NCP PCN at Cambridge Rail Station - late receipt, railway byelaws, etc.

jamezm

Hi fellow forumites. I know of somebody who, as registered keeper of a vehicle, received a 'Parking Charge Notice to Keeper' from NCP following an allegation of parking for around 40 mins in the car park at Cambridge Rail Station. This area is under ANPR monitoring and there was no notice placed on the vehicle's windscreen. The PCN 'invites' the keeper to pay the charge or identify the driver and there is no direct statement that the keeper is necessarily liable. There are numerous potential grounds for appeal (including the late arrival of the Notice to Keeper and the likelihood that this is Network Rail land and subject to railway byelaws). The keeper's intention is to be clear and comprehensive when appealing rather than waiting for POPLA stage so the intended appeal will state the following. 

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"I dispute the 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.

Please provide an explanation of the allegation and your evidence for any contravention. You should include:

• close-up photographs of the clear signage you contend was at the location on the material date, and evidence for the location of such signage
• evidence for the location of the cameras from which the ANPR photographs were taken
• evidence that the driver had accepted the terms and conditions of use
• evidence that the driver had in fact parked the car in the car park for the stated duration (rather than merely photographs showing entry and exit from the general area)
• evidence of ownership of the land
• evidence of written authority to manage parking at the site for the landowner

If the allegation involves an alleged overstay of minutes, your evidence should include the actual entrance and exit grace periods agreed by the landowner.

Further, it is noted that the parking charge notice is dated [XX January 2022], yet it was only received on [XX February 2022]. This suggests it was in fact sent after the stated date. Please provide evidence of when the notice was posted.

Further, whether the notice was sent on the stated date, or sometime later, this is much later than 15 days after the date of the alleged contravention on [XX November 2021]. It is noted that the parking charge notice also does not include all of the details required under the Protection of Freedoms Act 2012 (“POFA”) (including, but not limited to: stating whether a notice to the driver was given or placed on the vehicle; and specifying the maximum additional costs you may seek to recover).

In any event, the amount of the parking charge is disproportionate and is not based upon any commercially justifiable loss to you or the landowner.

Further, as the site is at Cambridge railway station, it is contended that this is not relevant land, since the definition of relevant land in POFA specifically excludes land where parking of a vehicle is subject to statutory control, such as railway stations which are covered by railway byelaws.

In light of the above, there is no legal right to enforce the parking charge against the keeper of the vehicle and I reserve the right to bring a complaint to the DVLA and ICO (for the release of the keeper’s data without reasonable cause) and to the British Parking Association (for your failure to adhere to their Code of Practice) and to the landowner.

I separately reserve the right to bring a claim against you for misleading and aggressive action under the Consumer Protection from Unfair Trading Regulations 2008."

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Any advice or suggestions welcome! Much appreciated.

Fruitcake

Remove this, as it was killed off by the Supreme Court ruling in the infamous Beavis vs ParkingEye case.


In any event, the amount of the parking charge is disproportionate and is not based upon any commercially justifiable loss to you or the landowner.

The rest looks okay to me, although you will have shown your hand for PoPLA. However, you will have time to determine if byelaws do apply by identifying the landowner. If the car park is a railway asset then it will probably be owned by (insert new name for Network Rail here) or the train operating company.

Also get pics of the site and signage (on foot) in case it does go to PoPLA.

You do seem to have a good understanding of this unregulated industry, but do please complain to the landowner and your MP as well.

Umkomaas

If they are not pursuing the charge under PoFA, all the references to byelaws and 'not relevant land' are meaningless. 

Looks like the NtK is just an invite to provide the driver's identity, so you can simply add a final few words to the appeal that as there is no requirement for the keeper to identify the driver, you will not be doing so. As they are unable to pursue you as the keeper, you expect no further communication from them (other than perhaps to confirm cancellation of the charge).  Should they persist in pursuing you, with continuing lack of reasonable cause, you will ask the DVLA to investigate, and report their behaviour to the BPA for consideration of sanction points imposition. 

jamezm

Quick update: Frustratingly, NCP have rejected the appeal and provided a PoPLA verification code. They've ignored my questions. I guess I just copy and paste most of the original appeal language into the PoPLA form?

Here's what they've said.
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Thank you for your appeal received on [ZZZ] 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 payment was not made for your parking session. 

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 £60. 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 www.gaparking.co.uk/pcn. 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; www.popla.co.uk you will need the following 10-digit verification code to submit your appeal; [ZZZ]

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 (www.ombudsman-services.org) 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 

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Any guidance welcome!

