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  • FIRST POST
    • speed1283
    • By speed1283 14th Oct 18, 4:55 PM
    • 5Posts
    • 1Thanks
    speed1283
    PCN Appeal Newbies Template sign off
    • #1
    • 14th Oct 18, 4:55 PM
    PCN Appeal Newbies Template sign off 14th Oct 18 at 4:55 PM
    Hi,

    Apologies in advance for what is probably a silly question, I received a train station NCP PNR the other week but then having been away for a few weeks have only started to look into paying the fine (or Invoice) or not. I am intending to wait until day 26 as per the Newbies thread and then submit an appeal using the Blue text template from the Newbies section.

    However I am slightly confused as to whether I sign off the template using my actual name and address or whether I simply state "The Keeper" and then address? Or is it fine to put my name so long as in my wording I do not admit being the driver?

    Many thanks
Page 1
    • Redx
    • By Redx 14th Oct 18, 5:03 PM
    • 20,268 Posts
    • 25,671 Thanks
    Redx
    • #2
    • 14th Oct 18, 5:03 PM
    • #2
    • 14th Oct 18, 5:03 PM
    it is an appeal from the keeper so give them the pcn ref, the VRM and the keepers details (name and address for service of papers)


    a KEEPER is not liable for a train station notice so after 6 months it times out, so no point in a keeper paying it and a keeper should not name the driver nor the owner of the vehicle either


    do not alter the template at all
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • speed1283
    • By speed1283 7th Nov 18, 7:39 PM
    • 5 Posts
    • 1 Thanks
    speed1283
    • #3
    • 7th Nov 18, 7:39 PM
    • #3
    • 7th Nov 18, 7:39 PM
    HI Redx,

    My apologies for not responding sooner, I was away on holiday for a while and didn't think about this until I returned and to be honest there was nothing to report at the time. So, using the Newbies template I raised an appeal via NCP's website on day 26. Today I received an email response from NCP rejecting my appeal, the wording is along the following lines:

    Thank you for your recent correspondence regarding the above notice number. We have considered the case carefully and have decided to reject your appeal on the following grounds;

    The parking attendant observed and recorded that the vehicle was not parked wholly within the confines of a marked bay. The Terms and Conditions of which our services are provided are clearly displayed on entrance and throughout our facilities, including the requirement for all motorists to park within the markings of a designated bay.

    Your vehicle was recorded as parked outside of a bay. It is clearly signposted that all vehicles must be parked wholly within one designated marked bay at all times for health and safety reasons and therefore would not warrant us in cancelling the notice.
    Please note, to date you not have provided a serviceable address for the driver of the vehicle, therefore if this is not provided you, as the registered keeper of the vehicle, are liable for the Parking Charge Notice.

    To view the photographic evidence please log-in via ncp.co.uk which is the same location as you made your appeal from. If you are unable to view the evidence, please contact us.

    With regards to your withdrawal of consent to use your personal data in order to process this PCN (Section 10) unfortunately we are unable to grant your request. Please refer to SCHEDULE 2 of the Data Protection Act 1998 legislation which allows the continuation of data processing when the customer has entered into a contract with the supplier. When parking your vehicle within the car park you agreed to be bound to the contract displayed on the signage throughout the site.

    SCHEDULE 2 Conditions relevant for purposes of the first principle: processing of any personal data
    1The data subject has given his consent to the processing.
    2The processing is necessary-
    (a)for the performance of a contract to which the data subject is a party, or
    (b)for the taking of steps at the request of the data subject with a view to entering into a contract.

    We are confident that all signage and the PCN are compliant with all industry standards and to the British Parking Association's code of practice to which we subscribe.
    You now have the following options;
    Pay the Parking Charge Notice at the discounted amount of £60.00 within 14 days. Please note that after this time the Parking Charge Notice will increase to the full charge of £100.00.
    Payment can be made:

    * Online, by visiting ncp.co.uk
    * By sending a cheque or postal order, made payable to National Car Parks Ltd to: National Car Parks Ltd. Notice Processing, PO Box 839, Northampton, NN4 4AL.
    * By Debit or Credit card (except American Express). Please call 0345 452 7780 and have your card details and the information held in this letter to hand.

