UKPC and DMG property

morfio

Hi guys,

Sorry I hadnt seen the replies! Have had an interesting response from UKPC!

First of all @ TheDeep - tenant of a house with a dedicated space and visitors pass from the landlord - as part of the rental conditions - no purchasing of tickets etc

@umkomaas - yep have had a letter now from them as a rejection of the appeal and a very long rebuttal!

Am about to post a letter I received from UKPC in response to the appeal letter I copied from here - would be interested in hearing your opinions guys

Thanks again

The_Deep

... tenant of a house with a dedicated space and visitors pass from the landlord - as part of the rental conditions - no purchasing of tickets etc

You appear to have the legal leasehold right to "quiet enjoyment" of your property. They may be committing an offence under The Landlord and Tenant Act if they persist.

You can, if you wish, tell them to swivel. However, if you engage them you can cost them money, question, contest, argue, appeal, threaten.

The world is your bivalve, they are not the sharpest knife in the box.

http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

Coupon-mad

Am about to post a letter I received from UKPC in response to the appeal letter I copied from here - would be interested in hearing your opinions guys

You don't need to show us if they have offered POPLA stage and rejected your appeal - or have they cancelled the PCN 'as a gesture of goodwill' and claimed it was an admin error?!

morfio

@coupon mad - it is a two page long response rejection of the appeal - point by point.
I'm having problems uploading a pdf/converting it to plain text to copy it here.

I think the long and short will be having to do a popla appeal. Just thought it interesting that they are responding in detail.

@TheDeep - thats good to know! on the appeal rejection they keep mentioning the loss to them etc and I couldnt see how there is a loss.

morfio

Finally managed to convert it.
Here is the response to the appela letter - I will copy the popla template and appela to them next - I just thought the response to be interesting and still commenting on the loss to them etc.

---

vvvvvvv

---

UK PARKING CONTROL LTD



Thank you for your appeal. Each of your raised points (listed as a-f)) will be addressed in turn:

a)Your parking charge does represent a genuine pre-estimate of loss. When you parked in contravention of the parking restrictions on site, your contract with UKPC was breached. Losses to UKPC have stemmed from this reach, for which UKPC must be compensated. Our parking charge sums have been calculated to reflect a genuine pre-estimate of these losses.

b)The site in question has sufficient and clear signage. On the balance of probabilities, the signage and thus the terms of parking were clearly seen and understood. The predominant purpose of the charge is to compensate UKPC for its loss. The assertion that the predominant purpose of UKPCs charges is to deter is wholly Unfounded.

c) UKPC has contractual authority from the landowner to issue parking charges on site. Naturally, this contract is commercially sensitive and will not be disclosed in response to unsubstantiated suspicions.

d) All of UKPCs notices comply with the Protection of Freedoms Act 2012, the BPA Code of Practice and all other applicable laws and regulations.

e) A contract cannot be simply denied, after it has been validly constituted and then breached. The offer for contractual relations is provided by the sufficient and clear signage on site. This offer is accepted by conduct when a motorist decides to park on site. Obvious consideration flows from both parties-the provision of a parking place from the parking operator and the promise to be bound by parking restrictions by the motorist.

f) lf is denied that you have been given an Unlawful and "Unsolicited invoice. YoU have been legally issued with a parking charge notice, in line with the Protection of Freedoms Act 2012 and the BPA Code of Practice. Your formal challenge and drop hands' offer are both Understood but respectfully rejected. UKPC takes its duty to mitigate its losses very seriously and strives to do so. However, your offer of 18 p.h plus other expenses/damages for your time, if UKPC continues to pursue its compensation, is unambiguously rejected.
It is reminded that The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the implementation of the EU Directive on Consumer Rights) will not aid you in escaping liability Under your parking charge. The contract between UKPC and yourself has already concluded and all services (the provision of d parking space) have been supplied. There are no new obligations stemming from this contract. Attempting to cancel this contract via the Act is thus superfluous. In any case, the breach and loss to UKPC created by yourself occurred before this attempted cancellation. UKPC is entitled to pursue liquidated damages for this breach of contract to compensate for the loss it has suffered. There is nothing in these Regulations that precludes acceptance of terms of parking by conduct. Section 9 of the 2013 Regulations does state that changes to a contract must be expressly agreed, which may be what you are referring to, though it is irrelevant to the present situation.
A reply to your appeal does not represent acceptance of your raised points or any other offer. Your appeal is wholly rejected and it is Urged that you make payment for your lawfully issued parking charge.
We appreciate that this is not the outcome you will have hoped for. Unless you have any additional information that you have not already brought to our decision this decision is final.
In light of the contents of this letter you now have d number of options:
l. Pay the parking charge detailed above at the reduced rate of £60; to UK Parking Control Ltd. PLEASE REFER OVERLEAF FOR PAYMENT OPTIONS AND ADDRESS DETAILS,
2. Make an appeal to POPLA The Independent Appeals Service, POPLA, PO Box70748, London, ECIPlSN within 28 days of the date of this letter or by making an appeal online at https://www.poplaorg.uk. Please note that if you wish to appeal to POPLA, you will lose the right to pay the charge at the discounted rate of £60 , and should POPLAs
to LA Parking
Control Ltd FC BOx - 27 Oxbridge, Midlesex UB8 sylla,
-

morfio

Hey all, before I submit to Popla an appeal based on the advise on here is there anything I should include? Many thanks

ampersand

morfio - you must remove the identifiers heading that long unformatted paste post#16.

