PCN issued by UKCPM in dark

tedjums

Hi, I am looking for some help.




My wife and I both were issued PCNs by UKCPM at the same time and place in circumstances which should be explained by my draft POPLA appeal below. This is the same car park as current threads for dodo24 and Cazador.

I did not find your newbies thread before sending off my appeal to UKCPM, so did not wait for the NTKs. However I have spent many hours on your threads and other websites and cobbled together the following which I hope covers the points correctly. I would be particularly interested in your thoughts on my point 2 - I hope I have got the correct interpretation of the current legal situation.

Appeal to POPLA – Verification Code xxxxxxxx

I wish to appeal PCN xxxxx issued to me by UK Car Park Management (CPM)

The Background to the Appeal

On the day xxxxxxxxxx, my wife (subject to separate Appeal) and I were both returning from a pantomime with a couple of our very young grandchildren in each car and needed to collect a take-away in Fleet. There was no street parking available so we stopped behind 2 empty shops in Fleet Road on what we believed to be vacant land– the take-away also backed onto this area. It was nearly 6 o’clock in the evening and completely dark. There was no sign at the entrance to the land to warn us that we were entering private land and we saw no signs about not parking. The whole area where we parked was particularly dark and gloomy. We returned to our cars in less than 10 minutes to find a PCN stuck to each windscreen. Upon searching the area we managed to locate 2 signs on the walls around the area, but could only read them by getting up close. There was no sign of the CPM operative who had issued the PCNs, either when we parked or when we returned.

We subsequently returned to the site in daylight. Where we had parked is a scruffy piece of open concreted land behind the closed shops and the take-away. There was no entrance barrier and no entry sign. We discovered three notices about not parking: one 7 feet high off the ground on a wall to the left of the entrance, one 8 feet high at the rear of the land and one to the right 3 feet high which had been obscured from our sight in the dark by two parked cars.

My appeal against the PCN is based on the following grounds:

1. Signage was not compliant with BPA AOS Code of Practice

The following clauses of the Code deal with 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.
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. Keep a record of where all the signs are. 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.

Appendix B sets out requirements for entrance signs and adds some clarification on the words “conspicuous and legible” and “easy to see”. The following extracts are relevant:

As well as the AOS logo, signs at the entrance to the parking area should clearly show the type of parking; and if, when and how any payment should be made.
If one of the following standard wordings applies to your parking area you should use it.
There must be at least one item from Group 1. But no more than three items from Group 1 should appear before, and more prominently than, text from Group 2. You must always mention that terms and conditions apply and say where drivers can find more details – this will usually be on the other notices in the parking area.

Group 1
Pay and display [except/free for blue badge holders]
[x minutes’/hour’s/hours’] free parking [for [business name] customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for [business name] customers only
Permit holders only
Group 2
Charges apply [after this][after x minutes/hours]
Private land
Terms and conditions apply
See the notice [in the car park] for details

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. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.

a). There is no entrance sign to the land where I parked and thus no warning that a driver is entering a managed parking area. A driver cannot therefore be expected to look for other signs, especially in the dark. CPM have stated in their rejection letter that “there is a clear and prominent sign at the entrance of 185 Fleet Road, all signage clearly states the terms and conditions of parking within the restricted area, signage also conforms to the BPA code of practice.” I challenge CPM to provide photographic evidence of the existence of this entrance sign – please see photos 1 and 2 on the attachment below showing the entrance to the land in daylight which show clearly the lack of any entrance sign. As mentioned above, there are 3 signs around the front part of the land where we parked but these are not entrance signs as described in Appendix B of the BPA AOS Code – please see photo number 3 on the attachment showing the signage which is identical in all 3 signs. There is no wording on the signs from Group 1 above – “Permit Holders Only” would be the appropriate choice - so these are therefore not entrance signs but “specific parking-terms signage” as termed by the BPA.

b). None of the signage in the area is lit at night. CPM in their rejection letter have not disputed this point. Furthermore none of the signs are visible in the driver’s eyeline at night using dipped or full beam headlights. Of the 3 signs, one is 7 feet off the ground, the second 8 feet and the third 3 feet. We had not found the latter in the dark as it had been hidden behind two parked cars on the evening in question, and in any event it is not in a position where a driver would be able to see it at night, as it is by the pavement. The other 2 were so high and dark that there was no chance a driver arriving at the entrance or when parking would see either of them, let alone be able to read them at any distance. The one at the back of the park was also obscured by the directional light emanating from a security light at the back of the take-away.

The parking area itself is also not lit (except for the minimal light from the take-away’s security light), and the ambient lighting in the area is very poor as minimal light from street lights falls on it. The whole parking area is therefore very dark – see our photos 5 and 6. The local authority have replaced the street lamps in the last few years with more energy efficient lights that focus light on the street and reduce the spread of light, and this has probably affected the area. If you view CPM’s images, they also show how dark the area is – and please note that the parking sign they show has had to be photographed with flash!

