NCP Railway Appeal won.. Many Thaks

Dazzzajudo

I would just like to say a big thank you to all the contributors on this site, as i have followed your advice and have appealed against 5 PCN's 

Last November 2021 i parked at my local GA Station (Rayleigh) i have an Autopay account with GA so that i don't forget to pay for parking, anyhoo in Jan 2022 i received a PCN from NCP. I checked my Autopay account and my car registration had disappeared from my account, So i appealed to NCP with this information.. Account number ect, but they returned it saying that i was liable and wanted payment. So i took it on the chin and i paid the £60. Then a couple of days later i received another 2 PCN's... This is when i googled and came to one of the posts on this forum. I read it and read all the Newbie information and then appealed to NCP for both PCN's and as expected the denied my appeal, So copied and pasted the below appeal to POPLA. Changing the Ref Number each time obviously.  A week later after sending of my appeal i received another 3 PCN's from NCP for the same car park and i have done the same appeal format letter and sent it off to POPLA after being knocked back from NCP obviously...
I added Item 6 because i am a train driver and even though i don't mind paying for my parking i thought i would add this part of the byelaw showing that i was exempt from the byelaw that they were issuing me with. 

 This appeal is submitted in relation to the ‘Parking Charge Notice to Keeper’ dated 28/01/2022 2019 (ref. GA000XXXX) issued by National Car Parking Limited (‘NCP’) for vehicle registration number XXXX (the ‘PCNtK’). A copy of the notice is submitted for your reference. As registered keeper of the above vehicle, I wrote to NCP on 21/01/2022 challenging the PCNtK. NCP responded on 06/02/2022 stating that the appeal had been unsuccessful.

Their reply was as follows

“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.”

The appeal is made on the following grounds, which was ignored by NCP as they have not responded to.

1: Exemption from PCN on grounds of contravening Railway Bylaw 14

2: Non-compliance with PoFA;

3: Contrary to paragraph 21.5a of the BPA CoP.

So, I am appealing to POPLA on the following grounds, full details of which are provided
below:

1:  Railway land is not ‘Relevant Land’ for the purposes of the Protection of Freedoms Act 2012 (‘PoFA’) and therefore, there is no keeper liability

2: Contrary to paragraph 21.5a of the BPA CoP.

3: No evidence of landowner authority;

4: Non-compliance with PoFA

5: The ANPR system is neither reliable nor accurate

6: Exemption from PCN on grounds of contravening Railway Bylaw 14

Railway land is not ‘Relevant Land’ for the purposes of the Protection of Freedoms Act 2012 (‘PoFA’) and therefore, there is no keeper liability

 

The NCP operated car park at Rayleigh station is located upon land belonging to the railway and therefore the car park is not ‘relevant land’ as defined by paragraph 3 of Schedule 4 of PoFA, being subject instead to Railway Byelaws.

On the basis that Byelaws are assumed to cover this station, it follows that PoFA is not applicable to this case and any claim made for parking charges by NCP against the driver or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point, I require them to produce documentary proof from the landowner that this land is not covered by the said byelaws.

Notwithstanding that NCP are not entitled to claim under Railway Byelaws, they have not followed correct procedures even if they were entitled to do so. By claiming the charge is liable to them, NCP appear to be attempting to claim this under Railway Byelaws. I reject this and require them to state which Byelaw they claim is broken, and in any case, why this would result in an obligation to pay NCP.

It is also worth noting Freedom of Information Act Request F0013227, whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of Railway Byelaws is a criminal offence, not a breach of any contract NCP may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government rather than NCP or the railway. Further, Byelaw offences are decided by the court, not by NCP; the parking operator or railway can only allege the breach.

Further, POPLA guidance issued in 2018 with regard to penalty notices issued under Railway Byelaws, states several expectations of a penalty notice that have not been followed in this instance. For example:
• A Penalty Notice (‘PN’) should say it is a penalty notice – in this case, NCP has issued a ‘parking charge notice’.
• A PN should confirm how the byelaws were brought to the motorist’s attention – the PCNtK does not reference byelaws at all.
• A PN should confirm the law under which it has been issued – the PCNtK is silent on this point.
• A PN should not use the words ‘parking charge notice’ – the PCNtK is clearly labelled as a ‘Parking Charge Notice’

 

Contrary to paragraph 21.5a of the BPA CoP.

POPLA also notes that the timescales of PoFA 2012 should be followed for penalties issued on railway land, ie issued via post in the period of 14 days beginning with the day after the day after that on which the specified period of parking ended. As noted below, this PCNtK was sent outside of this period.

Non-compliance with PoFA
Even if the car park was considered ‘relevant land’ under PoFA, NCP has failed to comply with the requirements of Schedule 4 of that Act, namely, by issuing the NTK too late for keeper liability to apply.

Under schedule 4, paragraph 4 of the PoFA 2012, an operator can only establish the right to recover any unpaid parking charges from the registered keeper of a vehicle if certain conditions are met. Specifically, paragraph 6 (1) states:
“6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)
(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b) has given a notice to keeper in accordance with paragraph 9.

