UKPC Flats Parking - Valid permit - POPLA Appeal

rps2

Hello All,

We have a private parking in the flats where we live. Its managed by UKPC and on one occasion they have given me a parking ticket ( the parking permit was displayed ). Reason being "Not parked in marked bays". The reason for not parking in bays is my own parking as taken up by someone else so I had no other option. I will attach the picture to give you an idea of the situation. Do let me knows. I will be preparing the POPLA appeal meanwhile and submit that for your review.

To add to above on a daily basis there are people who have to park outside the allocated bays as their bays are used by someone else.

Please ask if you have any questinos.

Thanks !!

rps2

hxxp://tinypic.com/m/igyk8x/2
hxxp://tinypic.com/m/igyk91/2
hxxp://tinypic.com/m/igyk92/2
hxxp://tinypic.com/m/igykau/2

rps2

Response from UKPC:
Thank you for your recent communication in relation to above parking charge.
We have investigated your appeal based on information you have submitted and confirm that this Parking Charge was correctly issued because there are sufficient sign at XXXX warning drivers that there is no parking outside of designated baye, this includes parking across two bays.

Our Appeals process is now concluded, you may now pick one of the following options.

1..
2..
3..

pogofish

I hope you are not appealing on those grounds? If so, its doomed to failure.

Stick to the proven appeal points outlined in the Newbies sticky - POPLA don't do mitigation.

rps2

Below are the points of appeal collected from the forum...
Pls advice if anything needs to change/ added.

1. The Charge not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.

The driver has a UKPC parking sticker which is visible on the screen in the photo taken at 16:17:41 & 16:17:49 in the top right corner of windscreen therefore 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 by a driver who was fully authorised to be parked at that site.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2. Unclear Signage / No contract with driver

A lack of signs at the entrance to a car park, and unclear wording, creates no contract. UKPC signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B worded below (Mandatory Entrance Signs) UKPC has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival (see attached picture for car park entrance with no sign).
18.2 Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet 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 follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
The sign as shown in the picture from UKPC is fundamentally temporary in nature which allows it to be moved or be hidden behind other cars. The sign is not put up on a permanent structure but some temporary barriers. Hence it is not prominent and not really visible and readable if there are cars parked in front of it. When I parked my car I never saw this and only sign in the car park. As such they don’t make it clear their association with the car park and its boundaries. As you can see in the photographs the sign is not readable at all. 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 sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''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

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). UKPC has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. 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 UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 BPA Code of Practice and does not allow UKPC (specifically) to issue proceedings for this sum for this alleged contravention in this car park. UKPC have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of UKPC contracts. In my case with this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. 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. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.

4. Unfair Terms


The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, 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.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, 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 for POPLA to inform UKPC that the charge is dismissed.

rps2

rps2 wrote: »

http://tinypic.com/m/igyk8x/2
http://tinypic.com/m/igyk91/2
http://tinypic.com/m/igyk92/2
http://tinypic.com/m/igykau/2

Can someone post the correct links for above.

Half_way

a few questions:
Does your lease/rental agreement allow you to use a parking space?
Does the lease/rental agreement mention anything about permits?
Do you think that UKPC generaly provide a good service and do you agree to them patrolling the car park/your parking space ( and others)
or would you rather that they be go rid of?

Coupon-mad

Did you give away who was driving in your first appeal? DOH! People keep doing this and a POPLA appeal was lost because that point was thrown away!

rps2

Half_way wrote: »

a few questions:
Does your lease/rental agreement allow you to use a parking space?

- No mention of space but we are allowed to use the space.

Does the lease/rental agreement mention anything about permits?

Not mentioned but we have permit ( which is in picture right top corner of windscreen)

Do you think that UKPC generaly provide a good service and do you agree to them patrolling the car park/your parking space ( and others)
or would you rather that they be go rid of?

No they don't provide a good service as if someone uses my space they cant do anything. I spoke to one of their attendants and he said if someone is parked within the bays and doesnt have a permit he cant issue a ticket. Cars are regularly parked outside of bays maby be because of extra cars or someone else using a owners space.
Also UKPC doesnt have a way/process to determine if someone has parked in his allocated bay.

Considering the little value they add its worth not having them at all.

rps2

Coupon-mad wrote: »

Did you give away who was driving in your first appeal? DOH! People keep doing this and a POPLA appeal was lost because that point was thrown away!

Yes , this is a residential parking were we park daily. Also I spoke to couple of attendants and they said they (before I was issued the notice) that they cant issue a notice if the cars is parked outside the bay and has a valid permit. I mentioned this to UKPC in my appeal to the extent that I can recognize the attendant if they can provide the photos. But they just don't reply on the points that you appeal.

The attendants also admitted that there is pressure on them to visit the site regularly and issue a ticket.

Even now cars are regularly parked outside of the bays and they are not being issued a notice.

Dublindel

UKPC
3 Gregories Court
Gregories Road
Beaconsfield
Buckinghamshire
HP9 1HQ