    Alternatively, you can make an appeal to POPLA - The Independent Appeals Service. If you wish to make an appeal to POPLA the forms are available on the website at popla.co.uk The verification code you will need in order to appeal to the Independent Appeals Service is XXXXXXXXXXX. Please note that if you opt for independent arbitration of your case you will lose your opportunity to pay the discounted offer and the full amount of the parking charge will apply. Your appeal to POPLA must be made within 28 days of the date of this letter, any appeals to POPLA made after the 28 days will not be assessed. The independent adjudicator is unable to waive the parking notice because of mitigating circumstances and a decision will be based on facts and evidence only. If you have any trouble in appealing or cannot access the website please contact us on 01604 625 622.

    By law we are also required to inform you that Ombudsman Services ombudsman-services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

    If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.
    Yours sincerely,
    Notice Processing Team


    Is this their standard response? I was surprised by the level of detail in it to be honest and that they refer to an email as a 'letter', that being said I have a POPLA code so assume I need to raise an appeal via POPLA now?

    I have not yet received anything formal by post from NCP, so no NTK yet (now on day 34-35).

    Regards
    • Coupon-mad
    • By Coupon-mad 7th Nov 18, 7:50 PM
    • 64,896 Posts
    • 77,451 Thanks
    Coupon-mad
    • #4
    • 7th Nov 18, 7:50 PM
    • #4
    • 7th Nov 18, 7:50 PM
    Is this their standard response?
    Yes, so now go and win at POPLA by copying any other, recent, NCP railway POPLA appeal thread that talks about no NTK, and hold off from submitting the POPLA appeal PDF until day 56 (as long as that dos not take you past day 32 from the rejection letter!).

    You will win as long as the driver is not identified or implied, hence why templates are used.

    So, search for the keywords in bold (advanced search/this forum only, show RESULTS AS POSTS not 'threads').
    • speed1283
    • By speed1283 8th Nov 18, 6:22 PM
    • 5 Posts
    • 1 Thanks
    speed1283
    • #5
    • 8th Nov 18, 6:22 PM
    • #5
    • 8th Nov 18, 6:22 PM
    Thanks,

    I'll do some searches later. Presumably however, if I do receive a NTK before the 56 day window then this alters the POPLA appeal wording somewhat?

    The PCN was issued on 3/10/18 so I figure if I don't receive anything in the post by 28/11/18 then the No NTK applies.

    Regards
    • Coupon-mad
    • By Coupon-mad 10th Nov 18, 9:01 PM
    • 64,896 Posts
    • 77,451 Thanks
    Coupon-mad
    • #6
    • 10th Nov 18, 9:01 PM
    • #6
    • 10th Nov 18, 9:01 PM
    Yes - but @Swethak, please delete your question, which is unfair to this thread starter and 'hijacks' their thread, whether you realised it or not, that's not allowed.

    You will need your own new thread BUT NOT YET. You will need us when they sue you. We win 99% of cases and there is NO RISK.

    Last edited by Coupon-mad; 18-11-2018 at 7:12 PM.
    • Swethak
    • By Swethak 11th Nov 18, 12:13 AM
    • 1 Posts
    • 0 Thanks
    Swethak
    • #7
    • 11th Nov 18, 12:13 AM
    • #7
    • 11th Nov 18, 12:13 AM
    Thanks for the Reply .
    My apologies for posting my question here .
    I have deleted my question .
    Thanks
    • speed1283
    • By speed1283 18th Nov 18, 10:15 AM
    • 5 Posts
    • 1 Thanks
    speed1283
    • #8
    • 18th Nov 18, 10:15 AM
    • #8
    • 18th Nov 18, 10:15 AM
    Morning All, as It's less than two weeks until the NTK deadline passes I thought I would have a go at drafting my POPLA appeal. May I ask if any experts could give it a quick glance and let me know if should change anything?

    I am unsure of the wording of point 5 and also whether the charge should be the full £100 or the discounted £60.