Paragraph 9 is the relevant paragraph here as the PCNtK was sent by post.

Paragraph 9 (2f) states that the Notice to Keeper must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full; and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The PCNtK sent to me as registered keeper does not give any such warning, nor state any such right to recover charges from the keeper.

In addition, Paragraph 9(4) of PoFA states that 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.

The relevant section here is b) as the PCNtK was sent by post. Paragraph 9(5) states that 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.

Paragraph 9(5) of PoFA is reinforced by paragraph 21.6 of the BPA Code of Practice. This states that if an operator wants to make use of the keeper liability provisions in Schedule 4 of PoFA, and it has not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, its Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).

This PCNtK was sent to me as registered keeper [49] days after the alleged event. This is evidenced in the submitted PCNtK which states the date of the incident as [9 November 2021] and the date of sending the notice as 28 January 2022. This is a breach of both PoFA and the BPA Code of Practice and means there can be no keeper liability in this case.

 1/2

Dazzzajudo

2/2

No evidence of landowner authority.

 

As NCP does not have a proprietary interest in the land, 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 including exemptions, such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, is key evidence to define what NCP is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 on the basis of information on Greater Anglia’s own website, would appear to be longer than the bare minimum times set out in the BPA CoP), and basic information such as the land boundary and bays where enforcement applies/does not apply. Witness statements would also fail to provide evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the BPA CoP defines the mandatory requirements on landowner authority. Specifically, Paragraph 7.1 states that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Further, paragraph 7.2 states that “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.”

Paragraph 7.3 goes onto clarify what the written authorisation must set out, namely:
(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.

NCP have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that NCP are entitled to pursue these charges in their own right (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce byelaws themselves, only the Train Operating Company or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court).

I require NCP to provide a full unredacted copy of the contemporaneous, signed and dated contract with the landowner. It will not be sufficient for NCP merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner, not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put NCP to strict proof of compliance with all of the above requirements.

 

The ANPR System is neither reliable nor accurate

NCP has 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 BPA CoP. Further, paragraph 20.5a of the BPA CoP states that when issuing a parking charge notice the operator “may use photographs as evidence that a vehicle was parked in an unauthorised way… A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered” (own emphasis added).

Whilst NCP has included photos of the car on the PCNtK, the photos are not dated or time stamped, rather these details are added to the letter. The same is true on the NCP PCN website. This is contrary to paragraph 20.5a of the BPA CoP. The PCNtK also shows no parking time, merely images of a vehicle and a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. Whilst times are shown at the bottom of two images on the website, these times do not equate to any single evidenced period of parking. By NCP's own admission on their PCNtK, one of these times is claimed to be the exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence of actual parking times this would fail the requirements of paragraph 9(2)(a) of PoFA (notwithstanding my earlier point on byelaws) which states: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Consequently, NCP cannot demonstrate that these dates and times are correct and relate to the actual recording of the ANPR camera(s). I therefore require NCP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised to ensure the accuracy of the ANPR images. I also ask them to prove that the times quoted in the PCNtK are directly linked to the camera.

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 NCP 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 from 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. NCP has not provided any evidence to show that their system is reliable, accurate or maintained.

 

Exemption from PCN on grounds of contravening Railway Bylaw 14

 

As previously mentioned, the car park is Railway Land is therefore covered under the Railway Act 1993 and the Railway Bylaws and the PN should be issued under Railway Bylaw 14

Which states

no person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by an operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by an operator or an authorised person at that place

Railway Bylaw 24 (6)

breaches by authorised persons: an authorised person acting in the course of his duties shall not be liable for breach of any of the byelaws numbered 2, 4(2), 6(3) and 6(5), 7, 9, 10, 11(1), 13, 14, 15, 16(6), 17, 18, 19 and 20(1)

Railway Bylaw 24

1. Definitions

In these byelaws the following expressions have the following meanings:

“authorised person” means:

1.a person acting in the course of his duties who:

(a) is an employee or agent of an operator or

(b) any other person authorised by an operator

“Notice” means a notice given by or on behalf of an operator.

“Operator” means:

any person authorised to be the operator of a railway asset by virtue of him holding a licence granted in accordance with Section 8 of the Railways Act 1993 (as amended by the Transport Act 2000; as amended by the Railways Act 2005), and

those persons listed in schedule one

but excluding those persons listed in schedule two

“Previous byelaws” means those byelaws listed in the table of previous byelaws, which have been made in relation to the railway by:

an independent railway operator under section 129 of the Railways Act 1993, and

the Strategic Rail Authority under section 219 and schedule 20 of the Transport Act 2000

I am not liable for the breaching of Bylaw 14 as i believe that i am an "authorised person acting in the course of his duties" under Bylaw 25. as an employee of an “Operator” XXXXXltd and was acting in the course of his duties, as shown in the attached documents.

