Successful POPLA appeal for NCP train station ticket Motorcycle August 2023

preprof · 25 September 2023 at 10:00PM

Thanks very much to this discussion. I adapted the templates for an appeal to popla and NCP withdrew the PCN charge. Posting my letter below in the hope it helps someone else with NCP parking at railway stations.

The letter is long and adapted to the specific situation. After uploading I got an email to say that NCP were not going to contest. A pain to write but a good outcome especially as I was rather incensed by the gall of the parking operator.

Good luck all, this does work! cut into muntiple posts due to word limit.

LETTER TO POPLA
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POPLA Reference Number: XXXXXXXXXX

As the registered keeper of the vehicle XXXXXXX I wish to appeal a recent parking charge issued by National Car Parks Ltd (NCP). In summary, my motorbike has parked in the same location since 2015 and recently received a PCN with no notice. I assert that the charges issued by NCP are arbitrary, excessive, unfair and unenforceable.

I submit the points below to show that I am not liable for the parking charge:

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. A compliant Notice to Keeper was not served: The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012.

3: The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract.

4: No evidence of landowner authority for the land on which the motorbike was parked has been provided.

5. The operator has changed the terms of parking without notice or making changes to signage in contravention of the BPA code of practice.

6: Excessive and inconsistent charges applied in contravention of the Consumer Rights Act 2015 (CRA 2015).

7: The charge does not represent a genuine pre-estimate of loss because the charges for a cycle are the same as for a car, and are not applied to other cycles.

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

The NCP operated car park at Cambridge 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 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.

Therefore, any breach of Railway Byelaws is 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. Specifically:

• 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 PCN does not reference byelaws.

• A PN should confirm the law under which it has been issued – the PCN does not reference which law.

• A PN should not use the words ‘parking charge notice’ – the PCN is clearly labelled as a ‘Parking Charge Notice’

I require the Operator NCP to provide evidence that they have authority to enforce a breach of railway byelaws or documentary proof from the landowner that the land in question is not covered by railway byelaws.

2. A compliant Notice to Keeper was not served – The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012.

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 not complying with Section 9(2), which states:

(2) The notice must:

(a) specify the vehicle, the relevant land on which it

was parked and the period of parking to which

the notice relates;

(b) inform the keeper that the driver is required to

pay parking charges in respect of the specified

period of parking and that the parking charges

have not been paid in full;

Under schedule 4, an operator can only establish the right to recover any unpaid parking charges from the registered keeper of a vehicle if these conditions are met. The letter I received does not meet these conditions because:

(b) the period of parking to which the notice relates is not included in the letter. The letter does not state the times for which the contravention took place, and therefore does not confirm that the vehicle was not in the grace period for which no charges are due and no contract is entered into.

This is a breach of both PoFA and the BPA Code of Practice and means there can be no keeper liability in this case. The onus is upon the operator, NCP, to provide evidence to the contrary, and I require them to provide the times that the vehicle was present on the land to prove that the vehicle was present for longer than the grace period.

3: The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract

The signage failed to comply with the BPA Code of Practice, There was insufficient and unclear signage at the site. This means no contract can be formed with the landowner and the ticket is issued illegally.

The signage is not compliant in two ways:

1. The rear entrance to the car park next to the motorcycle parking area has no signage whatsoever. There is signage at another entrance which is the main entrance, but as motorcycles can enter by the rear entrance they will not see any signage.The signs in this car park are therefore not clear or legible for those entering the area from the alternative entrance and there is insufficient notice of the sum of the parking charge itself. The burden of proof is on NCP to demonstrate that there was sufficient and legible signage. Any alleged contract could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park), as this is too late. This is in breach of Appendix B (Mandatory Entrance Signs). I demand that NCP provide clear evidence that there is signage at all entrances to the land and that this signage could be seen before a motorcycle parks in the motorcycle parking space.

