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

D_P_Dance

If this is relevant land and they do not know who  was driving, they are, imo, very unlikely to succeed at Popla.  

Umkomaas

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?

It relates to the KADOE contract with the DVLA. It's not 'DVLA guidance', it's a legal contract with contractual obligations which have to be met in order to access the registered keeper's personal data to pursue parking charges. If they are not pursuing under PoFA, the time limits to access that data is 6 months, with a further 28 days to issue the NtK. 

Westie87

Hello all,

Based on the advice of Umkomaas I have decided to take one of these fines further with POPLA to gauge how they view my case. I will settle the other 6 at £20 each (appealing just the 7th PCN). POPLA take 4-8 weeks to respond hence why am doing it this way. If I win the POPLA case then if I get more of these delayed fines sent through I know with certainty to dispute and then ignore.

Please see below my proposed response to POPLA - 

POPLA Appeal

Re PCN number: GA00094883

I disputed the 'parking charge' I received from NCP for the following reasons:

NCP do not know who was driving on the day of the alleged incident. As such they have sought to hold me, the keeper of the vehicle responsible. I have no liability or contractual agreement between myself and NCP. There will be no admissions as to who was driving (75 days before the Notice was issued..), and no assumptions can be drawn. 

NCP have failed to comply with the Protection of Freedoms Act 2012, for reasons included but not limited to issuing the first Notice 75 days after the incident (car park operates via ANPR). They have stated in their response to my appeal, that as the land is owned by the railway, they do not have to comply with POFA 2012. Whilst I understand that the land is not relevant land this argument does not make them right. As a matter of good business practice, they should aim to follow these guidelines. In any case, where the land is not relevant land they have no legal rights to indiscriminately harass and seek ‘parking charges’ from a keeper of a vehicle. There is no legal precedent for this. This is a Civil matter, and the onus of proof is on them to prove who the driver was and prove who they were in contract with. As a point of principle, whilst there is no obligation to do so, it is completely unreasonable to send a ‘parking charge notice’ 75 days after an incident and expect the keeper to know who was driving.

Side note – Not sure whether to include the below or not.

The PCN is for partial payment. Payment of £8 was made instead of £9. This is due to the parking app that NCP endorse, only charging you from the time you pay and there is no way on the app to backdate the parking or enter the time that you arrived to accurately pay the right amount. You can only pay what the app tells you to at the time of login. NCP would argue that payment should be made at the time of parking however from looking at the Greater Anglia website there is a very clear policy that allows drivers to pay up to 24 hours after they have left the car park. Granted it does say by paying 'online' and doesn’t mention the app but the point is that they should not have conflicting policies about how and when people can pay – which they clearly do and the methods they provide the customers with are not in sync and are misleading. If there is an agreed app to use, it should be able to function in the way the owner of the car park states it should on the website. As a bit of history – pre-covid the maximum fee was £8 a day….. after working at home for 18 months, returning to the car park, payment of £8 was made and assumed to be correct not realising they had upped the fee yet again to £9….

https://www.greateranglia.co.uk/travel-information/your-journey/car-parking#collapse-faqs-panel-1

The Pay by Phone app is what has been used in these instances, which allows you to pay whenever but charges you based on the moment you open the app (this is an endorsed payment method as you can see on the website).

It also states this on the site –

Online - You can pay online after leaving the car park. Post payment can be made until 4:00am the next day after your exit.

Umkomaas

I'd leave out the chunk of text relating to any underpayment. You don't want POPLA sidetracked and thinking there may be a degree of culpability. 

I will settle the other 6 at £20 each (appealing just the 7th PCN).

I'm struggling a bit with this. Why are you appealing the last, rather than first one?  Then, why are you paying 6 off (albeit at £20) when, as keeper, you have no liability for any charge.

I wouldn't work on the basis of POPLA taking 4-8 weeks to respond; I'd wager that NCP will throw their hand in long time before POPLA have to actually adjudicate. Even if it does go the full mile, what's the rush to pay off other charges right away?

Westie87

Umkomaas said:

I'd leave out the chunk of text relating to any underpayment. You don't want POPLA sidetracked and thinking there may be a degree of culpability. 

I will settle the other 6 at £20 each (appealing just the 7th PCN).

I'm struggling a bit with this. Why are you appealing the last, rather than first one?  Then, why are you paying 6 off (albeit at £20) when, as keeper, you have no liability for any charge.

I wouldn't work on the basis of POPLA taking 4-8 weeks to respond; I'd wager that NCP will throw their hand in long time before POPLA have to actually adjudicate. Even if it does go the full mile, what's the rush to pay off other charges right away?

Yea fair enough about the underpayment bit. I thought as much but thought I'd mention it as it does take the p***... Anyway, I'll leave that out.

