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UKPC Parking Charge - Incorrect Vehicle Registration

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  • Coupon-mad
    Coupon-mad Posts: 130,105
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    I would wait for the NTK, but you can complain as long as you tell the gym/retail Manager NOT to give your data (name) to UKPC and merely to cancel it. If they will, then good. Get that done within a week if possible then neither you nor the other car owner will get letters.
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  • sods_law
    sods_law Posts: 14 Forumite
    Thanks for the advice so far all.

    I have emailed both the gym and cinema (I am members of both) regarding the matter and will hopefully get a positive response.

    In case I do not get a positive response, I assume waiting for the NTK rather than appealing within 28 days is because of the VRN irregularity and I may never receive a NTK?
  • Quentin
    Quentin Posts: 40,405 Forumite
    sods_law wrote: »
    In case I do not get a positive response, I assume waiting for the NTK rather than appealing within 28 days is because of the VRN irregularity and I may never receive a NTK?
    Yes - wait and see!
  • sods_law wrote: »
    In case I do not get a positive response, I assume waiting for the NTK rather than appealing within 28 days is because of the VRN irregularity and I may never receive a NTK?
    Yes, wait.

    In normal circumstances, appealing around day 26 is in order that the PPC fails to send a NTK, and thus fails to meet all the POFA requirements for keeper liability. In this case, even if they do spot the error and send you an NTK, they will still fail the POFA criteria. POFA states that the information on the NTD (the windscreen ticket) and the information on the NTK must be the same. Clearly that is not possible given the incorrect VRN on the NTD. Therefore it's a fail either way.
  • sods_law
    sods_law Posts: 14 Forumite
    Great help all, I fully understand :) I will wait and see and update at the end of the month!

    I can see why people just pay rather than go through a load of aggravation!
  • sods_law
    sods_law Posts: 14 Forumite
    edited 19 February 2017 at 6:52PM
    Good evening again all, they obviously spotted their error on the ticket and I have now received the NTK.

    They have issued a new reference number from them obviously realising the error in their ways on the windscreen ticket. Is the windscreen ticket relevant at this point?

    UKPC have an appeals Website, I have used the template on this forum to get a POPLA code, and once I have this I assume the fun begins? :)
  • Coupon-mad
    Coupon-mad Posts: 130,105
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    Yes and one of your appeal points to add to the usual templates for POPLA, will be to explain to the less-than-sharp brains of POPLA Assessors (sorry but it is true) that under the POFA, the information in a NTD must be repeated on the NTK and so, it isn't possible to establish 'keeper liability' by randomly issuing a fresh postal NTK six weeks later with a new PCN number on it, as if the NTD is a nullity.
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  • sods_law
    sods_law Posts: 14 Forumite
    Hi All,

    I need to submit my POPLA appeal this weekend. I have used the normal templates, and added my own top section which is case specific why there cannot be keeper liability.

    A couple of things I am not clear on:
    1) do I add my own evidence in the POPLA appeal? I am assumed yes and incorporated into the appeal. Can easily take this out...
    2) I ignore the POPLA template and add my document as a PDF?

    Any comments greatly appreciated:)

    POPLA Ref: XXXXXXX
    UKPC PCN Ref No. XXXXX/XXXXX

    A notice to keeper was issued on (date) and received by me, the registered keeper of Vehicle Reg: XXXXXX on (date) for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Crawley Leisure Park on (date). I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons:


    1. The operator has not met the conditions of POFA 2012 for there to be keeper liability for the charge

    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    4. 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



    1. The operator has not met the conditions of POFA 2012 for there to be keeper liability for the charge

    The Protection of Freedoms Act 2012 (POFA) allows a car park operator to hold the registered keeper liable for a parking charge where the driver that incurred a notice cannot be identified. In order for the keeper to me made liable the strict conditions of the POFA must be met. Where these conditions have not been met, the operator has no legal right to enforce any charge against the keeper.

    Section 7 of Schedule 4 of the POFA clearly identifies the requirements of a notice to driver:

    (1) A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) 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;

    The operator, UK Parking Control Ltd (UKPC) has failed to meet the first condition of Section 7. The notice to driver issued was for a vehicle with a different vehicle registration mark than the vehicle relevant to this appeal; therefore the requirements under Schedule 4 have not been met and therefore there can be no keeper liability established by the operator for the charge under this point on the notice to driver.

    Section 9 of Schedule 4 of the POFA clearly identifies the requirements of a notice to keeper:

    (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.

    (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.

    The operator, UKPC issued a notice to keeper on (date) for a parking charge on (date). This is 30 days after the alleged parking offence and does therefore not meet the strict requirements of Schedule 4 of the POFA. UKPC has therefore not met the requirements for there to be keeper liability under POFA and therefore there can be no keeper liability established from the notice to keeper issued by UKPC.


    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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 appellant 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.''


    3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As UKPC does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 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



    4. 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

    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:

    (picture)

    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:

    (picture)

    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.

    Here, 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.

    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 enclose the signage evidence provided to me (the registered keeper) by the operator for the alleged offence:


    (evidence provided to me by UKPC)


    It is clear that from a drivers perspective it is not possible to read the full terms of parking, let alone actually notice there is a parking sign, before parking.

    Should the operator not agree with the above statement and images they themselves have provided to me, 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.

    In full consideration of the points above, I feel it is clear that:

    1. There is no keeper liability as the operator UKPC as not adhered to the strict POFA requirements.
    2. The operator has provided evidence of the driver who may have been potentially liable for the charge.
    3. No evidence of landowner authority has been provided
    4. The signage in the car park is not prominent with insufficient notice of the sum of the charge itself.

    I ask of POPLA that you upload this appeal, thus cancelling all charges with immediate effect.


    Regards,


    (name)
  • Coupon-mad
    Coupon-mad Posts: 130,105
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    You need to change this because issuing a NTK after 30 days is fine. What is not fine is the fact there was no valid matching NTD first:
    The operator, UKPC issued a notice to keeper on (date) for a parking charge on (date). This is 30 days after the alleged parking offence and does therefore not meet the strict requirements of Schedule 4 of the POFA. UKPC has therefore not met the requirements for there to be keeper liability under POFA and therefore there can be no keeper liability established from the notice to keeper issued by UKPC.

    You need to explain the issues; the fact that the POFA says a NTK must 'repeat the information' in a NTD. As no NTD was issued to THIS car VRN, the altered (new PCN number) NTK was not valid either under para 8 nor para 9 of Schedule 4.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • sods_law
    sods_law Posts: 14 Forumite
    Hi Coupon-mad,

    I think we have looked at this different ways. There are 2 options under para 6 of POFA:

    (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
    (b)has given a notice to keeper in accordance with paragraph 9.

    I have assumed that the NTD and NTK are unrelated, i.e. NTD under (a) which is invalid, and no NTK following this up, and a separate NTK issued under (b) outside of the 14 day period which applies to para 9 (because the notices are different references).

    Should I assume that only (a) applies and the NTD and NTK are related even though they have different charge numbers? If so then para 8 (c) has been not met as different information?

    Technically both of the above could be argued?
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