Parking Charge Notice in own space - UKCPS

ChrisParking

Hi everyone,

I recently had a parking charge notice left on my vehicle by UKCPS whilst parked within my designated space in the car park of my apartment building. The reason being 'Parking without a valid permit or authority', unfortunately my permit had dropped from the windscreen and wasn't on view - not that it should matter seen as its my space and I'm the only person with the authority to park there!

I looked up the parking rules in my rental agreement and it says 'Where parking is allocated, you are required to ensure that you only park in the designated bay and to ensure that the required valid permit is displayed. Please ensure your vehicle does not obstruct any access to neighbouring properties.'

Whilst I did know a permit should be displayed I had absolutely no idea that UKCPS managed the car park, the parking charge notice came as a complete surprise to me.

Here is a photo of the UKCPS signage at the car park - dl.dropboxusercontent.com/u/307059/photo.JPG

I followed the advice in the newbie thread and sent my soft rejection to UKCPS which was of course rejected without a POPLA code, I wrote to them a second time explicitly asking for one and I've now finally received my code.

I've had a go at writing my POPLA appeal letter and was wondering if anyone could offer some feedback or advice on it. I've got another 24 days before it needs to be submitted so I want to make sure I get it just right! I will post my draft letter below...

Thanks in advance!

ChrisParking

Dear POPLA

I am the registered keeper of the vehicle XXXX XXX and I contend that I am not liable for the above parking charge notice and that the vehicle was not improperly parked. I wish to appeal against the notice on the following grounds. I ask that all points be considered.


1. The driver is a legitimate user of the car park.

2. The driver was not aware that UKCPS operated within the car park. UKCPS signage is not compliant with the BPA Code of Practice.

3. There is signage at the car park stating residents can park.

4. The amount demanded is not a genuine pre-estimate of loss. The driver was parked within their designated parking space at their residential address, therefore there was no cost caused to the landowner.

5. The parking company has no contract with the landowner that permits them to charge motorists or to pursue these charges through the courts.

6. Failure to comply with the BPA Code of Practice of supplying a POPLA code with a rejection of appeal letter.


Here are detailed explanations of the above appeal points:


1. The driver is a legitimate user of the car park. The driver is a resident of REMOVED and has a permit to park within their designated parking space. The driver is the only person with the right to park within the designated parking bay, as the driver was correctly parked within their bay there was no cost, inconvenience or health and safety implications to any other user of the car park.


2. The driver did not enter into a contract with UKCPS. A contract cannot be formed when the driver did not see unclear signage. UKCPS claim that by parking in the REMOVED car park the driver agreed to pay a charge of £100. However as there is no clear UKCPS signage at the entrance gate to the car park the driver did not accept the terms and no contract was entered into.

Please see attached photos highlighting the lack of UKCPS signage at the entrance gate to the car park and also the lack of signage at the parking space in which the car was parked.

The yellow signs at the entrance gate to the car park state ‘CCTV SURVEILLANCE. These premises are protected 24/7 by CCTV which is continuously recorded and monitored'. These signs do not mention any parking rules and they do not form a UKCPS contract. The orange and white signs that can be seen to the right of the image are not parking signs; these signs outline the rules for using the dustbin facilities.

The BPA Code of Practice point 18.2 states that ‘Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.’ The BPA Code of Practice Appendix B also states ‘The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.’ 

The lack of signage at the entrance gate to the car park is a clear breach of the BPA Code of Practice.


3. There is signage present at the car park that invites residents to park. Please see the attached photo of the sign reading ‘No Parking Except Residents’. This sign clearly states it is acceptable for residents of the premises to park within the car park. The sign does not mention the requirement to display a permit or that a contract is being entered into by parking there.


4. The charge is not a genuine pre-estimate of loss. In accordance to the Unfair Terms in Consumer Contract Regulations 1999, parking charges on private land should be proportionate to the cost caused to the landowner. This is the driver’s place of residence and the driver was correctly parked within their own parking space it can then only follow that there was absolutely no cost caused to the landowner. Therefore this charge is punitive and not justifiable. I ask that UKCPS provide a detailed breakdown of the liquidated damages suffered and by whom, and when this calculation was determined and how this particular loss arose. I also ask that UKCPS explain how/why they charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

Were no breach to have occurred then the cost of parking enforcement (e.g. erecting signage, office costs, staff wages) would still have been the same and therefore may not be included.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable.

UKCPS are either charging for losses or the charge is a penalty/fine. It would therefore follow that these charges are punitive and have profit included; these fines cannot be issued by a private parking company. Point 19.6 of the BPA Code of Conduct states ‘If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable’.


5. The BPA Code of Practice section 7 states ‘If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question.’

I have seen no evidence that such a contract exists between UKCPS and the landowner at REMOVED. I therefore believe there is no contract with the landowner/agent that entitles UKCPS to levy these charges and therefore UKCPS have no authority to issue parking charge notices. As UKCPS are not the owners of this land, I wish UKCPS to provide a full copy of their contract with the landowner which allows them to form such a contract with the driver. Please note that a 'Witness Statement' to the effect that a contract is in place between UKCPS and the landowner will be insufficient and only The Deed of Title in the land will do. Even if a basic contract is produced and mentions parking charge notices, the lack of ownership, assignment, title or interest in the land reduces any contract to one that exists simply on an agency basis between UKCPS and the owner/agent, containing nothing that UKCPS can lawfully use in their own name as a mere agent, that could impact on a third party. In addition, UKCPS’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. This being the case, the burden of proof lies with UKCPS. The driver expects UKCPS to prove that they are not in breach of section 7.1 of the British Parking Association Code of Practice. I refer to the recent court case where ParkingEye lost to Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013. ParkingEye have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and the landowner, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.


