DVLA’s guidelines and contractual requirements to issue the Parking Charge Notice (PCN) no later than 7 months after the parking event. 

They are correct in what they are saying above. 

As long as there is no identification of the driver then you can win this at POPLA, but, you must fully take on board the advice you're given. There are no shortcuts. 

Do you have seven separate POPLA verification codes from NCP?  You must appeal each case separately to POPLA (you cannot roll them all into one).  You just need to hone your first one, get the 'go ahead' from the forum, then you can copy and paste that for the remaining six. 

If time allows, I'd get that first one in as a 'tracer' to see how POPLA react. If you get a cancellation, then pile in with the remainder. It may even be that NCP see your case as unwinnable for them at POPLA, save their POPLA fee and a pile of work and cancel each PCN as it gets to the POPLA stage.  Time will tell. 

Westie87

The reason I didn't include the bit about relevant land was that I didn't want to play all my cards at once. I was anticipating them replying with 'POFA isn't applicable' then in my rebuttal state the additional information about relevant land. I think even if I said that in my opening appeal, they would have still just done this same reply with the £20 gesture. Anyway we are where we are.

These are all separate PCNs with separate appeals and separate POPLA codes.

When you say they are correct - I'm not aware of what this 7 month DVLA guidance is? Can you elaborate? Also why does DVLA guidance matter in contract law?

I'll put together a POPLA appeal and put it on here for review. My past experience with POPLA is that they take ages to respond which then would ruin the '14 day gesture' but hopefully they respond in the time frame.