    Here is the POPLA appeal:


    Dear POPLA,
    PCN Number: xxx
    POPLA Verification Code: xxx

    I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £100 parking charge notice (PCN) issued by NCP.

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

    1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
    2. Railway Land is Not ‘Relevant Land’
    3. No standing or authority to neither pursue charges nor form contracts with drivers.
    4. Unclear and non-compliant signage, forming no contract with drivers.
    5. Irrelevant Case Law

    1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.

    To date I have not been issued a Notice to Keeper (NTK) by NCP. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

    The alleged infringement occurred on XX/XX/2018 and from my understanding the NTK was required to reach me by XX/XX/2018 . As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.

    The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

    2. Railway Land is Not ‘Relevant Land’

    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

    3. No standing or authority to pursue charges nor form contracts with drivers

    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, NCP must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put NCP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between NCP and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to NCP.

    Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

    “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”.

    Section 7.3 states: “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.''

    I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a TOC gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay NCP (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce bylaws themselves, only the Train Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). NCP have no standing to enforce 'parking charges' or penalties of any description in any court.

    I put NCP to strict proof of compliance with all of the above requirements

    4. Unclear and non-compliant signage, forming no contract with drivers.

    The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

    ''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

    Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    Photo

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    Photo

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    An example of the signage in question is shown below.

    Photo

    In the location in question, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    I submit that the signage intended to notify the driver prior to entering the car park is poorly positioned and set back too far from the road and station entrance, indeed if approaching the station whilst travelling North West along Newport Road the sign is barely visible to the driver, (refer to the image below which highlights this point), the position and angle of the sign is such that it cannot be seen by the driver.

    Photo

    Even upon entering the station, the sign is positioned in such a manner that it is not sufficiently visible to the driver. Refer to the image below which presents a driver’s view of upon entering the station, the driver would be required to turn his or her head greater than 90 degrees to even try and view the sign (which is barely visible on the left hand side of the image).

    Photo

    An alternative view (below) highlights further just how far back the sign is positioned relative to the entrance road, and how the sign is not visible to cars turning left from Newport road into the station entrance. Furthermore the image below shows that even upon entering the station, the driver would be required to stop whilst still partially on the carriageway AND rotate his/her head greater than 90 degrees in order to attempt the read the sign, however the distance of the sign from the carriageway and station entrance is such that the wording will not be legible.

    Photo

    The only sign that is highly visible to the driver upon entering the station is shown in the image below, as can be seen there is no obvious notice in regard to parking charges other than a lost ticket charge, additionally the terms and conditions text is illegible given its small font.

    Photo

    I also submit that the signage presented to the driver after he/she has parked their car and are walking towards the station after exiting the car park is also non compliant, with extremely small font which is illegible and with no obvious charge notice wording. This is demonstrated in the photo below.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    link

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    Link
    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

    ...and the same chart is reproduced here:

    Link

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    Link

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    5) Irrelevant Case Law.

    Neither irrelevant case law (ParkingEye v Beavis, which is not applicable) nor the remedy under the Railway Byelaws can support or provide a rationale for this disproportionate private parking charge.

    (a) It is believed that this land is covered by Railway Byelaws and I put NCP to strict proof to the contrary. As such, the remedy for any breach is an actual 'penalty' as defined in those byelaws. Prescribed statutory rules (not the BPA CoP) apply to penalties and the offer of parking is made by the Train Operating Company (TOC) or landowner, only by virtue of the byelaws, in the same way that any offence can only flow from defined restrictions within those byelaws. A parking offence can only be pursued in the Magistrates Court by the landowner/TOC themselves which is the only true legitimate interest on this land which is under statutory control.

    The car park is already offered/controlled by the TOC which has the lawful remedy of a byelaws penalty open to them. There is no 'legitimate' interest in NCP re-offering the spaces under wholly different terms and charging £100 for their own profit. Two separate sets of terms, obligations and remedies relating to the same parking behaviour cannot coexist; the land falls under byelaws so there is no scope for what seems to be potentially, a bribe: 'pay us £100 and we won't tell the TOC to pursue the matter under the applicable byelaws'.

