received NTK UKCPS question about appeal

Coupon-mad

Yes you certainly could email the BPA to that effect as the NTK is lying, the thing about 'stolen' is utterly misleading and wrong. Send the BPA and DVLA a copy and ask why they allowed to lie like this? Email addresses in post #6 of the NEWBIES thread.

Also only a couple of days ago someone else with a UKCPS ticket sent off their POPLA appeal mentioning the lies on the NTK as well as the usual winning points - so search for 'UKCPS' to find that recent thread and you'll have your POPLA appeal practically pre-written for you from that other thread!

over123

Is this the appeal your talking about?


Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to UKCPS to show as much) there was no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. 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 no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''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''.

3) Lack of standing/authority from landowner
UKCPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKCPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKCPS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKCPS are entitled to pursue these charges in their own right.

I require UKCPS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

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.
(g)inform the keeper of any discount offered for prompt paymentand the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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 charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.





Should I just send that off (when I get the code) but take out the bits about the lack of signage (as I have been back to the car park since and there are quite a lot of signs up, although I never noticed them before).

Under section 4 of this above appeal it says: Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

Should I also rephrase this because the complaint here is that the time has not elapsed, whereas my 28 day time period HAS in fact elapsed. Not completely sure what they are saying that is a lie though? That the keeper can only appeal after the 28 days if the car is stolen?

over123

i've had a look on the BPA code of practise and I don't understand what they have done wrong in saying the time to appeal has elapsed, and that the keeper can only appeal if the car was lost or stolen. I want to write an email of complaint to the BPA as recommended, but can't do so as I don't understand what I am actually complaining that they have done.

Coupon-mad

Should I also rephrase this because the complaint here is that the time has not elapsed, whereas my 28 day time period HAS in fact elapsed. Not completely sure what they are saying that is a lie though? That the keeper can only appeal after the 28 days if the car is stolen?

The keeper has the same right to appeal as the driver does and the keeper's time to appeal only starts with the NTK. So you can see why the letter is wholly wrong! YES it is a lie, the keeper's 28 days runs from the NTK and they can appeal on any point they like (of course).

The first appeal to send to UKCPS is the template in the NEWBIES thread. Send it by post to UKCPS if you haven't appealed yet. DO NOT change it.

And when you get to POPLA stage, do NOT remove the thing about signs, always allege to POPLA that the signs are unclear (of course they have signs up, they have to, so don't be put off making them prove that to POPLA). What you must do is check, is stuff like this true in your case?

- 'Their sign states the charge is for 'not fully complying with the conditions'...
DOES IT SAY THAT?

- 'I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. '
WAS IT DARK WHEN THE DRIVER IN YOUR CASE, PARKED? IF NOT - WHEN YOU GET TO POPLA STAGE - YOU MUST TWEAK THE VERSION YOU FOUND WHICH IS A GOOD ONE BUT NEEDS TO SUIT YOUR CASE.

over123

Ok, I understand. Thanks so much for the help by the way! This is the email that I have drafted to the BPA:


Dear Mr Clark,

I am writing to inform you that I have received my first letter from UKCPS, addressed to "Keeper/Driver/Hirer" stating that my 28 day time period within which to appeal has elapsed, and that I am therefore no longer able to make an appeal unless my car was stolen or or sold at the time of the event.

I am writing to you about this because this was the first notice/letter I have received from UKCPS, and therefore I know that I am within my rights to 28 days from that date to appeal, as is stated on the POPLA website. The letter was received on the 28th April. I am therefore still within my rights to appeal, although this notice is falsely informing me that I am not, and is therefore wholly wrong.

I am complaining as a result of my disappointment with this companies failure to comply with standard codes of practice. I look forward to hearing back from you regarding how you will be able to address this issue.

Yours,
Sophie Reiss


Hopefully that might help!