See Image 1 below: Evidence that there is no signage at the rear entrance to the car park

2. The land on which the motorcycle was parked has a visible sign showing motorcycle parking. Motorcycles and bicycles have parked in this location for many years. My vehicle has parked in this location weekly since 2015 – and never received a PCN. Other cyclists also park in this area and they have reasonably concluded that it is an allowed place to park. On the day this PCN was issued the parking area was half full with other motorcycles which were parked in the area (see image 4 below for evidence). Moreover, parking attendants have not issued PCNs for motorcycles parked in this location before, and since, and motorcycles continue to park in this area. The fact that PCNs are normally not issued for this location indicates that NCP employees have different interpretations of the signage, and it is therefore unclear.

See Image 2 below: Evidence of motorcycle parking sign clearly visible from the parking area

See Image 3 below: Close up of the parking sign

See Image 4 below: Evidence of other motorcyclists parking in the same location.

This is generally considered a legitimate place to park even by NCP employees. Therefore the signage may have confused the single parking attendant who issued a PCN for my vehicle. As a PCN has never been issued for parking in this area before, I conclude that this charge was in error.

If NCP disagrees with this conclusion, I demand NCP produce witness statements from other parking attendants as to why they have not issued PCNs for this location, and the number of patrols where PCNs were not issued for this location. This should include dates and times for parking attendant patrols over the past 5 years, and written statements from parking attendants on their reasons for not issuing PCNs for parking in this location. I believe that this will show that the PCN was issued in error because this is regarded as a valid parking zone by NCP employees, and as NCP have the evidence to confirm or deny this, they must produce it, because they have a burden of proof to show the PCN was issued correctly.

preprof · 25 September 2023 at 10:00PM

4: No evidence of landowner authority for the land on which the cycle was parked has been provided

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. Particularly, the contract and any 'site agreement' or 'User Manual' setting out details of the boundary of land for which the operator is responsible. This will demonstrate if NCP have the right to issue a charge on this location which is at the far boundary of the car park. Due to the confusion amongst NCP employees on the status of this land being a valid or invalid parking place, it is reasonable to question the authority of the operator for two reasons:

1. If this area of land is actually within the boundaries covered by the contract with the landowner.

2. If NCP has an assignment of rights to pursue a penalty charge for cycles parked on railway land.

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.

It is my assertion that:

Firstly, the Operation NCP have not demonstrated their authorisation to act on the location of the land where the PCN was issued and if it is indeed within a clearly defined boundary as the BPA CoP requires. Secondly, the Operator is confused over the status of this land, and furthermore has no legal status to enforce this charge, because 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.

I therefore 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, as this do not show sufficient detail (especially the land boundaries in question). 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, I put NCP to strict proof of compliance with all of the above requirements.

5. The operator has changed the terms of parking without notice or making changes to signage in contravention of the BPA code of practice

In order to comply with paragraph 18 of the BPA Code of Practice, the Operator must notify motorists of those changes as follows:

18.11 Where there is any change in the terms and conditions that

materially affects the motorist then you should make these

clear on your signage. Where such changes impose liability

where none previously existed then you should consider

a grace period to allow regular visitors to the site to adjust

and familiarise themselves with the changes.

I assert that there was a material change in conditions which was not notified by the Operator. As previously noted, cyclists have parked in this location for many years, without attendants issuing a PCN to drivers parked there. I have seen cycles parked there since 2015 and parking attendants walking past without issuing PCNs to cyclists. Then an attendant issues a PCN with no notice. Subsequently, cycles continue to park in the motorcycle parking area without receiving PCNs. Therefore the Operator changed the conditions without notification.

There was:

1. no change in signage to inform drivers of the change in conditions and

2. as the changes are material (a new charge of £100 per day) there was no grace period.

I therefore require the Operator to provide evidence of the notice given to drivers of the changes to the status of this location, providing details of changes to boundary markings, signage and other notification. I would also like an explanation as to why the Operator did not provide a grace period to all cyclists.