    Where there is any ambiguity regarding duplication or confusion in contractual or statutory terms/charges or obligations, the interpretation which most favours a consumer must prevail. In this case the interpretation which most favours a registered keeper appellant, is that NCP have no 'legitimate interest' in imposing their own 'charge' instead of a byelaws penalty, which only applies to an established driver.

    NCP or the TOC should have identified the alleged offender and the TOC should then have followed their own byelaws procedures; their only legitimate interest in the matter, if they believed there was a case against the driver that day.

    (b) NCP seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (NCP and ParkingEye) described the sum as a 'parking charge'.

    There the similarities end. The Beavis case has no application here, except in favour of my case as appellant.

    That decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

    The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals

    As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty.

    But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.
    There is no commercial justification for a TOC's agent to fine genuine, paying railway users who have paid and displayed, for parking in unmarked, clear areas which are certainly not clearly marked to communicate 'no parking'. The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty because it is just that, punitive, with no other compelling commercial rationale.

    In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will RARELY extend beyond the usual penalty rule (Lord Dunedin's four tests):

    ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties were negotiating at arm’s length on the basis of legal advice and had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

    POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both. If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing a breach but remain unjustified by way of any other legitimate commercial interests.
    • The Deep
    • By The Deep 18th Nov 18, 11:02 AM
    • 10,950 Posts
    • 10,912 Thanks
    The Deep
    • #9
    • 18th Nov 18, 11:02 AM
    • #9
    • 18th Nov 18, 11:02 AM
    I suspect that a simple appeal on the fact that this land is covered by bye-laws would achieved the same result.

    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised crime.

    Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by in the not too distant future..
    You never know how far you can go until you go too far.
    • waamo
    • By waamo 18th Nov 18, 12:06 PM
    • 4,860 Posts
    • 6,299 Thanks
    waamo
    Points 1 and 2 should win it for you. They are the most important.
    This space for hire.
    • Fruitcake
    • By Fruitcake 18th Nov 18, 12:41 PM
    • 38,003 Posts
    • 85,338 Thanks
    Fruitcake
    It will be interesting to see what the scammers and PoPLA come up following the DfT response to PoPLA about private parking charges being applicable where Byelaws apply.

    No doubt they will try to wheedle their way around things, especially Not Relevant Land appeal points.

    In the OP's case here, no NTK should still be a winning point though.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • speed1283
    • By speed1283 18th Nov 18, 6:40 PM
    • 5 Posts
    • 1 Thanks
    speed1283
    Thanks all,

    I think I have got some pretty good points in regard to the signage too, although I could't figure out a way of posting my PDF version with photos.

    I assume even if I do receive my NTK within the 56 days I have to amend the wording and will have a lower chance of winning the appeal, the 56 days seem to be taking an age!

    I did read a news story the other day suggesting that the number of DVLA records that private parking firms were requesting had hit new records which suggests they are not all just giving up.

    Regards
    • Fruitcake
    • By Fruitcake 18th Nov 18, 7:06 PM
    • 38,003 Posts
    • 85,338 Thanks
    Fruitcake
    Yes you would need to amend your appeal wording if you are unlucky enough to get a NTK before day 56.

    Newbies can't post links or pictures, but you just need to ensure your images are embedded in the pdf rather than links. That way the assessor is forced to look at them.

    As for the DVLA figures, these have been rising year on year for many years now.
    Last edited by Fruitcake; 18-11-2018 at 7:08 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 18th Nov 18, 7:14 PM
    • 64,896 Posts
    • 77,451 Thanks
    Coupon-mad
    I did read a news story the other day suggesting that the number of DVLA records that private parking firms were requesting had hit new records which suggests they are not all just giving up.
    Originally posted by speed1283
    No, it just suggests they are all jumping on the bandwagon and getting what we wold consider to be a 'criminal' amount of data, sold by the DVLA (with no consumer opt out allowed) to an industry that includes BPA and IPC members with known criminal records.
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