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NCP - PCN in Pay & Display using ANPR
sakhtolo
post Fri, 15 Nov 2019 - 17:48
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Hi, I'm hoping you guys will be able to help advise me. I received a Parking Charge Notice to Keeper on 19/10/2019 for a parking incident on 15/09/2019. The reason NCP provided is:

"Parking longer than the time paid for and liability for the same having been brought to the attention of the driver by clear signage in and around the site (Birmingham St Judes) at the time of parking. The breach is relating to the period of parking was recorded by an approved ANPR camera."

I challenged this on 23/10/2019 through their website by responding that I did pay for parking on that day and provided evidence of my credit card statement.

On 05/11/2019 I received a response by email:

"Issue date: 17/10/2019
Thank you for your appeal received on 23/10/2019 regarding the above detailed Parking Charge Notice, we have reviewed your case and considered the comments you have made. Your appeal has also been considered in conjunction with the evidence gathered by our Automatic Number Plate Recognition cameras, which record your entry and exit times. Our records show the notice was correctly issued as your vehicle was parked in breach of the Terms and Conditions of Parking. We can confirm that the payment you made of £8.00 covered your parking period for 3 hours. Your parking session was for a total of 3 hours and 15 minutes."

NCP have provided photographic evidence showing my car entering the car park at 17:18 and departing at 20:34.

My issue is that this is a pay and display car park. I had to wait between 5-10 minutes in a queue at the payment machine to buy the ticket and when departing I took a phone call in my car before I drove out. I thought I would be ok because I am in the car if a parking attendant comes to ticket me then I will leave. The car park operates like a pay and display but then they use ANPR to calculate how long you have been on the property for. Is this allowed?

My options now are to pay £60 within 14 days or £100 by 03/12/2019. Or to appeal through POPLA, which is what I would like to do. But reading through the forum, when appealing through POPLA it seems that I need to ensure I am well prepared.

So any advice would be appreciated. Thanks in advance.
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post Fri, 15 Nov 2019 - 17:48
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Jlc
post Fri, 15 Nov 2019 - 18:29
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You appear to have thrown away a clear winning point if the driver has been disclosed.

POPLA will likely agree the charge was correctly issued.

There has to be a minimum grace period of 10 minutes when leaving an allowed period of parking.

Their ANPR has recorded entry and exit times at the perimeter and not the actual period of parking.

Any alleged contract doesn’t commence until you read the signs and pay the tariff - which easily takes 5 minutes.

They are not in the business of accepting appeals. But they are not particularly litigious and you have a potential good defence should they try.

An appeal to POPLA doesn’t appear to help you. I’d state the above and tell them you owe them nothing.

This post has been edited by Jlc: Fri, 15 Nov 2019 - 18:29


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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sakhtolo
post Mon, 25 Nov 2019 - 19:31
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Thanks for the response. the original PCN from NCP was worded in a way that suggested I hadn't paid for parking, not that I hadn't paid enough. So I thought my response would easily just put it to bed, I was wrong! I'll learn for next time and hopefully others will by reading on this forum.


I have drafted an appeal to POPLA based on grace periods and the fact that the driver was identified. Would appreciate your advice on whether you think it is sufficient and whether I should just send to NCP and not bother with a POPLA appeal:

