Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: dk007 on November 27, 2023, 12:10:44 am
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Many thanks to everyone for the expert advice. I have now added comments to the appeal case as per advice from Nosy Parker and H C Anderson
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Can we pl get away from signage, this just gives an assessor the opportunity to waffle on about minutiae when you need to focus their attention on the key issues:
Comments on the snippets of evidence posted which are central to this case:
1. Landowner authority
The only reference made to this in the creditor's evidence appears to be found on page ** of *** where NCP state they are operating under a 'Management Agreement between London Gatwick Airport and National Car Parks Limited for the enforcement of the Drop Off Zones and Red Routes within the boundary of Gatwick Airport.'
For correctness, the company licensed to operate Gatwick Airport is Gatwick Airport Limited and even this company's accounts list it as a group of companies with 3 specified subsidiary legal entities. Therefore the question must be put and answered regarding with whom is NCP actually contracted: GAL's Group structure suggests it would not be as claimed by NCP.
The creditor could put this issue to bed by disclosing what is required by the CoP.
As it stands, I dispute that this statement of landowner authority meets or in any way approaches the standard set out in the BPA CoP (and to which the creditor should be held in this appeal) which at para. 7 states - set out paras. 7.1-7.4.
Unless, as should not apply, the assessor is prepared simply to take the creditor's word for these matters, then my 'appeal' should be allowed because the creditor hasn't established or even tried to establish any right to make a charge at all.
2. Keeper liability under Schedule 4
I would further add that although the issue of landowner authority applies in all cases, it takes on a more significant meaning in this appeal because the first grounds of my challenge to the creditor were that the land in question was not relevant land and therefore they were prevented from seeking relief from PoFA to hold the keeper liable in lieu of the driver. As can be seen in their rejection, this assertion wasn't addressed in any way, but as can be seen by this case (4822223007) POPLA has expressed a view and one which accords with my assertion.
It is axiomatic that land cannot flip-flop from relevant land to not relevant land then back to relevant land as if changing with the phases of the moon: the drop-off area in question either is or is not relevant land.
If it isn't then this appeal must be allowed. But if it is, then I refer the assessor to the creditor's failure to comply with PoFA and therefore forfeit their right to relief from Schedule 4 i.e. keeper liability.
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Unless there's anything else in the response pack that we haven't seen, so far, there is no rebuttal of the fact that you appealed as the keeper. Nowhere, in what you've shown us, is there a reference to why they are trying to hold you liable as the driver.
The fact that the driver was at the location for 8-9 minutes matters not. They could be there for a day and still not be liable for the charge if they are not identified. Do they mention anywhere in any of the paperwork that they are "assuming" you must be the driver because you are also the keeper?
As long as you have not identified as the driver, they cannot hold you liable as the keeper because this alleged contravention took place on land covered by bylaws. They have not responded or rebutted the fact that you are the keeper.
You also have the fact that the signage is rubbish. Their photos of the signage prove that. Have they included any photos of the vehicle at the drop off zone?
Subject to any other opinions, you only need to highlight the fact that they have not answered how they can hold you liable as the keeper. In your response, you should "lead" the assessor to the facts about their inability to hold you liable as the keeper and that no inference that you were the driver can be made.
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Hi, I have tried to split the pdf, page 1 and page 3 are attached, page 2 has lots of personal information and just a context to page 3 which i am attaching so left page 2. then it has got all the pcn, appeals etc which is already here. Part 3 is the one with all the images etc. I have removed many of the last pages as they had the same information as in the last page of part 3 pdf. it was increasing the size of the pdf to be very high and did not look relevant.
I thought of raising it earlier but other things got me busy and got delayed.
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OP, you say that you received the operators response “pack” by email. I’m assuming this is as a PDF attachment.
If this is the case, you should duplicate the PDF file and then, using a PDF editor, redact any bits that we do not need to see such as your name, address, the VRN and the PCN number. You can then upload the redacted document to DropBox, making sure it is publicly accessible.
You can set up a free DropBox account if you don’t already have one. Without doing all the legwork for you, there are probably other free hosting websites that let you publish PDF documents.
Why have you left it so late to respond to this?
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But we do need the OP to give the 211 pages as good a review as they can.
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I agree it should be that way. But we are in the wacko world of POPLA. I don’t advise waiting till tomorrow to find out whether POPLA has come to its senses on this
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7 days from is......7 days from! Ends on 6th.
