UKPC Parking Charge should i pay?

chas5671

Good Point The Deep.

The draft of my POPLA appeal is below. Please can someone offer any feedback? I used the template as suggested but have omitted one point which they had down as number 4 as follows because the notice to me had Issue 'Time' and 'Time First Seen' therefore I am not sure if it can be included even if I re-word it accordingly....

4. Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012
The 'period of parking' is not shown on the NTK, only the time of issue of an alleged PCN. Therefore the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4. According to Schedule 4 para 8, the Notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
The NTK is a nullity so no keeper liability exists. '

Also point 2 re the signage. Although it is a residential area and therefore you don't have to pay to park the entrance sign regulations stipulate that it should mention charges apply (after this....) I am not sure if it is relevant and therefore can be included with regards to the 'penalty' levied if you over stay 48 hours or return within 14 days.

My appeal:

Re: UK Parking Control PCN, reference code xxxxxxxxxx
POPLA Code: xxxxxxxxxxx

I am the registered keeper of the vehicle, ....... and I wish to appeal a recent parking charge from UK Parking Control (UKPC). I submit the points below to show that I am not liable for the parking charge:


1. No standing or authority to pursue charges, nor form contracts with drivers
2. The signage was inadequate so there was no valid contract formed
3. Unreasonable/unfair terms
4. No Creditor identified on the Notice to Keeper
5. No genuine pre-estimate of loss


1. No standing or authority to pursue charges, nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This notice has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that UKPC merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put UKPC to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between UKPC and the landowner. This is required so that POPLA and I can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


2. The signage was inadequate so there was no valid contract formed.

The entrance sign breaches Appendix C of the BPA Code of Practice as it does not refer to ‘Terms’ as well as Conditions apply. It does not refer to charges apply after 48 hours or no return within 14 days. The BPA states 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. If not, you may alter the wording to fit the situation. Words in square brackets may be left out
Group 2
Charges apply [after this][after x minutes/hours]
Terms and conditions apply”

In addition I require UK Parking Control to state the height and position of each sign in their response.
The conditions sign is placed high up. 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 signs intended for residents are identical to those intended for visitors with the exception of one addition. A small icon and even smaller text as follows: '48 hour maximum stay (no return within 14 days in visitors bay)' and therefore open to interpretation that they are the same.

No consideration/acceptance flowed to and from both parties, so there was no contract formed.

3. 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 that cannot be seen when parking, 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.”

4. No Creditor identified on the Notice to Keeper

The ‘Notice to Keeper’ does not comply with paragraph 9(2)(h) of Schedule 4 of the POFA 2012 in that it does not identify the creditor. Whilst the Notice has indicated that the operator requires a payment to be made to UKPC, there is no specific identification of the Creditor, who may, in law, be UKPC or some other party. The POFA 2012 requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and the Notice does not.

5. No genuine pre-estimate of loss

The BPA code of practice states:
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.

The UK Parking Control Notice to Keeper alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.

The British Parking Association Code of Practice uses the word 'MUST'. 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.

I have not received any breakdown of how UKPC calculated there charge and so therefore require UKPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. 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.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some woolly statement that merely claims that charges were calculated to compensate UKPC for their “losses”.

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

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.

In addition, the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. The UKPC make reference to the Supreme Court’s decision in the ParkingEye vs Beavis case and how they believe it will have an impact on the outcome of this POPLA appeal. I would argue that Mr Beavis overstayed in a busy commercial car park which Parking Eye paid the Landowner £30,000 a year to farm.

The UKPC have no financial interest in this private residential car park, and there is no commercial justification for this charge.
If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case should it have any bearing on the outcome.

This concludes my appeal and I respectfully request that my appeal be upheld and the charge be dismissed.
Yours Sincerely,

chas5671

I wonder if anyone has had a chance to glance over my draft of the appeal please? I appreciate it is a lot to run through.

It's not urgent as yet as I still have time to submit it. I haven't had a reply from the landowner via email and plan to send a chaser possible a follow up letter today

Umkomaas

I've skimmed read this and you seem to have the main bases covered, including the siting of the GPEOL section at the end of the appeal, followed by the recommended final paragraph from the NEWBIES sticky.

In terms of what you intend leaving out - my advice is don't, let the PPC prove otherwise, assume nothing, otherwise you're doing their job for them.

Your GPEOL section is a bit outdated insofar as the BPA CoP has been changed to take out the GPEOL requirement to one of 'proportionality and commercial justification'. This was effective from October 2014, so unless your ticket predates this (which I doubt), you will need to alter your statement on this.

This is what the CoP now says in this context:

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 proportionate and commercially justifiable. 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.

hoohoo

The NTK is also invalid because the reason is wrong. The contravention is returning within 14 days, not overstaying.

Northlakes

I'm not as expert as some of the posters on here but if you have a bit more time to further strengthen your appeal I think it will be better both for you and for others who are plagued by UKPC in residential parking areas.

Did you ask your friends whether in their lease any mention was made of parking permits? This is a crucial question, as no mention of this you could then state 'The driver' was parked with the full permission and licence of the tenant/owner who's tenancy agreements/ deeds (Delete as appropriate) gives no mention of any necessity for any kind permits/tickets to be displayed on any vehicle parked in the communal parking areas.
I contend that UKPC are disturbing the owners right to quiet enjoyment of their property. I put UKPC to strict proof they have any contract which overrides these interests.