6. Point 22.12 of the BPA Code of Practice states that ‘if you reject a challenge you must tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form, or a link to the appropriate website for lodging an appeal and the 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in the dated rejection notice/letter’. 

In the appeal rejection letter I received from UKCPS no such information was provided. I only received a POPLA verification code by writing to UKCPS for the second time and explicitly asking for one. This is another clear breach of the BPA Code of Practice.

I hope to hear from POPLA soon that my appeal against this punitive charge has been upheld.

patman99

Another 'lease trumps PPC' job this one. Ask your LL for a copy of his lease. This will outline the parking conditions that come with the flat.
If it has no mention of a permit scheme then you have the upper hand as the lease will trump the PPC and they can 'go do one' as they say.

Don't forget to educate your fellow residents about how to beat these scammers.

ChrisParking

Thanks patman99

I spoke on the phone today with the property manager of the apartment and explained the situation to him. He said whilst the ticket was correctly issued, UKCPS should've cancelled the ticket as soon as I explained that I'm a resident in my appeal. He said the reason they got UKCPS to manage the car park was to make life easier for residents, not to cause them trouble and inconvenience. He has now taken up the appeal on my behalf, he is going to get in touch with UKCPS and tell them that if they want to keep the contract to manage the car park he strongly advises they cancel the ticket.

I also informed him of UKCPS' breaches of the BPA Code of Practice. I'll see if I get confirmation that the ticket is canceled before I go any further with this just yet.

Coupon-mad

But if not sorted within two weeks send the POPLA appeal to POPLA anyway. Check the expiry date of your POPLA code on the Parking Cowboys' code checker (in post #3 of the NEWBIES sticky thread) so you know your deadline for POPLA. Do not rely on a third party cancelling this ticket, do not let the POPLA code lapse.

ChrisParking

Hi Coupon-mad, is my POPLA letter okay to send as it is? Any feedback would be much appreciated.

Thanks for the great stickies by the way.

bod1467

That looks fine to me. The only (very minor) points are there are some instances of no space after a full stop. e.g.

enforceable.

UKCPS
question.’

I have

da_rule

Does the permit have the vehicle registration and issue/expiry date on it? If so it might be worth submitting a copy of it as evidence to prove point 1. If the permit does have the registration number of the vehicle on it then I would suggest changing some of the wording of point 1 to reflect that the vehicle was legitimately parked, rather than referring to the driver.

ChrisParking

The permit has its own unique number and also the number of my flat, no dates or vehicle registration. I can submit a copy of it as evidence though.

I'll check all the spacing before sending.

Thanks again.

HO87

+1

Change Point 1 to something simple like:

The vehicle was legitimately parked.

I would change a number of the other Points as follows:

Points 2 & 3 conflict although I suspect I know the point you were trying to make. I'd do away with Point 3 altogether (don't forget to renumber)and change the wording of Point 2 to something along the lines of:

The site signage is ambiguous and does not in any event comply with the requirements of the BPA Code of Practice in respect of its style, size, visibility, or the size of typeface.

Point 4. Change the final sentence so that the point was made from the point of view of where the vehicle was not the driver. So:

The amount demanded is not a genuine pre-estimate of loss. The vehicle was parked within its designated space and there cannot, therefore, have been any loss to the landowner as a result.

On the basis of what you have already posted I have some additional points in terms of the detailed explanation of Point 2 which, with respect I think is overworked and could be better targeted.

If you are entitled, as a result of your lease/tenancy agreement, to the use of a parking space then the attempt to offer the same space to you - whether that be by the landowner or UKCPS - is redundant. The space has already been let to you and cannot then be offered to you again by way of contract. That could amount to conversion and/or trespass dependant upon who is actually offering the contract and who they may be acting on behalf of.

The signage may contain an inferred offer to residents to park but their rights to park are not conferred by way of these signs - they are already contained in their leases. They already have that right. Rather the sign is not an offer to residents to park but an exclusion of those who are not. Any reasonable interpretation of the sign is that it is intended to make clear that anyone who parks and is not a resident must therefore be trespassing. It certainly does not amount to a contractual offer.

In that respect UKCPS's argument falls as your rights to use the car park exist beyond the terms of any purported contract. Besides, in any contract there must be consideration provided (in other words each party must provide "something') on each side and as the keeper's rights to park exist outside of any relationship with UKCPS they cannot have provided any consideration in this respect. By the same token, the keeper pays rent (which includes an element of payment for the parking space) to the landowner and provides no consideration in respect of it to UKCPS.

In addition, as already stated, as the right to park pre-existed UKCPS's involvement there is and never has been any intention to contract or otherwise enter into a relationship with UKCPS in respect of the use of the car park (or indeed in any other respect).

There cannot therefore have been any contract. Unless I have missed something

ChrisParking

Thanks, I will get rid of point 3.

I spoke to a customer service advisor of the agency that manage the building the day I got the fakePCN and she said all the flats are leaseholds that don't include the parking space, therefore the parking space is private land separate to the apartment. Can there be any truth in that or was she talking nonsense?

Don't know whether to attack this from a 'did not see signage' angle (which I didn't) or a 'tenancy agreement trumps signage'... or both! My tenancy agreement does say to only park with permit on view - does that matter?