QDR solicitors threats following a PCN

[SH512]

I received a Parking Charge Notice from NCP early Jan, relating to parking in Dec at Rayners Lane tube station car park. We'd not parked there for a few years, it had pay and display last time.. When parking we noticed no machines or sign about paying. It was a Sunday, and I thought that (from years before) it was free anyway on Sunday, so though no more about it, not seeing any signs when leaving on foot, or later, in the dark by car.

Advise online was to ignore the notice, then got a reminder, still ignored, and then a letter from ZZPS, and now one from QDR.

When the original PCN arrived, I checked online, and discovered there was a £1.70 fee for Sunday parking - which we would of course have paid had we know/seen any signs. The initial demand was for £100, £60 if paid quickly. This seemed utterly disproportionate, at over 50 times the parking fee.
ZZPS pushed this up to £170 and QDR are now asking for £182.

I've attached photos taken from google. The first 3 show the entrance, down an alley. I've only just noticed now, that there is a sign on top of the garage to the left of the entrance, but this is in no way visible when driving. The second is at the end of the alley, and the 3rd is just as you pass the camera. No signs to say "you are entering a controlled car park", "please ensure you pay" or anything. You CAN just see the pay station to the left, but it's obscured by a telegraph post. 4th photo is about where we parked, the ONLY sign around there was to say there was CCTV ! 5th photo is on the way out, except it was dark when we left, and I don't see much lighting about, and in any case no signs. No "Have you paid ?" that you would normally expect at a paid car park.
Google maps: http://www.google.co.uk/maps/@51.574...7i16384!8i8192

The ZZPS mentioned the Beavis case, obviously not applicable here as it's paid parking. QDR letter says they will "look to obtain a CCJ" if I do not pay, or contact them to discuss.

I just tried to enter an appeal via the NCP website, but it was rejected saying that 'this is now with ZZPS'. I am thinking of writing to all 3 companies, pointing out the above lack of signage, disproportionate charge, and not covered by "Beavis Vs ParkingEye", and offering to pay a nominal £17 (10 times the original parking fee, a reasonable penalty ?)

Any advice appreciated, thanks Nigel

[charitynjw]

Hi & welcome to LB.

ZZPS can safely be ignored.
They are (legally) not party to the alleged contract between the driver & the parking co & so are not allowed to interfere.
Google privity of contract.

If this is railway/TfL land it could well be governed via bye laws.
If so, NCP should not be issuing parking charges as it would not be 'relevant land' for the purposes of the Protection of Freedoms Act 2012 Schedule 4.

https://tfl.gov.uk/corporate/terms-a...itions/byelaws

[SH512]

Thanks for the reply, but it is an NCP run car park (presumably engaged by tfl), and they have clearly engaged ZZPS and QDR to act on their behalf. I don't see anything in the link you sent that refers to 'relevant land'

I am much more interested in opinion on the lack of signage at the car park.

[charitynjw]

Thanks for the reply, but it is an NCP run car park (presumably engaged by tfl), and they have clearly engaged ZZPS and QDR to act on their behalf. I don't see anything in the link you sent that refers to 'relevant land'

I am much more interested in opinion on the lack of signage at the car park.

3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—

(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(b)a parking place which is provided or controlled by a traffic authority;

(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

(2)In sub-paragraph (1)(b)—

“parking place” has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984;

“traffic authority” means each of the following—
(a)

the Secretary of State;
(b)

the Welsh Ministers;
(c)

Transport for London;
(d)

the Common Council of the City of London;
(e)

the council of a county, county borough, London borough or district;
(f)

a parish or community council;
(g)

the Council of the Isles of Scilly.

(3)For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

(4)In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in—

(a)any Act (including a local or private Act), whenever passed; or

(b)any subordinate legislation, whenever made,

and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.

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

[SH512]

Thanks, but I'm not a lawyer, and I really don't understand the relevance of this ? Are you trying to say that they can't claim it's a car park with charges ? Sounds unlikely !

[ostell]

If it's land that is subject to byelaws then they cannot use Schedule 4 of The Protection of Freedoms Act 2012 to transfer liability for the alleged debt from the driver to the keeper. If they don't know the driver then what are they going to do? There is no legal requirement to name the driver.

Looking at Google Maps it would seem that there are pleanty of signs and machines to pay. On the left on the way in.

Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

The car park appears to be not relevant land as defined by paragraph 3 of Schedule 4 of The Protection Of Freedoms Act 2012, being subject to local authority control. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Yours etc

But then you've already appealed

Keep a ping pong of communication with them till 6 months is up and they can't then take any byelaw action. Not long to go.

[SH512]

Many thanks, explanation much appreciated

[SH512]

Hi again,

just checked up more on this, do we know that it's subject to byelaws, and if it is, how is does that invalidate the Sch 4 use ? NCP run most of the tfl car parks, so surely they should know this ? Or are they just trying it on ? Dosn't seem a sustainable business if they can't actually fine anyone who doesn't pay in their car parks ?

https://www.gov.uk/government/public...arking-charges says "Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded" so surely I need to find out if that car park is subject to byelaws before claiming that in a letter ?

Re the signage, there's none on the camera posts, by the parking bays, entrance or exit, just the bits by the machine, which is (was) easily missed. Are there any standards at all ?