Finally in your appeal take out on the bit on the final sentence 'and the charged be dismissed'. It sound like a criminal matter rather than unsolicited invoice.

chas5671

Thank you all

Umkommas I have amended the papagraph 19.5 and will include all points to question. As you quite rightly say, POPLA can make the decision as to whether it is relevant or not.

Hoo Hoo . With regards to the NTK being invalid because the reason is wrong,I propose to include a new paragraph as follows:

5. Non Compliant Notice to Keeper.
The reason cited for the penalty is 'Parked for longer than the maximum period permitted.'
This is inaccurate. The conditions on the notice state: '48 hour maximum stay (no return within 14 days in visitors bay)' The issue time of the Parking Charge is 16:58 24-5-2015, time first seen 17:21 10-05/2015. Therefore the alleged reasonable cause to believe a breach had taken place was the contravention of returning within 14 days, not overstaying

Northlakes I will certainly enquire re the lease whether it has mention of parking permits.

All I know is that the residents did say that the introduction of UKPC was not what the residents wanted

chas5671

This is the revised edition. Any feedback would be appreciated:

My appeal:

Re: UK Parking Control PCN, reference code xxxxxxxxxx
POPLA Code: xxxxxxxxxxx

I am the registered keeper of the vehicle, ....... and I wish to appeal a recent parking charge from UK Parking Control (UKPC). I submit the points below to show that I am not liable for the parking charge:


1. No standing or authority to pursue charges, nor form contracts with drivers
2. The signage was inadequate so there was no valid contract formed
3. Unreasonable / unfair terms
4. No Creditor identified on the Notice to Keeper
5. Non Compliant Notice to Keeper.
6. No genuine pre-estimate of loss

1. No standing or authority to pursue charges, nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This notice has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that UKPC merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put UKPC to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between UKPC and the landowner. This is required so that POPLA and I can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


2. The signage was inadequate so there was no valid contract formed.

The entrance sign breaches Appendix C of the BPA Code of Practice as it does not refer to ‘Terms’ as well as Conditions apply. It does not refer to charges apply after 48 hours or no return within 14 days. The BPA states 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. If not, you may alter the wording to fit the situation. Words in square brackets may be left out
Group 2
Charges apply [after this][after x minutes/hours]
Terms and conditions apply”

I require UK Parking Control to state the height and position of each sign.
The sign that sets out the terms and conditions is placed high up. 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 signs intended for residents are identical to those intended for visitors with the exception of one addition. A small icon and even smaller text as follows: '48 hour maximum stay (no return within 14 days in visitors bay)' and therefore open to interpretation that they are the same.

No consideration/acceptance flowed to and from both parties, so there was no contract formed.

3. 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. 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 car was parked under the instruction of a resident, parked in good faith displaying the Visitor Permit and in a Visitor bay.

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.”

4. No Creditor identified on the Notice to Keeper

The ‘Notice to Keeper’ does not comply with paragraph 9(2)(h) of Schedule 4 of the POFA 2012 in that it does not identify the creditor. By definition “the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle" Whilst the Notice has indicated that the operator requires a payment to be made to UKPC, there is no specific identification of the Creditor, who may, in law, be UKPC or some other party.

5. Non Compliant Notice to Keeper.
The reason cited for the penalty is 'Parked for longer than the maximum period permitted.'
This is inaccurate and misleading. The conditions of parking state: '48 hour maximum stay (no return within 14 days in visitors bay)' The issue time of the Parking Charge is 16:58 24-5-2015, time first seen 17:21 10-05/2015. Therefore the cited ‘reasonable cause’ to believe a breach had taken place was the contravention of returning within 14 days, not overstaying. In addition the ‘Notice to Keeper does not comply with paragraph 8(e) part (ii) of Schedule 4 of the POFA 2012 in that the UKPC does not know the name of the driver or address and it has not been stated, I quote:”state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper
(i)to pay the unpaid parking charges; or (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.” All correspondence with the UKPC has been with the Registered Keeper.

6. No genuine pre-estimate of loss

The BPA code of practice states:
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 proportionate and commercially justifiable.

The UK Parking Control Notice to Keeper alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because this is a residential area without parking or commercial revenue to be lost.

The British Parking Association Code of Practice uses the word 'MUST'. 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.

I have not received any breakdown of how UKPC calculated there charge and so therefore require UKPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. 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.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some woolly statement that merely claims that charges were calculated to compensate UKPC for their “losses”.

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

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.

In addition, the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. The UKPC make reference to the Supreme Court’s decision in the ParkingEye vs Beavis case and how they believe it will have an impact on the outcome of this POPLA appeal. I would argue that Mr Beavis overstayed in a busy commercial car park which Parking Eye paid the Landowner £30,000 a year to farm.

The UKPC have no financial interest in this private residential car park, and there is no commercial justification for this charge.
If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case should it have any bearing on the outcome.

This concludes my appeal and I respectfully request that my appeal be upheld.

Umkomaas

Looks good to go, except that ParkingEye don't pay anything like £30,000 per year at The Riverside Retail Park (Beavis)!

It's £52,000! :eek:

http://parking-prankster.blogspot.co.uk/2014/04/parkingeye-pay-1000-week-to-be-allowed.html

chas5671

Thanks Umkomaas.

£52,000!!! Jeez

Umkomaas

chas5671 wrote: »

Thanks Umkomaas.

£52,000!!! Jeez

I'm sure PE think its a good investment, and they won't be paying that amount out for a 10% profit return!