No popla no. or ref. no should be left in.

re:
'Make an appeal to POPLA The Independent Appeals Service, POPLA, PO Box70748, London, ECIPlSN within 28 days of the date of this letter or by making an appeal online at www.poplaorg.uk.'
Link is broken: Server Not Found.

Near illiterate, inaccurate gobbledygook from UKPC, if you have copied and pasted.
#
Check that the popla no is valid here:
http://www.parkingcowboys.co.uk/popla-code-checker/

Read newbies stickies again thoroughly, then this Thread, especially #9:
https://forums.moneysavingexpert.com/discussion/5137866

Also, aren't you awaiting 2 popla refs, not one?

Deal with each separately. Keep proof of posting, as #6.

Did you complain as per #8 to Steve Clark, citing fc's #7 reasons?

bod1467

At first glance it looks a valid code ... at least the 7th digit is a 5 anyway, so it is a 2015 code.

OP - If in any doubt, post your POPLA appeal wording here first for comment/critique before sending to POPLA.

morfio

Whoops, sorry @Ambersand - will remove it now.

I had a response to one saying the appeal had been successful, the other response is the above ( badly copied from pdf).

I will write a popla appeal now and post it up for you to have a look at ( Thanks (@bod1467)

Thanks for the guidance through this everyone.

morfio

I was issued with a parking ticket on 11.12. 2014 but I believe it was unfairly issued. I will not be paying the demand for payment for the following reasons:


THE ALLEGED CONTRAVENTION DID NOT OCCUR
Quite simply, the parking attendant got it wrong and the vehicle was not parked inappropriately at the time the ticket was issued. This is due to the fact the car park is for residences only of which I am one with the appropriate pass, that was displayed on the seat of the car.


UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. This means no contract can be formed with the landowner and all tickets are issued illegally

I contend that the signs and any core parking terms UKPC are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

UKPC Ltd’s legal capacity to enforce/issue Parking Charge Notices;
Firstly I would like to point out that, in their correspondence, UKPC have not produced any evidence to demonstrate that they have the necessary legal capacity to charge the driver of a vehicle using the car park. Nor that they have any proprietary interest in this particular piece of land in Bingley Court, Rheims Way.

UKPC do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice, UKPC have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether UKPC have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract given recent case law such as Somerfield -v- Parking Eye.
In addition I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."
In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

UKPC also make reference in their notice that they will pass this matter on to "their debt recovery agents....and further charges will be claimed if court action is taken.." this makes no reference to the Landlord at all.

I further contend that UKPC have failed to show me any evidence that the camera in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.


The charge is disproportionate NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.

According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £100 (SHOULD I WRITE THE COST OF THE PCN ORIGINALLY eg. 60 or now since I have gone to PCN 100) charge being asked for far exceeds the cost to the landowner as there was no parking charge levied, the car park is “free”.

On the date of the claimed loss it was only at 75% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can UKPC lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the notice did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if UKPC do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss, which is null as the landlord provided passes for the vehicle to use a bay in this car park and since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £25.00 for all day parking. This is all the more for the additional charges which operator states accrues after 28 days of non-payment. This would apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.



NO CONTRACT WITH THE DRIVER

There is no contract between UKPC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.


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. In particular, 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" and 5(2) states: "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."

UNREASONABLE

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.”




BPA CODE OF PRACTICE BREACH - NO REASONABLE GRACE PERIOD ALLOWED

The BPA Code of Practice indicates at paragraph 13.4 that the Operator is required to 'allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.'
They are also required to allow time for a car to drive into the car park, find a space, park, alight and help passengers out, as well as read the signs and decide whether to stay (without any enforcement applying to this time). And yet in this instance a fake PCN has been issued. As the signage in the car park provides no indication of any 'grace period' I say UKPC allowed no reasonable grace period at all.


UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

UKPC have failed to comply with the BPA Code of Practice in light of this and they have further attempted to bully me by “ ..Please note that if you wish to appeal to POPLA, you will lose the right to pay the charge at the discounted rate of £60, and should POPLA's decision not go in your favour you will be required to pay the full amount of £100. If you opt to pay the parking charge you will be unable to appeal to POPLA.” “If you choose to do nothing the parking charge will increase...and the matter passed to our debt recovery agent... at which point you will be liable to pay an additional charge at £60...further charges will be claimed if Court action is taken against you....any unpaid Court Judgement may adversely affect your credit rating".

In addition there is also no name at the bottom of the letter rather a department, therefore making contact to rectify the matter even more difficult.

SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.