I, the registered keeper of this vehicle, received a letter dated 17/10/2019 acting as a notice to the registered keeper. My appeal to the Operator – NCP – was submitted and acknowledged by the Operator on 23/10/2019 and rejected via an email dated 05/11/2019. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the grounds of:
1. non-compliance of grace periods
2. the operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
1. Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
• BPA’s Code of Practice (13.1) states that: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
• BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
• BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
• BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. It is there reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
On 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':
“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”
The recommendation reads:
“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”
(Source:http://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf)
Therefore, it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice. If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, find a parking spot, park the car, pay for the parking at the pay machine and then return to the car to insert the ticket behind the windscreen.
Also:
a) The lack of sufficient signage throughout the car park in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
b) The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.
e) The lengthiness of NCP’s signage (in terms of word count) with a significant amount of text included in a “Terms and Conditions” section in tiny text at the bottom of the sign.
All factors discussed above serve merely to increase the time taken to:
• Locate a sign containing the terms and conditions
• Read the full terms and conditions
• Decipher the confusing information being presented (ANPR recording but then it is a Pay and Display car park)
• Find a parking spot
• Wait in a queue to pay for parking in the machine
• Return to car and display ticket.
• After parking, locate car in the dark and leave the car park
It is therefore argued that the duration of unpaid parking (NCP claim the parking session was 3 hours and 15 minutes according to ANPR against the actual paid parking period of 3 hours, leaving a difference of 15 minutes), is not a reasonable grace period given that BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start, which combine to 20 minutes in total.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot. Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
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nosferatu1001
post Tue, 26 Nov 2019 - 12:11
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Erm, two is a complete and utter nonsense

The driver is known, yet you are claiming the driver isnt known? Erm, no.

Stop blindly copying and pasting without understanding.
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Jlc
post Tue, 26 Nov 2019 - 12:21
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It's not clear if the driver has been identified or not (the opening post seems to imply it has). If so, any talk of keeper liability is redundant.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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sakhtolo
post Tue, 26 Nov 2019 - 12:41
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QUOTE (nosferatu1001 @ Tue, 26 Nov 2019 - 12:11) *
Erm, two is a complete and utter nonsense

The driver is known, yet you are claiming the driver isnt known? Erm, no.

Stop blindly copying and pasting without understanding.


In my original appeal, I said something along the lines of that I paid for the parking and provided evidence of a screenshot of a bank statement. That is not admission of liability. But I thought I would throw that whole section in there anyway as it can't not add value to an appeal?

You're wrong to assume that it's a blind copy and paste with no understanding...

QUOTE (Jlc @ Tue, 26 Nov 2019 - 12:21) *
It's not clear if the driver has been identified or not (the opening post seems to imply it has). If so, any talk of keeper liability is redundant.


Ok thanks for the advice. I'll take that section out if it adds no value. Should I send the part about grace periods directly to NCP or as an appeal to POPLA?
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nosferatu1001
post Tue, 26 Nov 2019 - 13:11
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Was the driver identified?
Answer yes or no
Youre the only onw who knows

EVen if the driver wasnt identified, do you know if the NCP NtK meets POFAs requirements or not? Because you havent shown us your working on this.

Post 2 was relatively clear and I agree with it. I dont think POPLA will uphold an appeal, but that DOES NOT MEAN the charge is legit.

This post has been edited by nosferatu1001: Tue, 26 Nov 2019 - 13:12
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Jlc
post Tue, 26 Nov 2019 - 13:17
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If an appeal says 'I paid...' then I think it's reasonable to assume the driver was revealed...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Sheffield Dave
post Tue, 26 Nov 2019 - 13:57
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QUOTE (Jlc @ Tue, 26 Nov 2019 - 13:17) *
If an appeal says 'I paid...' then I think it's reasonable to assume the driver was revealed...

But not necessarily. E.g. driver drops passenger off near pay machine to buy ticket while driver goes to park. But unless that is actually the case (and thus could be raised in court) then yes, the judge is likely to assume that the payer was the driver.
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sakhtolo
post Wed, 27 Nov 2019 - 18:03
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Ok so assuming that I have disclosed the driver by telling them that I paid, what are my options now?

Is the argument for a lack of grace period strong enough to appeal to POPLA with? Or do I send back a response to NCP even though they have said I have exhausted their appeals process?
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nosferatu1001
post Thu, 28 Nov 2019 - 07:50
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Yes, you can argue that they knew when the contract started, which was when the ticket was purchased. This is trite law, and has been upheld before now
The fact their ANPR caught your vehicle entering at x doesnt mater; the contract began when the ticket was purchased. That was at Y time (tell us)
This is 3 hours and Z minutes before the vcheicle was seen leaving the premises, which is wihtin the minimum 10 minutes grace period

Dont just cpoy and paste a load of stuff this time. Make it clear
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