As regards 211 pages, look for anything which:
1.Gives NCP the right to operate on the land - it's hard to believe that everyone is so mad that even large corporations don't know the status of their land. Look for anything which relates to bylaws applying.
2. Explains the delay of 5 months between event and serving of NTK, surely there's something in the evidence to explain or which refers to this.
In essence, your defence as registered keeper is that:
In the event that a driver is liable to a landowner or their authorised agent for a charge or however else this might be described pursuant to a breach of contract, then the law allows the creditor to seek relief by holding the keeper liable in the driver's stead subject to 'all applicable conditions under this Schedule[Schedule 4 to PoFA]' being met by them.
POPLA is not a judicial proceeding and therefore cannot require the appellant to take any particular action but may simply give their view as to whether in their opinion the creditor would be entitled to relief under Schedule 4 which relates solely to the right to hold the keeper liable.
This must not be confused with the creditor's rights to pursue the driver which are legally distinct.
Such relief is only available if all applicable conditions in the Schedule have been met by the creditor: no burden in this matter falls to the keeper.
..list the creditor's failings..which are objective.
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As a general rule, you should use the 'comments' stage, to point out any holes in the operator's evidence, anything within it that reinforces your case, and anything in it that weakens theirs. If you've made a point in your appeal that they have failed to address, point this out. If they have made a claim that is not backed up by their evidence pack, point this out, etc. etc.
It would be useful to see the document but, like Nosy Parker, I also have a day job and will have little time to pour over such a large document in any great detail. We potentially don't need to see all 211 pages, but as we don't know what pages contain what, it's hard to advise on what would be useful to see.
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I am sorry you sat on this for the entire 7 days before seeking advice. Unfortunately, I have to go out to my day job now. Hopefully someone else will advise further. All I can do is urge you to use the wording I've already provided.
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Hi, looks like today is the last day, this is what the email says:
" you have seven days from the date of this correspondence to provide comments on the evidence uploaded by NCP limited- Gatwick Airport"
And it is an 211 page pdf document with personal information at number of places, please advise how to hide the personal information in such a document and then to upload.
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Post the email or else transcribe the relevant part word for word regarding the latest date by which you must respond.
At present we have you saying 'i have got 7 days from the date of this correspondence' and NP who, probably through experience, thinks this is '7 days beginning on the date'.
As explained, these are not the same.
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PS As you received the POPLA email on 30 January, that date is day 1 of your 7 days to respond and today is the last day.
So you must act today if you want to comment on the operator’s evidence. If you say nothing else, at least say what I advised you twice to say.
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You can add the following at a later stage when you get the opportunity to comment on NCP's case - if they even bother to oppose the appeal:
Attention is drawn to the fact that POPLA's Complaints Team has twice issued apologies for assessors wrongly applying keeper liability for parking on airport land and confirming that, as airport land is not 'relevant land' as defined in POFA, there can be no keeper liability for parking on airport land. The most recent apology relates to POPLA case 4822223007 and was issued on 7 December 2023.
Did you mean to ask us whether you should comment on the operator’s evidence without showing that evidence to us, or are you about to post it for us to review?
If the latter, please obscure any information that could identify you (POPLA code, PCN number, vehicle number, name, address). Use an external hosting site such as www.imgur.com and post the link.
If the former, then obviously we can’t advise beyond repeating the statement I previously advised you to include in your comments.
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Hello experts, I recieved an email 30th Jan from Popla that NCP has now uploaded its evidence and I have got 7 days from the date of this correspondence to provide any comments. Should I add any comments?
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You can add the following at a later stage when you get the opportunity to comment on NCP's case - if they even bother to oppose the appeal:
Attention is drawn to the fact that POPLA's Complaints Team has twice issued apologies for assessors wrongly applying keeper liability for parking on airport land and confirming that, as airport land is not 'relevant land' as defined in POFA, there can be no keeper liability for parking on airport land. The most recent apology relates to POPLA case 4822223007 and was issued on 7 December 2023.
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Sure, thanks, I have appealed it now.
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If POPLA allow up to 33 days from the date of the operator's letter then this is Sat. 13th. (letter dated 11 Dec.)
If not, then you're likely to be too late.
Get what you've got submitted ASP.
But POPLA isn't a judicial proceeding, the only one which counts is civil court.
Not only are you not required to name the driver, you're under no legal duty to respond to their drivel. Just because they initiate correspondence doesn't mean it has any legal significance, and theirs doesn't because the only relevant statute, Sch. 4 Protection of Freedoms Act 2012, specifically excludes such a claim from its scope!
