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  • FIRST POST
    • hineyb
    • By hineyb 30th Aug 16, 9:28 AM
    • 21Posts
    • 2Thanks
    hineyb
    UKPC 2nd letter stage
    • #1
    • 30th Aug 16, 9:28 AM
    UKPC 2nd letter stage 30th Aug 16 at 9:28 AM
    Hi, i am newbie in terms of account creation but i have been following and using these posts for years using all your advice.. i have won every appeal so far (even some luckily against councils!) i even do appeals for my friends and do well..

    Anyway i have got this far without ever needing to ask a question or ask for advice but now it seems UKPC have stumped me!!!

    my girlfriend has recently moved to a rented flat which UKPC control.. she doesnt drive so she has given me her permit.. a few times the car park has been so full that i have just parked in a made up space.. which most times i have got away with.. this time however.. they have fined me (UKPC) my car was fined on the 10/06/16, i did the norm and ignored the fine and took it off windscreen and put in my car as i always do and waited the NTK.. i received the NTK on 14/07/16, i then wrote to them in the standard form that i always use for the newbies page..

    they then wrote back on the 22/08 saying..

    [COLOR="red"]thank you for your recent correspondence in relation to the parking charge.

    in order to make a final decision regarding your appeal, pleace can you provide the full name and address of the driver to our appeals department within 21 days of this letter

    Paragraph 9(2)(B) of schedule 4 of the protection of freedoms act 2012, states that we must inform the registered keeper that the drive of a vehicle is required to pay the parking charge in full. it also notes that as we do no know the drivers name or current postal address, the registered keeper, if they not the driver at the time, should inform the operator (i.e us ) of the name and current address of the driver and pass the notice to them.

    The act also warns that if, at the end of the period of 28 days beginning with the day after parking charge is sent), the parking charge has not been paid in full and the operator does not know both the name and current address of the driver,m the operator has the right to recover and unpaid part of the parking charge from the registered keeper. this warning is given under paragraph 9(2)(f) of schedule 4 of the protection of freedoms act 2012 and is subject to us complying with the applicable conditions under schedule 34 of that act (which we consider we do comply with, to the letter)

    Failure to provide this information will give us no alternative other than to make our final decision based on the previous information received, at this stage a POPLA verification code will be provided.

    Further correspondence can be sent to our postal address below or on our website at (their website)

    The parking charge has been on hold whilst under appeal and may be settled in full at the reduced rate of £60.

    PLEASE DO NOT IGNORE THIS LETTER. UKPC REGULARLY TAKES MOTORISTS TO COURT WHO IGNORE THEIR PARKING CHARGERS. PLEASE SEE (a link to their site again) FOR FURTHER INFORMATION.


    Please excuse any errors in the above i had to type the letter up as i am not sure how to upload a pic to this.. (any instructions would be great )

    What would you suggest my next steps be??

    I have also about another 3 fines coming through from them as i didnt put the permit up.. as its lost its stickiness and falls down so i leave it off and put i up when i park.. but stupidly i have forgotten around 3 times.. so i know i have another 3 on their way!! (any advanced suggestions on this would be great too!) i am not on the lease agreement so id struggle to prove anything that way!!

    Thanks for your help in advance
Page 3
    • hineyb
    • By hineyb 22nd Sep 16, 11:43 AM
    • 21 Posts
    • 2 Thanks
    hineyb
    i guess you are refferring to this part of my letter?

    'I am the registered keeper and I wish to appeal a recent parking charge from UKPC on 19/07/2016 06:08 at Apsley Lock. I submit the points below to show that I am not liable for the parking charge'

    so what am i appealing under

    my vehicle was stolen - no
    i was not improperly parked? - ??
    the amount requested on the pcn is not correct - no
    i was not the driver or registered keeper of the vehicle at the time? - ??
    or other? but on other it says appeals based solely on the following grounds are less likely to be successful ?

    Please excuse any ignorance.. this is my first time appealing with POPLA!! i do apologise!
    Last edited by hineyb; 22-09-2016 at 11:44 AM. Reason: apology
    • bod1467
    • By bod1467 22nd Sep 16, 11:53 AM
    • 14,782 Posts
    • 13,399 Thanks
    bod1467
    Ignore the dire warnings ... anyone with any sense chooses Other.
    Got a Parking Charge Notice (parking ticket - IT'S NOT A FINE!)? Go here for further info ...
    Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking >
    ... and click on the NEWBIES sticky thread (4816822)
    Please do not PM me for help - I will not offer help via PM.
    • hineyb
    • By hineyb 22nd Sep 16, 11:58 AM
    • 21 Posts
    • 2 Thanks
    hineyb
    Ok ok

    i have added a 4th section in to my appeal

    before i submit.. is there anything i need to add or remove?

    Thanks

    I am the registered keeper and I wish to appeal a recent parking charge from UKPC on 19/07/2016 06:08 at Apsley Lock. I submit the points below to show that I am not liable for the parking charge:

    1) No standing or authority to pursue charges nor form contracts with drivers.
    2) The signage was not readable so there was no valid contract formed.
    3) No contract agreed and no legitimate interest nor clear signs.
    4) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

    1) No standing or authority to pursue charges nor form contracts with drivers.