CPM in their rejection letter have stated: “In the hours of low light unless the driver is sure of the restrictions, it is their duty to check for signage. CPM believe it is highly unlikely that you would fail to see all of our warning signs either when driving in or walking out of the car park.” This statement is irrelevant if there is no entrance sign, and ignores the requirement for signage to be lit. The last sentence is ridiculous – given the circumstances of darkness, no entrance sign, no lit signs, looking after small children, I would conversely suggest it would be most improbable that we, or indeed anyone else, would see any of their signs. The onus is on CPM to prove that I saw, read and accepted the terms of their extortionate “contract”.

In summary the lack of signage fails to meet the requirements for signage in the BPA Code of Practice section 18 and Appendix B, and I also argue that CPM fail to have established beyond doubt that I saw any signs at all when parking. Accordingly I request POPLA to uphold my appeal against the PCN.

2. The Parking Charge is unreasonable

This is the relevant section from the BPA AOS Code of Practice:

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.

a). No contract exists. I discuss in b). below whether 19.5 or 19.6 applies in this case, but I must firstly state that there was no contract between me and CPM. I did not see any contractual information on any signs when entering the car park and parking, and therefore at that time I had no idea that any restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. There can thus be no breach of contract and no “contractually agreed sum”.

b). Penalty for breach of contract or contractually agreed fee? The position of CPM is unclear on whether their charge is for breach of contract or a contractually agreed sum. Their rejection letter states that “a breach of the Terms and Conditions of parking occurred” ie a breach of contract, but it also states: “The parking charge forms part of a contract and the terms state that you agree to pay the parking charge fee of £100 if the required restrictions are not met. The parking charge fee is not a pre-estimate of loss to the land-owner.” Their signs state that “Unauthorised parking may result in your vehicle receiving a parking charge notice.”, “Terms of parking without permission - … you are agreeing to pay a parking charge fee”, and “The following fees apply”.

Thus the rejection letter relies on a breach of contract, but the signage and rejection letter also want to treat this as a contractually agreed amount, ie a fee. CPM can not have it both ways.

If the charge is really a fee for services provided rather than damages, such payments are I believe subject to VAT (Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]), but I have received no VAT invoice from CPM nor is there any reference to VAT in their signage or rejection letter. I require them to demonstrate by providing substantive evidence to POPLA that they account to HMRC for the VAT element on these sums. If CPM are unable to do so, then the parking charge cannot be deemed “a contractually agreed sum” or “fee” but must be treated as “damages for breach of contract or act of trespass”. This interpretation has added value if one considers that a contract requires minimally an offer, acceptance and consideration, but in this case there is clearly no offer of parking (as the signs refer to “unauthorised parking” and “parking without permission”) – ie a prohibition on parking. In essence I have unwittingly committed an act of trespass for a brief period of time from which no loss has arisen.

c). The charge is punitive and unreasonable. If the charge is deemed to be a contractually agreed sum, then the BPA state that it cannot be punitive or unreasonable. CPM have chosen the maximum sum stipulated by the BPA with no consideration as to what is reasonable, and I therefore challenge CPM to prove that the fee is not punitive and unreasonable. The Unfair Terms Consumer Contracts Regulations 1999 are relevant, in particular Regulations 5(1) and 5(2).

d). The charge is not a genuine pre-estimate of loss. If the charge is deemed to be damages for breach of contract or act of trespass, I argue that the charge is not a genuine pre-estimate of loss to the landowner. I challenge CPM to provide evidence of the loss incurred, in the knowledge that CPM may only include losses consequential to the breach of parking terms and conditions and must exclude any of their costs of running the business.

3. No authority to enforce charges

This is the relevant section of the BPA AOS Code of Practice:

7.1 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. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary

CPM do not own the land on which I parked and presumably act as agent for the landowner. I assume that CPM have an agreement with the landowner covering their management of the land where I parked, but I question whether it gives CPM the authority to issue PCNs and to pursue third parties for parking charges through the courts. I therefore require strict proof that CPM have the proper legal authorisation from the landowner to contract with drivers and enforce charges in their own name in the courts, by providing POPLA with a full and complete copy of the current signed agreement with the landowner, in an unredacted state.

4. Breaches of BPA AOS Code of Practice

Section 22 of the BPA AOS Code of Practice deals with the operator’s process for dealing with complaints, challenges and appeals, and includes deadlines as follows:

22.8 You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the challenge in writing not more than 35 days after the information required to resolve it has been received from the motorist. It is acknowledged that in exceptional circumstances, an investigation into a challenge may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times.

CPM have blatantly disregarded this requirement. The details are:

PCN issued xxxxxx
Challenge letter sent xxxxxx by recorded delivery.
Delivered by Royal Mail xxxxx.
Rejection letter dated xxxxx ie 53 days later.

I received no acknowledgement letter within the 15 day period and the rejection letter was sent 18 days outside the limit. The BPA website offers Public Advice including FAQs on appealing a ticket, wherein appears the following:

If I make an appeal to the operator, how long will it take to be resolved?

The BPA's Code of Practice is very clear that all complaints and appeals made to the operator must be dealt with promptly and efficiently. The operator is required to acknowledge your appeal within 14 days of receiving it, and they must respond with a full explanation of their investigation with 35 days.