I'll change it to appealing the first and oldest one then rather than the last one. I suppose that looks worse for them being even later..

The reason I am debating paying 6 off at £20 each is that if I'm wrong, or not exactly wrong but just lose somehow anyway...I'm on the hook for £700 of fines (and that's if they don't send all the other ones through to me totalling thousands). Basically If I win POPLA on the first appeal then I've lost £120 (£20 x 6 and the successful appeal is NIL) unnecessarily which isn't the end of the world. If I lose POPLA, NCPs 14 day offer to pay £20 goes away and reverts to £100. So I then I have a choice of paying £700 or potentially take it to the courts off the back of a failed POPLA appeal. Make that 7No. different court appearances if they choose to take that route.

Question is - am I/ we that confident this is a slam dunk win to the point that I shouldn't de-risk and lower my exposure by paying 6 off at a cheap price?

Is the main body of my proposed POPLA appeal ok?

Umkomaas

Yea fair enough about the underpayment bit. I thought as much but thought I'd mention it as it does take the p***... Anyway, I'll leave that out.

I've just read that part again and confirm my advice to leave it out. At best it's a bit of a rant, at worst, the ice under your feet is getting dangerously thin, allowing POPLA to make a determination as to whom the driver was.  POPLA will not be interested in any p***-take, they will be oblivious. Wasted.

The first part of the appeal relating to PoFA is fine. But, for good measure I'd use some of the other POPLA points from the NEWBIES FAQ Announcement, third post, to add further issues for NCP to have to deal with, making the job more difficult, and if your main PoFA point isn't enough for them, the other points will push them closer in opting out and go seeking lower hanging fruit. 

The reason I am debating paying 6 off at £20 each is ....

..... I'm tacitly accepting culpability! 

Question is - am I/ we that confident this is a slam dunk win to the point that I shouldn't de-risk and lower my exposure by paying 6 off at a cheap price?

1. Failure to issue NtKs within PoFA dates = No Keeper Liability
2. No PoFA para 9(2)(f) warning = No Keeper Liability
3. Railway byelaws apply = No Keeper Liability 

How nailed on are you needing this?

Make that 7No. different court appearances if they choose to take that route.

Irrational. Research 'cause of action estoppel' and Henderson v Henderson. 

Ultimately, the decision on how to proceed is yours, not the forum's. Whichever route you decide to take, there's always ongoing help here. 

Westie87

Hello again all,

Please see below my (hopefully final) draft appeal to POPLA. Please can you review and let me know if it is good enough or if I have done anything wrong.

Re PCN number: XXXXXXXX

Dear POPLA,

On 04th January 2022, National Car Parks Ltd (NCP) issued a ‘Parking Charge Notice to Keeper’ (NTK) to me stating the following –

‘’The driver of the above vehicle is liable for a Parking Charge of £100. This charge relates to the period of parking specified in this document, the charge having been incurred due to the following breach of the car park terms and conditions of use: Partial Payment, and liability of the same having been brought to the attention of the driver by clear signage in and around the site (Harlow Main CP) at the time of parking. The breach relating to the period of parking was recorded by an approved ANPR camera.’’

The NTK later goes on to state –

‘’We, National Car Parks Limited, are a creditor. At the time of this notice we do not know both the name of the driver and a current address for service for the driver…’

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1.       The Notice to Keeper is not POFA compliant

2.       The operator has not shown that the individual who it is pursuing is in fact liable for the charge

3.       The land is subject to railway bylaws

 

1. The Notice to Keeper does not comply with POFA Schedule 4 sub-paragraph 9 (2 & 5)

To support this claim further the following areas of dispute are raised:

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA).

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, NCP Ltd has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012.

 

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Monday 5th October 2021. The relevant period is therefore the 14 day period from Wednesday 6th October 2021 to Tuesday 19th October 2021 inclusive. Sub-paragraph 9 (6) states that 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. The “Date of sending this Notice” stated on the PCN is Tuesday 04th January and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Thursday 06th January (i.e. outside of the relevant period). The NTK was given an astonishing 93 days after the alleged incident.

 

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, NCP Ltd has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

The PCN states ‘Please be warned: that if, after the period of 28 days beginning with the day after that on which the Notice is given the amount of unpaid Parking Charge specified in this Notice has not been paid in full, further recovery action will be taken to secure payment.’

This makes no reference to POFA 2012 or any clauses therein and does not clearly inform the keeper that the operator has the right to claim any unpaid amount directly from the keeper. The wording on the PCN is not clear or specific enough to be deemed compliant with POFA sub-paragraph 9(2)(f). ‘further recovery action will be taken to secure payment’ does not confirm this action will be taken against the keeper or that they have any right to do so or that this is only actually possible if they themselves have so far complied with all other requirements of POFA 2012 schedule 4.