    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPCmust have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice.

    Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.!

    In addition, Section 7.3 states:

    “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.''

    I therefore put UKPC to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between UKPC and the landowner, not another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to UKPC.!

    2) The signage was not compliant so there was no valid contract formed between UKPC and the driver.

    Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

    Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

    18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

    18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

    18.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes:
    • specifying the sum payable for unauthorised parking
    • adequately bringing the charges to the attention of drivers, and
    • following any applicable government signage regulations.

    18.10 So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.

    UKPC’s reason for issuing the parking charge was, “Parking in a permit area without displaying a valid permit”. As per Appendix B, “There must be at least one item from Group 1. In this instance, that would apply to text mentioning “Permit holders only”

    Also as per Appendix B, “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.” Contrary to this, you can see from UKPC photographic evidence, their signage text is far to small for any one with good eyesight to read, not to mention the fact they are not well lit at night making this impossible to see.

    If a driver can't read the sum of the parking charge (£100) nor the terms before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

    The well-known and often used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

    ‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’!

    i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge for not displaying a valid ticket in a car park) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.!

    The signs are up on poles, higher than normal line-of-sight nor do they communicate full contractual terms & conditions visible to the occupants of the car. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by UKPC to POPLA will show the signs with the misleading aid of a close up camera and the angle may well not show how high the sign is. As such, I require UKPC to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo shopping, cropping or lighting aids (including lighting adjustments made by camera or software) and showing where the signs are placed.

    3) No contract agreed and no legitimate interest nor clear signs.

    I also wish to reference the Aziz test (as my case is different to that of Beavis v Parking Eye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”!

    And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. There is no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

    4) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

    The requirements of Schedule 4 POFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt. The BPA Ltd AOS Code of Practice (version 5, October 2015) supports the need for strict compliance (para 21.5 refers). UKPC has however failed to comply with the statutory requirements as followed.

    a) In regards to paragraph 8(2)(a) of Schedule 4, POFA 2012, the 'period of parking' is not 'specified', only the time and date the parking charge was issued. It does not specify the period of parking as demanded under POFA 2012 paragraph 8(2)(a) and paragraph 7(2)(a). In fact the observation time is not specified. The Notice does not state the period of parking, merely the time of the alleged contravention.

    b) The Notice to Keeper does not, as per Paragraph 8(2)(c), state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f), with 7(2)(b) requiring that it “describe(s) those charges, the circumstances in which the requirement arose”. The “breach” was alleged to be for “parking for longer than the maximum period permitted”, however it does not make clear to the keeper what the maximum period permitted was, and how the driver had (allegedly) exceeded this.

    b) Paragraph 8(2)(e) requires that the Notice to Keeper must “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”. The Notice to Keeper clearly fails to comply with this requirement.

    c) Paragraph 8 (2)(g) requires the operator to inform the keeper of any discount offered for prompt payment. The ‘Notice to Keeper’ fails to offer any discount and is therefore neither in compliance with the strict requirements of POFA nor with the BPA Ltd AOS Code of Practice (version 5, October 2015) paragraph 21.10.

    UKPC have failed to comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

    I have made my detailed submission to show how the applicable law (POFA) supports my appeal, which I submit should now be determined in my favour.

    This concludes my POPLA appeal.

    Yours faithfully,
    • Coupon-mad
    • By Coupon-mad 22nd Sep 16, 12:40 PM
    • 38,389 Posts
    • 49,825 Thanks
    Coupon-mad
    Paragraph 8(2)(e) requires that the Notice to Keeper must “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”. The Notice to Keeper clearly fails to comply with this requirement.
    Does it fail? I thought UKPC were OK in this wording? Show us, if in doubt.

    Also see the POPLA Decisions thread from last week, where new template POPLA points are shown, half a dozen of them for you to grab.
    PCN in a private car park in England/Wales? DON'T PAY IT BUT DO NOT IGNORE IT

    USE THE 'FORUM JUMP' ON RIGHT, GO TO THE PARKING TICKETS FORUM. READ THE 'NEWBIES' THREAD.
    Do NOT read old advice to ignore, unless in Scotland/NI.

    • hineyb
    • By hineyb 22nd Sep 16, 1:23 PM
    • 21 Posts
    • 2 Thanks
    hineyb
    Ok i will take that out..

    are there any other points i should take out ??

    If not ill go ahead and send...

    it seems a bit long - does this matter??
    • Coupon-mad
    • By Coupon-mad 22nd Sep 16, 2:12 PM
    • 38,389 Posts
    • 49,825 Thanks
    Coupon-mad
    That is not long at all by our standards and you haven't grabbed all possible POPLA points yet, from 'POPLA Decisions'. They were posted last week at the end there, to be copied where relevant.
    PCN in a private car park in England/Wales? DON'T PAY IT BUT DO NOT IGNORE IT

    USE THE 'FORUM JUMP' ON RIGHT, GO TO THE PARKING TICKETS FORUM. READ THE 'NEWBIES' THREAD.
    Do NOT read old advice to ignore, unless in Scotland/NI.

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