[charitynjw]

Hi again,

just checked up more on this, do we know that it's subject to byelaws, and if it is, how is does that invalidate the Sch 4 use ? NCP run most of the tfl car parks, so surely they should know this ? Or are they just trying it on ? Dosn't seem a sustainable business if they can't actually fine anyone who doesn't pay in their car parks ?
You would be surprised if you knew how many instances of this very same situation occur. (Private parking co's ticketing where they ought not to do so.)
My local authority tried to do so, was 'caught out', & has had to rip out ANPR cameras from multiple sites, put back the pay & display machines that were formerly being used & re-introduce penalty charges, not (private) parking charges.
At the cost of over £1million.....which of course came out of the pot funded largely by council tax/ratepayers.

https://www.gov.uk/government/public...arking-charges says "Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded" so surely I need to find out if that car park is subject to byelaws before claiming that in a letter ?
The onus is on them to show that it is relevant land, but I always follow it up by checking as far as I possibly can. It can be a bit like pulling teeth...after all, those responsible will duck & dive before being made to admit that what they may be doing is not legally correct.

Re the signage, there's none on the camera posts, by the parking bays, entrance or exit, just the bits by the machine, which is (was) easily missed. Are there any standards at all ?
Yes....check the relevant Code of Practice for the parking co's trade association.

####

[SH512]

Many thanks for all the info, one last question... I'm going to write, not email or phone, both to not give more them access to those channels, but also to document my response, should I write to QDR, ZPS, NCP or all of them ? Will writing make much difference over just ignoring the letters ? I'm over 4 months since the date of the parking, is 6 months a definite cut off ?

[charitynjw]

Many thanks for all the info, one last question... I'm going to write, not email or phone, both to not give more them access to those channels, but also to document my response, should I write to QDR, ZPS, NCP or all of them ? Will writing make much difference over just ignoring the letters ? I'm over 4 months since the date of the parking, is 6 months a definite cut off ?

If it were me I'd ignore ZZPS.
Deal with the engineer, not the oily rag!
The sols would be the way to go, but you can copy the parking co in if you want to.
6 months, if it turns out that a penalty charge should have been issued

Just a btw heads-up.
In one case just recently, the sols/parking co wrote back to say that the bye laws had been revoked.
A bit more digging showed that yes, they were....months after the PCN was issued (& probably as a direct result of the challenge!)

[SH512]

Yes, that's the risk, if they can revoke the byelaws on all the car park land, why would they not do that. Perhaps they already did before the PCN was issued, how could I check ?

Personally I'd prefer to go the 'lack of signage' route. That if fact was why no payment was made at the time, we really didn't see any signs !

NCP are listed as "BPA Approved Operators" and I found these rules: https://www.britishparking.co.uk/wri...,_Feb_2014.pdf

"Section 18 signs...
entrance signs play an important part in establishing a parking contract ...Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. "

--- the entrance sign for this car park is some 8 feet up, on top of the neighbouring house's garage, and is even set back. The google car photos attached show this. The camera is over 6 feet up, so from normal driving position this sign is not visible at all.

"Specific parking-terms signage ... You must place signs containing the specific parking terms throughout the site..." "Signs must be conspicuous"

--- there are none whatsoever. The only signs are about there being CCTV, and the electric charging points. https://www.google.co.uk/maps/@51.57...7i16384!8i8192

I really can't understand WHY they have not put signs up, if they had, we would have seen them, and made sure we checked and paid, and no sign at the exit to say "have you paid"

[charitynjw]

Personally I'd prefer to go the 'lack of signage' route. That if fact was why no payment was made at the time, we really didn't see any signs !

It doesn't have to be either or.....you can do both.
I always chuck everything possible into the mix.
(Even the kitchen sink if I can get away with it!)

[SH512]

Hi, I've come across this FOI request reply: https://www.whatdotheyknow.com/reque...coming-1309257

in particular:
"3. Is the car park legally covered by railway Byelaw?

Rail bylaws apply, however enforcement is carried out under Protection of
Freedoms Act. This is not inconsistent with a number of other TOCs and a
decision must have been made historically to do so for London Underground.
At this time, the belief was that, with Rail Bylaws as ‘primary’
legislation, the government may enact that these would apply and that POFA
would no longer be applicable in Rail car parks; with any enforcement
activity under Bylaw from that time. There has been no legislation on
this, POPLA are still dealing with these cases and any PCN issued under
POFA is valid. The Terms and conditions are displayed at the car parks.
"
So I'm unclear what effect this has.

Also, regarding the QDR Sol letter dated 23/4/2019 - referring to parking back on 23/12/2018 (attached), they are using quite 'gentle' language, e.g "Failure[to pay] may result in ..." "This may mean they [go for CCJ]"

On https://forums.moneysavingexpert.com....php?t=5657224 it's claimed that ZZPS may be sending these out using QDR headed paper ! Is this legal ?

The first line where they say "we have been instructed by ZZPS..." but I've read in several places "A debt collector cannot instruct a solicitor in regard to an alleged debt 'owed' to a third party (PP)."

Do you think I should still send the letter re the byelaws (with or without the signage and other issues), or just wait and see what they do next ? This QDR letter doesn't seem to be a "Letter Before Claim" ? Should I wait for that, or contact them now to possibly delay/deter at this point ?

Many thanks and appreciation in advance for any reply/help

[charitynjw]

Imho, on the subject of bye laws, POPLA have just 'kicked the can down the road' (ie they have decided not to get involved, & to let a 'proper' court decide.)
Whether the possibility that they depend on their members' (or at least BPA members) money for their existence has anything to do with that decision, I'll leave that with you to draw your own conclusions.

That QDR letter seems to be a generic letter with your details added.
It's possible that it has been untouched by human hands (except yours, of course!)

& I'm not convinced, given the circumstances, that Sara Thomas's 'absolute exemption' (FOIA Request) re 3rd party disclosure is entirely correct.

(3)The listed GDPR provisions do not apply to personal data where disclosure of the data—

(a)is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),

(b)is necessary for the purpose of obtaining legal advice, or

(c)is otherwise necessary for the purposes of establishing, exercising or defending legal rights,

to the extent that the application of those provisions would prevent the controller from making the disclosure

http://www.legislation.gov.uk/ukpga/...dule/2/enacted