As others know, I don't agree with the template because implicitly it subscribes to a legally false premise e.g. of course their notice doesn't comply with PoFA, it never sought to; and it makes no demands on the keeper etc.
But we don't have time to debate this - go with what you've got and hope you're not too late.
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This is what i have found on mse website:
I am appealing as keeper. I am not obliged to identify the driver and I decline to do so.
1. The operator is unable to transfer liability to me as keeper pursuant to Schedule 4 to the Protection of Freedoms Act 2012 (“POFA”) because the drop off zones at Gatwick are not ‘relevant land’ as defined in POFA.
2. Even if (which is not the case) the land in question is relevant land the operator’s notice was delivered after the expiry of the ‘relevant period’ as defined in POFA paragraph 9(5).
3 In addition the operator’s notice does not conform to the requirements set out in POFA paragraphs 9(2)(f).
Furthermore, as keeper I am entitled to all the defences available to the driver including (without limitation) the following:
4. The parking charge is not notified until after the contract is entered into and under the principles set out by the Court of Appeal in Thornton v Shoe Lane Parking, does not form part of the contract between the driver and the operator;
5 The signage is not compliant with the BPA Code of Practice.
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I'm not sure that there's a template "ready to go" - if you search on PePiPoo and the MoneySavingExpert private parking forums for Gatwick cases there should be some that have gone to POPLA that will have examples you can use to help you. The points you should be making will be along the following key lines:
- That you are appealing as the registered keeper, and that NCP do not know the identity of the driver, and that you have no liability as the keeper because:
- Parking at Gatwick Airport, including the drop off zones, is subject to statutory control, namely byelways, and is therefore not 'Relevant Land' as defined by Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). As a result of this, they cannot use the provisions of PoFA to hold you liable as the registered keeper
- Even if it were relevant land, which is denied, NCP's notice does not conform to the requirements of a Notice to Keeper as prescribed by paragraph 9 of the Act, as it was not given within the relevant period of 14 days of the parking incident, as required by 9(4)
- Signage - Nosy Parker may be more familiar with the issues with the signage at Gatwick, but it is known to be shoddy
The PoFA points should be enough to get POPLA on board. If you can draft something up ASAP and show us, ideally today.
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Hi, Thanks, Please could you direct me to the link to draft this appeal or if there is a draft appeal to use, i can do so.
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The fact they were prepared to settle up for £15 suggests they know they've no case.
Yes, you'll need to get your POPLA appeal in ASAP - have you been drafting one on the basis of the lack of PoFA compliance?
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Hi,
I managed to find the rejection letter, please could you review and advise as we may not have much time to respond to this.
Many Thanks
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You really need that POPLA code in order to appeal and you need to lodge your appeal before the POPLA code expires. The rejection letter will have told you that the code expires after 28 days but they usually remain alive until day 33.
You can request a copy from NCP via a subject access request (SAR) but they can take up to a calendar month to respond and they will only start the clock running if you supply a copy of your vehicle V5 registration document (log book) so
you should send it in with your SAR. The email address for your SAR is dataprotection@ncp.co.uk. You can also submit it via the NCP website at https://national-car-parks-limited.privacy.saymine.io/National_Car_Parks_Limited
But it would be best if you could just find it and lodge your POPLA appeal
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You could do with searching for it... That letter will contain the POPLA code that you need in order to lodge an appeal with POPLA.
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Hi, thanks for your messages, It seems I have misplaced that letter, please could you advise what to do? Thanks
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POPLA will be your next step, but as above let's see the rejection letter so we know what they're trying to argue.
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Please show us the rejection letter with the usual redactions
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Hi, I had appealed using as stated above but they rejected it, rejection letter came about a week ago. What should be the next course of action?
Thanks
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That's very late even by NCP standards! Can you confirm that you're the registered keeper of the vehicle? If so, the appeal linked to by Nosy Parker above will be a good one to use.
If it's a hire/lease car and you aren't the RK let us know and we can advise an alternative.
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Appeal using one of the standard Gatwick/Heathrow drop of zone appeal templates. This one is as good as any http://forums.pepipoo.com/index.php?showtopic=150322
Be sure not to identify who was driving
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Hello Experts,
I have received this Parking Charge Notice to Keeper from NCP for Gatwick Airport drop off zone. Date of incident is 05th june but letter has arrived few days back and it is dated 10th Nov 2023.
Please could you advise if it can be appealed? Is it ok for them to send it about 6 months later or they need to send it within few days of the incident?
Thanks
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