UKCPS Parking Ticket at Block of Flats - POPLA help needed

Coupon-mad

Am bumping this for someone else to convert your links as I'm at work and can't click to tinypic here.

Hot_Bring

http://i62.tinypic.com/ereryo.jpg
http://i58.tinypic.com/2z7ke4l.jpg
http://tinypic.com/view.php?pic=2ujjqkk&s=8#.UzrxFlxN1uY
http://i60.tinypic.com/2ynq99l.jpg
http://i59.tinypic.com/2e5v21j.jpg

Coupon-mad

Why would they need parasites infesting a gated car park? Pathetic protection racketeering goes on in residents' car parks up and down the country, leeching off residents and their visitors. Just unnecessary profiteering, this is a disgrace.

Looks like that sign might be a 'contractual fee' wording one even though it's not really. Easy to beat with a POPLA version like this (the version below was written when a car was parked when it was dark, and I have adapted it a bit for you already - up to you to be sure it's all correct though):



Dear POPLA,
I am the registered keeper & this is my appeal. I am not liable for this parking charge:

1) Lack of signage - no contract with driver
Any signage was inadequate, not compliant with the BPA Code of Practice and it was not prominent. I see from pictures that the sign is unlit - and in darkness no signs are visible at all. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed to the side where it would be hidden by any parked car in the adjacent bay.

BPA CoP Appendix B: Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads.

I have checked and the unseen sign says 'you are agreeing to the following:' andthe words immediately after the colon are: 'which may be enforced at all times. Disabled Badge holders and motorbikes not exempt'. It was neither a motorbike nor disabled car. A separate lower panel in small, cluttered font mentions 'a parking charge...' but this does not follow the sentence about 'agreeing' nor does a driver 'agree to pay' anything.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and therefore, no contract.

2) Lack of standing/authority from landowner
UKCPS has no title in this land and, I believe, no BPA compliant landowner contract assigning rights to charge a contractual fee. If the contract mentions PCNs for 'breach' then UKCPS are not authorised for this business model.

I put UKCPS to strict proof of the contract terms with the site landowner (not an individual lessee or managing agent as they are another third party). A site agreement/witness statement saying they 'can issue PCNs' will not suffice; this is not the issue. The whole unredacted contract is required to show what is authorised by way of charges and whether only for breach - and whether UKCPS have the assignment of title or standing needed to pursue the matter in the courts. BPA CoP para 7.1 & 7.2 dictate the contract wording. - I suggest that UKCPS cannot show they have a BPA compliant contract.

3) NTK - no keeper liability
On the Notice to Keeper, the period of parking is not shown, only the time of issue.

Schedule 4 para8(1) ''A notice which is to be relied on as a {NTK is given} 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.
(c) state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice''...'period of parking' is omitted.

The NTK is a nullity so no keeper liability exists.

4) Unfair terms - Unenforceable Disguised Penalty, no GPEOL
The sign disallows unauthorised parking - it does not allow any parking for a fee. This is not a contractual sum at all, despite the wording (if so, there would be a daily rate/time limit, a VAT invoice and a payment mechanism). Notwithstanding the lack of any reason for any parking operation to be foisted upon the residents in this gated site, the predominant purpose of the alleged 'parking operation' here is clearly to deter breach. So without a genuine pre-estimate of loss calculation, this is an unrecoverable penalty.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

UTCCR 1999:-
''5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

The OFT on Unfair Contract Terms:
18(a): Unfair financial burdens
'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

It would normally be for the owner to claim for loss (nothing - the car was parked with a permit displayed and with the permission of the flat owner). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'. The charge is neither a genuine pre-estimate of loss nor a genuine offer regarding any 'contractual fee for parking'. It is an unenforceable disguised penalty.



****************************************************


Obviously you'd need to check whether the above is the same wording on that useless low down sign. Could you get a pic in daylight so it's readable but also a pic of it in darkness (unlit and unreadable) for your POPLA appeal - if the car was parked after dark? And maybe a pic taken from driving seat height, showing a car in front of the sign, so you can show POPLA it cannot be read at all?!

Guys_Dad

Nice picture of flower bed but the wording on the signs may be more helpful for point 1.

rainbowmuppetgirl86

Thanks Coupon-mad for the adaptable POPLA letter - much appreciated. I will look into getting at least a close up of the sign when I am next in Leeds but getting pictures from my car may be more tricky as my friend and his g/f are both away so it will be difficult for me to gain access to the car park as I won't have their fob etc.

Guys Dad - lol! Yeah, the place does have nice flower beds, doesn't it?! But really, the picture was to illustrate the front (none gated) parking area and to show that the parking signage is inadequate here too and you don't have to drive through the front bit to get to the gated parking area so would not see the sign there either.

Thanks for the responses.

rainbowmuppetgirl86

Hi all,

Just wanted to share the good news with you that my PCN has been cancelled by the PPC UKCPS without having to go to POPLA just from my two letters with guidance from this forum above - so thank you very much for all the help. The letter I received this week is typed below:

PCN Cancelled

Dear X

Thank you for you appeal regarding the above parking notice charge.

After review of your parking charge detailed above we have decided to cancel. This is a one time gesture of goodwill and will not be repeated on future occasions. Please be assured this matter is now closed on our systems.

UKCPS Ltd provide national car parking solutions. We are DVLA and Data Protection registration; SIA approved and members of the British Parking Association (BPA).

Regards

UKCPS Appeals Department RR

trisontana

I can imagine the "gesture" you would like to make to UKCPS! Well done anyway.

Coupon-mad

Glad to see UKCPS bailed out again. They may well have found this thread.

rainbowmuppetgirl86

I am very happy with the outcome of course but had been fully expecting to go to POPLA as they rejected my first appeal and I sent no additional information so was surprised with my letter.

My friend has just got a PCN so I have referred her to the forum and as I am visiting her I will give her a hand with it too

Keep up the good work guys and feel free to add this to the success thread