I assume that “with” in the last sentence should read “within”. The strong use of the imperative in 22.8 and the FAQ must mean that the BPA require operators to take this seriously, and I consider it a major breach of the Code by CPM.

Section 4.1 requires all AOS members to “sign a declaration agreeing to keep to the Code and its principles”, while section 7.1 states that the contract with the landowner “must say that the landowner requires you to keep to the Code of Practice”. The BPA is also required to carry out regular audits of its members’ operations to ensure compliance. Nevertheless CPM is guilty of material breaches as demonstrated in points 1 and 4 above, and there may be others evident when CPM’s evidence is presented.

Conclusion

Based on the foregoing, I request POPLA to uphold my appeal against the PCN issued by CPM. I understand that I should receive the evidence pack from POPLA or CPM 7 days before the Appeal is heard, and that I will be given the opportunity to comment on the evidence provided by CPM.

NB Please also see the Attachment which contains photographic evidence.


I will attempt to upload the attachment as a separate post. As we are going away next Monday, any comments before then will be gratefully received.

tedjums

I have attempted to copy and paste photos but the site will not take them. There are however photos of this site on dodo24 or Cazador threads. My images show the entrance with no entrance sign and the overall parking area, both in daylight, one of the specific parking-terms signs, and 2 shots of the area at night.


If there is a simple way of showing the photos, I will do it, but I do not belong to any photo upload sites.

bod1467

tedjums wrote: »

but I do not belong to any photo upload sites.

Simple solution - join one. Then post broken links in a reply here.

/website.name/path/to/image.jpg

Coupon-mad

Don't worry - I recall Cazador's and dodo24's threads & pics and the parking sign is next to an old clamping sign isn't it? I would mention that as well:

''We discovered three notices about not parking: one 7 feet high off the ground on a wall to the left of the entrance, one 8 feet high at the rear of the land and one to the right 3 feet high which had been obscured from our sight in the dark by two parked cars. There is also an old sign about clamping which has been illegal for 18 months, so even if I had seen the signs (which I did not) it would have been reasonable to assume that these signs were not current and not relevant as they were unlit, unreflective and out of date as regards the law and clamping.''


Your appeal is good, nothing wrong with it being long; it's genuine, not a template and is well-researched - and IT WILL WIN.


:T

tedjums

Thank you to Coupon Mad for your comments - I don't know how you have the time do what you do for us.


You are correct about the clamping sign - I will retake my photo to include it and add your wording. I assume then that you are happy with my section 2 re VAT and GPEOL? - I must admit I found this part the most difficult to get to grips with.

tedjums

Sorry, another question I meant to ask earlier - has anyone heard of UKCPM taking anyone to court to recover a parking charge? Just wondered...

Coupon-mad

tedjums wrote: »

Sorry, another question I meant to ask earlier - has anyone heard of UKCPM taking anyone to court to recover a parking charge? Just wondered...

Can't see them here at all:

https://forums.moneysavingexpert.com/discussion/4806028

I don't know how you have the time do what you do for us.

A combo of multi-tasking like lots of women do (I get bored watching TV so have to come here as well - and at work when it's a tea break)...and I don't sleep much...!

I assume then that you are happy with my section 2 re VAT and GPEOL? - I must admit I found this part the most difficult to get to grips with.

Yep, I just looked to check you had the magic words 'no GPEOL' which is what POPLA will look for. And your detailed points about the charge not being a real contractual fee, made sense.

Umkomaas

Here's a more detailed list of PPCs who have taken court action - Oct 2012 to Sept 2013. Becoming a little dated now (I'm not aware of a more recent one), but it does give a reasonable indication of the litigious potential of individual PPCs.

https://www.whatdotheyknow.com/request/179544/response/444525/attach/3/A%20FINAL%20REPLY%20TO%20LEWIS%2085865.doc

Note that the highly litigious UKCPS is a different PPC to yours (it's not a typo).

HTH.

Stroma

The problem with a foi request is that it's always in the past and cannot be kept current.

tedjums

Coupon-mad said: "Don't worry - I recall Cazador's and dodo24's threads & pics and the parking sign is next to an old clamping sign isn't it? I would mention that as well:"


I have been back and re-photographed the sign with the clamping sign included. I also found another clamping sign at the site. I have therefore amended the wording as follows:


At the end of Background:
"one to the right 3 feet high which had been obscured from our sight in the dark by two parked cars. Immediately above the latter is an old sign about clamping, which has been illegal for 18 months, and another at the back of the parking area."


and added a new point in section 1:

c). The signage is misleading and out of date. The old signs about clamping, clearly seen in photo 3 in the attachment, threaten action that has been illegal for 18 months, so even if I had seen the signs (which I did not) it would have been reasonable to assume that these signs were not current and not relevant as they were unlit, unreflective and out of date as regards the law and clamping.


Does that seem ok?


Finally (I hope), is it etiquette to address the note to the Assessor and sign it at the bottom with Yours faithfully? I see your sticky has this but the POPLA form itself requires a signature. Or purely matter of choice?

tedjums

I'd be most grateful for a response to my above post. I am hoping to get my appeal in the post today.


Many thanks