 

For the above  reasons, I ask as keeper of vehicle XXXX that my appeal is upheld and PCN GA000XXXX cancelled.

So as of this morning i received 2 emails from POPLA  saying this below

Thank you for submitting your parking charge appeal to POPLA.

An appeal has been opened with the reference XXXXX

NCP ANPR Rail - EW have told us they do not wish to contest the appeal. This means that your appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

So 2 down and 3 to go...

A BIG Thank You to the contributors on this forum for your advice and to anyone who is thinking of appealing then read the posts and the Newbie posts and follow they advice because i can tell you it works...

D_P_Dance

The PPC have wasted your time, now waste theirs, read this,

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

Coupon-mad

You paid one though?

Glad we helped you.  In fact, all of them (including the first one) could have been easily won at POPLA just by not saying who was driving.  Very easy to appeal because railway land is non-POFA.

Never say who parked.

Did you get it refunded or get to the bottom of why NCP's chosen paybyphone system lost your VRM?

Dazzzajudo

Coupon-mad said:

You paid one though?

Glad we helped you.  In fact, all of them (including the first one) could have been easily won at POPLA just by not saying who was driving.  Very easy to appeal because railway land is non-POFA.

Never say who parked.

Did you get it refunded or get to the bottom of why NCP's chosen paybyphone system lost your VRM?

Yeah i paid one... but that was before i found this wonderful Forum... i will take that payment on the chin... 

I did email and complain to GA about the missing VRM from their website but all i got was to appeal... but like i said.. i tood that on the chin and also check that my VRM is on the Website before i park.. once bitten and all that...

Once again... a big thank you

Dazzzajudo

UPDATE....
Ive just received this from POPLA

Your parking charge appeal against NCP ANPR Rail - EW.

NCP ANPR Rail - EW has now uploaded its evidence to your appeal. This will be available for you to view by clicking here

Please note: some evidence may not show immediately, if it is not currently available on your account please check back later before contacting us.

You have seven days from the date of this correspondence to provide comments on the evidence uploaded by NCP ANPR Rail - EW.

These comments must relate to the grounds of appeal you submitted when first lodging your appeal with POPLA, we do not accept new grounds of appeal at this stage.

Any comments received after the period of seven days has ended will not be considered and we will progress your appeal for assessment. Therefore, if you have any issues with the evidence uploaded by (PO) such as being unable to view it online, please contact POPLA immediately via phone - 0330 1596 126, or email - info@popla.co.uk, so that we can look to rectify this as soon as possible.

After this period has ended, we will aim to issue our decision as quickly as possible. The decision we reach is final and binding. When the decision is reached there is no further option for appeal.

Yours sincerely

POPLA Team

for the 3 appeals i put in... just waiting for the evidence pack to be uploaded then i will rebut their evidence.. wish me luck













;

Dazzzajudo

@Coupon-mad just a little question for you.... what if NCP fail to upload their evidence pack or i have no access to their evidence pack on the POPLA site.. 

Dazzzajudo

UPDATE AGAIN 
IGNORE EVERYTHING I HAVE JUST POSTED 

I have just received this response from POPLA X3

 Decision

Successful

Assessor Name

Matthew Woodhouse

Assessor summary of operator case

In this case the operator has not submitted any evidence within the 21 days allowed, to show why it issued a parking charge notice (PCN) to the appellant.

Assessor summary of your case

I note the appellant has submitted grounds of appeal. However, as the operator has not given evidence within the time frame allowed, I do not need to consider the appellant’s submitted information in order to reach a decision about this appeal.

Assessor supporting rational for decision

POPLA’s remit is to assess whether a PCN has been issued correctly, in accordance with the terms and conditions of parking displayed on the signage at a site. When assessing a charge the burden of proof initially lies with the operator. It must provide evidence of the terms and conditions of the parking site, how the driver was made aware of the specific parking conditions, how the terms of the parking contract were breached, and how the appellant was made aware of the charge. As the operator has not submitted a case file or evidence within the 21 day period allowed, I am unable to assess the validity of the charge. I note the appellant has submitted their reasons of appeal, however I have no need to consider this information. I cannot assess the validity of the charge and therefore I consider it was issued incorrectly and allow this appeal.

HAPPY DAYS

Many Thanks Again

Umkomaas

Dazzzajudo said:

@Coupon-mad just a little question for you.... what if NCP fail to upload their evidence pack or i have no access to their evidence pack on the POPLA site.. 

Assessor summary of operator case

In this case the operator has not submitted any evidence within the 21 days allowed, to show why it issued a parking charge notice (PCN) to the appellant.

I think that answers your question, very nicely. Great win, well done. ✔️ 

Coupon-mad

Ironically, that just cost them a total of around £100 for those POPLA decisions, because they didn't simply withdraw when you first put in your POPLA Appeals.

NCP do seem to be dropping the ball on stuff this year.

Congrats!  Nicely done.