PCN from NPE - won

[veghead]

Hello,
I am looking to appeal a NTK from NPE for an alleged "Unauthorised parking" incident around a week ago by somebody driving my vehicle.

Given the recent Bevis V PE case what would be my best option? Before I would have emailed a standard appea on the basis of the charge being punitive rather than a estimate of costs letter and awaited POPLA code. Would this still be the best option or are the "standard template" letters now obsolete?

Many Thanks! :tongue2:

[mystery1]

Re: PCN from NPE

Templates are ok if you have a long term goal of getting a popla code and have a winning argument. It remains to be seen if the old arguments will still win at popla hence i like to attack PoFA compliance now as well. Hopefully some results will filter through soon.

Post up the NTK.

M1

[veghead]

Re: PCN from NPE

Here is the NTK. There is further writing on the back if you need that too?

Thanks again.

[mystery1]

Re: PCN from NPE

Well what a shock.

http://www.legislation.gov.uk/ukpga/...dule/4/enacted

9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)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 within the relevant period.
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address
(5)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.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.







The notice to keeper does not specify a period of parking. The notice merely indicates a time The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1


C, D, E & I have not been fulfilled.


You can add all,none or a summary of that to any template but make sure the 14 days are up 1st so they have no time to send a compliant NTK. If Popla is needed then that must be used as it's pretty much a slam dunk win.

M1

[veghead]

Re: PCN from NPE

Would this be the same if the vehicle was parked in a space that was just unauthorised for parking? Without having seen the signs myself I can't say if they were time limited or having just been parking prohibited? I am trying to get the driver to provide pictures of the signs however they are proving to be most unhelpful.

[mystery1]

Re: PCN from NPE

The actual circumstances are somewhat irrelevant to the Keeper in that Keeper liability is a statutory provision. That statutory provision has requirements that cannot be ignored. They have failed. It is even more helpful if the circumstances of the actual parking event provide even further defence points particularly in a case where the keeper finds it difficult to deny driving. As you won't find it hard to deny driving the keeper liability failures are a major hurdle for them.

Of course if the driver is being an arse you could just name them and let them deal with it themselves but they will have a much harder time defending against the charges.

M1

[veghead]

Re: PCN from NPE

That is brilliant. Thank you so much for your help. I'll work that into the appeal letter and email it over on the last of the 14 days.

TO be fair to the driver they do work too. Just I'm on nights this week so have the time to deal with it.

If it goes to POPLA do I start another thread? If I don't use something on my initial appeal can I then use it if it goes to POPLA?

[mystery1]

Re: PCN from NPE

I prefer it all on one thread yes.

My M.O. is usually 4/5 lines for the initial appeal and significantly more for a popla appeal. Essentially the primary basis of most initial appeals is to get a popla code. Only when there could be something that will mean a cancellation would i include something would i go beyond the driver saw no signs. Some companies will cancel where people are customers particularly if they have decent send receipts.

No/faulty keeper liability hasn't met with an initial cancellation yet as far as i know but should win at popla.

M1

[veghead]

Re: PCN from NPE

Well, as I expected my appeal has been rejected. I sent my appeal, via email on the 19th of May. The next correspondence received was an email from NPE appeals service on the 8th of June (More than 14 days? If my maths is correct?) saying that my appeal was rejected and giving me a POPLA code.

I don't have access to a printer currently but I could maybe PM you un edited copies if that is possible?

Some salient points of the letter are:-
1- The above location is private property and there are advertised terms and conditions which the driver is expected to abide by in order to obtain permission to park.
2- There is a separate entrance sign at this location to advise that the restrictions for parking can be found on signage therein.
3- The signage in this location states that parking is only permitted for permit holders and vehicles that have been added to our database.

4- The spaces at the back of the shops are not part of the shoppers’ car park which offers 2 hours free parking.
5- As your vehicle was not displaying a valid permit and is not registered on our database it was correctly issued a parking charge.

6- Following the judgement of the Court of Appeal in ParkingEye v Beavis on 23rd April 2015, we can confirm that the parking charge is considered to be a deterrent to parking in a restricted area and the charge is not extravagant or unconscionable.
7- The parking charge made is not a penalty and the issue of genuine pre-estimate of loss is not relevant.
8- As stated on the Parking Charge Notice, Notice To Keeper, Norfolk Parking Enforcement are the creditor.
9- Please also be advised that a grace period is not required when parking in a private/permit only bay, the only period of grace required is the time to read the signage.



It then gives options for payment and their normal petty threats.

In light of the recent PE court case what do you suggest is the best next step to take?

Many thanks

[mystery1]

Re: PCN from NPE

Appeal to popla. I've 3 to do so will do it asap.

M1

[mystery1]

Re: PCN from NPE

I wish to appeal this parking charge on the following grounds.


1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.


2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.


3. NPE do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.


4. NPE have failed to adhere to the BPA code of practice.


5. Unreliable, unsynchronised and non-compliant ANPR system.

6. Keeper liability.


1.The charges are penalties.


The charges are represented as a failure to pay which is disputed. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"


£100 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for a small hourly sum. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The longer a driver stays in the various shops then the more profit is made. £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 cannot be so as the figures quoted include business costs.


I require NPE to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. NPE cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.


According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''


It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.




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


I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £100.


As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.




3.. Contract with landowner - no locus standi


NPE do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that NPE has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow NPE to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.




In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.




So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between NPE and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1



I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.




It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."




The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."




In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.




4. Failure to adhere to the BPA code of practice.


The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.


The BPA Code of Practice states under appendix B, entrance signage:




“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”


For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.






When with reference to the BCP Code of Practice, it states:


"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"


5. ANPR ACCURACY


This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator 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 ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form 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.




So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.


6. Keeper liability.

The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.

Right to claim unpaid parking charges from keeper of vehicle


4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(b)has given a notice to keeper in accordance with paragraph 9.


9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)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.
(5)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.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1

Sections C, D, E & I has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.



M1

[veghead]

Re: PCN from NPE

Thank you so much. I'm so glad there are people that are so knowledgeable about this around to stop these people getting more money out of people.

Also, I received a copy of their contract with the land holder.

At the bottom it says

NPE provides a 'PhotoPark System' which includes training, copy of BPA code of practice and a digital camera, to enable the Client to capture images for the remote issue of PCN's. NPE may request information on the registered keepers details from the DVLA for 'PhotoPark' or should a PCN remain unpaid. The landowner has given NPE Ltd the authority to take legal action to recover charges due from drivers charged for unauthorised parking. This agreement is on continual rolling basis and can be withdrawn by the client at any time.

Does this mean that NPE aren't even allowed to use the CCTV camera style system at this site. I know on the BPA website they aren't allowed to use ANPR. But I don't know if that is the same as the CCTV system?

[mystery1]

Re: PCN from NPE

Wouldn't worry about it.

M1

[veghead]

Re: PCN from NPE

[MENTION=5354]mystery1[/MENTION]

Thank you so much for all your help. Finally got a response from POPLA today saying there had been no contest as NPE hadn't submitted anything, So they approved my appeal and my charge should be cancelled immediately. Needless to say I'm over the moon and owe you a drink!