 

2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge

NCP Ltd have confirmed that they do not know who was driving on the day of the alleged incident. As such they have sought to hold me, the keeper of the vehicle responsible. As keeper of the vehicle, I have no liability or contractual agreement between myself and NCP. There will be no admissions as to who was driving, and no assumptions can be drawn.

 

3. The land is subject to railway bylaws

NCP Ltd have stated in their response to my appeal ‘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.’ This response can only be viewed as deliberately misleading. What they are alluding to with this comment is that the car park is not deemed relevant land and therefore POFA would not apply. There are no keeper liability provisions under railway bylaws. Where the land is not relevant land NCP Ltd have no legal rights to indiscriminately harass and seek ‘parking charges’ from a keeper of a vehicle. There is no legal precedent for this.; this is a Civil matter, and the onus of proof is on NCP Ltd to prove who the driver was and prove who they were in contract with (see point 2) They refer to contract law, but under contract law there MUST be an offer and acceptance between 2 or more parties to form a contract. The keeper has not entered into any contract with NCP Ltd and as such their comment about enforcement under contract law is completely redundant.

 To summarise -

NCP failed to issue the Notice to Keeper within the POFA dates -  No Keeper Liability

No POFA Paragraph 9(2)(f) warning -  No Keeper Liability

Railway byelaws apply for which there is no Keeper Liability

NCP Ltd confirm they do not know the driver and as such do not know and have not evidenced who they are in contract with. The keeper did not enter into contract with NCP and as such there is no keeper liability.

Coupon-mad

Looks fine if those 2021 dates are right?

Personally, I'd ALWAYS include the usual POPLA templates from post #3 of the NEWBIES thread about unclear signs and 'no landowner authority' to make NCP run away for good.

NCP are not showing themselves to be on the ball admin-wise this year, so I think they will offer 'no contest' and throw in the towel.

Westie87

Yea the 2021 dates are correct. Just realised I need to add 2022 dates to the January dates as I forgot to state the year for some reason. 

Glad it’s ok. I will add the extra points as you mention (signage etc.) especially since I requested that they send a close up picture in my appeal and they ignored the request. 

Westie87

SUCCESS UPDATE - 

Please forgive the long post that includes details that I already posted previously but I thought it best to have 1 big post that people can refer to in the future if they need help. Please just just scroll to the last paragraph for the conclusion if you wish.

January 4th 2022 - I received 7No. NTK PCNs from NCP relating to alleged parking infractions at Harlow Town Rail Station.

I appealed stating the following - 

'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 with - 

'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'

I did not accept the £20 offer for any of the 7 and decided to submit my POPLA appeal for each NTK. 2 of my POPLA codes were incorrect as they had issued the same codes to another person. I asked them for new codes and received no reply. The other 5 were submitted properly and my final appeal was as follows - 

I will update this when i get home as dont have it saved on current laptop.

2 weeks later I received 5 email responses to my appeals which were as follows - 

'Dear Mr  xxxxxxxxx,

The operator has contacted us and told us that they have withdrawn your appeal.

If you have already paid your parking charge, this is the reason your appeal will have been withdrawn. Unfortunately, you cannot pay your parking charge and appeal, which means that POPLA’s involvement in your appeal has ended. You will not be able to request a refund of the amount paid in order to resubmit your appeal to us.

If you have not paid your parking charge, the operator has reviewed your appeal and chosen to cancel the parking charge. As the operator has withdrawn your appeal, POPLA’s involvement has now ended and you do not need to take any further action.

Kind regards

POPLA Team'

Big Success! As you can see from my POPLA appeal; I used the incredibly valuable advice from here combined with a little snippet of my own whereby I picked up that if they confirm in writing on the NTK that they do not know who the driver is, then how can they state in the rejection of my appeal that they enforce under contract law - It's impossible. You need at least 2 parties to form a contract and if they don't know who the driver is then they do not know who they are in contract with so it's a complete slam dunk win in my view.

Whilst this was going on I received 3 other NTK PCNs relating to 2 dates in December and 1 in February. I used the same first appeal as my previous first appeal but did not miss off the bit about relevant land this time. They accepted my 1st appeals for all 3 of these stating the following - 

'Dear Mr xxxxxxxxxxx

Thank you for your correspondence in relation to the above case.

We are writing to let you know that we have reviewed the circumstances of this case and have decided to accept your representation. The Parking Charge Notice (PCN) has been cancelled as a gesture of goodwill.

Please note that this decision is for this contravention only and should not be considered in relation to any PCNs, which may be issued in the future.

This case is now closed and no further action will be taken.

Best regards,

National Car Parks'

Assuming the 2 NTKs with faulty popla codes are now redundant or end up going the same way as the others - I have succeeded and won against 10 NTKs. Thank you very much for the help I have been given in here and I hope anything I have added can also be of use to others in the future.