Umkomaas

Make sure the first appeal point in your POPLA submission is 'No possible keeper liability, not relevant land and NCP admit they are not seeking to pursue under PoFA, so the charge must be cancelled'. The Assessor shouldn't need to read beyond that, but use and add the other appeal points detailed in the NEWBIES FAQ Announcement, third post, for good measure!

jamezm

So here's my proposed POPLA appeal:

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I am the registered keeper of vehicle registration [XXX] and I wish to appeal a recent NCP parking charge number [YYY] using POPLA verification code [ZZZ]. My appeal was refused by NCP on the grounds stated in their appeal reply email dated [2022].

I am appealing this parking charge principally because there is no possible keeper liability, this was not relevant land, and NCP admit they are not seeking to pursue under Protection of Freedoms Act 2012 (“PoFA”), so the charge must be cancelled. But I have stated the full grounds below:

1.       No Keeper Liability

2.       No Landowner Authority

3.       Inadequate Signage

4.       No Acceptance of Terms

5.       No Parking for the Stated Duration

 

1. No Keeper Liability

I am the registered keeper of the vehicle. As registered keeper, I deny any liability or contractual agreement in respect of this parking charge notice as NCP’s claim is against the driver and no claim of keeper liability has been nor can be made.

Note that the site is at Cambridge railway station, and it is contended (and NCP have accepted) that this is not relevant land, since the definition of relevant land in PoFA specifically excludes land where parking of a vehicle is subject to statutory control, such as railway stations which are covered by railway byelaws.

Further, it is noted that the parking charge notice is dated [2022], yet it was only received on [2022]. This suggests it was in fact sent after the stated date. Whether the notice was sent on the stated date, or sometime later, this is much later than 15 days after the date of the alleged contravention on [2022]. It is noted that the parking charge notice also does not include all of the details required under PoFA (including, but not limited to: stating whether a notice to the driver was given or placed on the vehicle; and specifying the maximum additional costs they may seek to recover).

NCP have themselves admitted that they are not allowed to use the provisions of PoFA to establish keeper liability.

In light of the above, there is no legal right to enforce the parking charge against me as the keeper of the vehicle.

2. No Landowner Authority

There is no evidence of Landowner Authority – NCP 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 or charge cancellation rights, and of course all enforcement dates/times, permitted waiting periods, grace periods, and the boundary of the site) are 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).

Paragraph 7 of the aforementioned BPA Code of Practice 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”

3. Inadequate Signage

NCP is put to strict proof as to the adequacy of the signage. In my appeal submission to NCP I specifically requested close-up photographs of the clear signage they contend was at the location on the material date, and evidence for the location of such signage, as well as evidence for the location of the cameras from which the ANPR photographs were taken.

4. No Acceptance of Terms

NCP is put to strict proof that the driver had accepted the terms and conditions at the site. If the signage asserts that drivers agree to be bound by the terms and conditions by the act of parking in the car park then NCP is specifically put to strict proof that the vehicle was indeed parked in the car park (as distinct from dropping off or picking up a passenger, or waiting in a waiting zone, or remaining in motion, etc.).

5. No Parking for the Stated Duration

NCP is put to strict proof that the vehicle was in fact stationary and parked for the full stated duration. It is noted that the site is a railway station and vehicles enter and exit that location for pick-ups and drop-offs of train passengers.

 

In these circumstances I request that my appeal is upheld and that the Parking Charge Notice is cancelled.

Yours faithfully

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Thoughts and guidance welcome!

jamezm

Bump for any thoughts and guidance. Always much appreciated! 

jamezm

I'll go ahead and submit the above now for my POPLA appeal. Wish me luck guys!

Umkomaas

It looks good. I suspect NCP will withdraw, saving themselves the £30 POPLA fee they would have to pay should they continue to pursue through the appeal process. 

tmtelecaster

@jamezm - appreciate this is many months down the line now but how did your appeal to POPLA go? I'm asking as I am in a near-identical situation with NCP having rejected my initial appeal following a Notice to Keeper, and they say POFA 2012 does not apply as it is railway land. I have not given the name of the driver.
Thanks in advance!

Umkomaas

tmtelecaster said:

@jamezm - appreciate this is many months down the line now but how did your appeal to POPLA go? I'm asking as I am in a near-identical situation with NCP having rejected my initial appeal following a Notice to Keeper, and they say POFA 2012 does not apply as it is railway land. I have not given the name of the driver.
Thanks in advance!

It's always disappointing and frustrating when a poster doesn't provide any feedback/update on the conclusion of their case, especially when forum regulars have given freely of their time by offering their advice. 

This poster hasn't been near the forum for over 8 months - may have fallen under a train 😄 - you could send them a PM with your query, when a MSE email will hit their inbox informing of your attempt to contact.