6: Excessive and inconsistent charges applied in contravention of the Consumer Rights Act 2015 (CRA 2015)

Section 62 of the CRA 2015 sets out a requirement for contract terms and notices to be fair:

(1)An unfair term of a consumer contract is not binding on the consumer. (2)An unfair consumer notice is not binding on the consumer. (3)This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.

Schedule 2: Defines consumer contract terms which may be regarded as unfair:

’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’

''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

I assert that the charges issued by the Operator are unfair in the circumstances because they are disproportionately high, and as such contravene the CRA 2015. This does not mean that the charges as set out in the terms and conditions are unfair per se, but are unfair in the circumstances where I was charged, due to the application of the charges in these circumstances.

In addition, the charges contravene the Consumer Protection from Unfair Trading Regulations 2008 because of the inconsistent way the charges were applied. the relevant sections are:

’’Prohibition of unfair commercial practices’’: 3.—

(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

(3) A commercial practice is unfair if—

(a) it contravenes the requirements of professional diligence; and

(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...

(4) A commercial practice is unfair if—

(a) it is a misleading action under the provisions of regulation 5;

(b) it is a misleading omission under the provisions of regulation 6; ‘’

The charges were unfair for two reasons:

1. Disproportionately high charging: In the week in question when this PCN was issued, my vehicle received 3 £100 PCN’s on 3 separate days. Furthermore, these were all issued without driver notification at the time and without any notification to me the keeper because the first PCN did not arrive in the post until after the third one was issued. The total charge was £300 which is a very high change to charging for parking in the location. I assert that this is a disproportionately high unfair charge, in contravention of the CRA 2015.

2. Inconsistent charging contravenes the requirements of professional diligence: Different charges applied to different people for the same service. Other cycles parked in the location have not received PCN’s before or afterwards, and NCP are currently not issued PCNs for parking there, as noted by the motorcycles still parking in that location in the weeks after the PCNs were issued on my vehicle. It therefore follows that charges were being issued to some customers and not others. The inconsistent issuing of charges is arbitrary and in contravention of the Unfair Trading Regulations 2008.

As a result of these charges it is clear that the payment being claimed by NCP is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

In addition the charges were made without notice, and the same guidance states that...”terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

And...”Unfair terms are not enforceable against the consumer.”

I therefore assert that the charge is not enforceable.

It is the Operator's responsibility to demonstrate that the charges were fair. As a result, I require the Operator to explain how such a large jump in charges of £300 without notice for the same service is deemed to be fair.

In addition, I require the Operator to explain how the charging of some drivers but not others for the same service is fair, and to demonstrate what differentiates my vehicle to other vehicles parked in the location. I demand NCP produce witness statements from other parking attendants as to why they do not issue PCNs for this location, and the number of patrols where PCNs were not issued for this location. I believe that this will show that NCP employees do not normally issue PCN’s for this location, and I am being disproportionately charged when other cyclists who still park in the location are not.

7: The charge does not represent a genuine pre-estimate of loss because the charges for a cycle are the same as for a car, and not applied to other cycles.

the PCN charges for motorcycles are the same for 4 wheeled vehicles. However, motorcycles take up much less space and park in locations reserved for cycles. It therefore follows that the payment amount being used in the PCN is arbitrary and not a genuine pre-estimate of loss.

Furthermore, the Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. The Operator did not lose revenue by the motorcycle being situated in the location when the PCN was issued. In addition, other cycles are not being issued with these charges for parking in the same location. There is therefore no genuine pre-estimate of loss.

I require NCP to explain how they calculated the pre-estimate of loss for motorcycles and how they came to the conclusion that this would be the same as for 4 wheeled vehicles.

In addition, I require NCP to explain how they calculated loss for my cycle, and how this differs for other cycles which they have not charged, and still do not charge, since the charges were issued for my vehicle.

In summary the charges issued by NCP are arbitrary, excessive, unfair and unenforceable. They were also applied without notice, for a location that NCP have never issued PCNs for before.

I therefore respectfully request that POPLA uphold my appeal and instruct NCP to cancel the charge.

Yours faithfully