CPM/UKCPM POPLA Appeal for review

Ed77

Background: I received a “Parking Charge Notice” 5 weeks after my vehicle was parked briefly in what appears to be a customer car park. After discovering this forum, reading the newbies thread and numerous other posts, schedule E of the PoFA etc etc I sent my appeal to CPM, based on the template but mentioning two salient points namely the shortness of the stay and the late arrival of the notice. CPM sent a 4-page reply which ignored the particular points I had made. They said I could appeal to POPLA but did not supply a code. I wrote back requesting a code; this crossed in the post with a code they sent in a separate letter. So now I am preparing my POPLA appeal.

I would welcome any feedback members of this forum may have.

The driver estimates the length of the stay to be 4 minutes but cannot be sure, particularly due to the time which passed before the PCN arrived. Should I state this in the appeal or would this just be hearsay evidence?

Should I include photographs of the signs as part of my evidence. Not that I did not take these until some weeks after I received the PCN - I suspect the relevant signs hadn’t changed in the meantime but can’t be sure.

I guess I should add standard arguments re proprietary interest and GPEOL?

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I am the registered keeper and I wish to appeal a recent parking charge from UK Car Park Management Ltd (“the operator”). I submit the points below to show that neither the keeper nor the driver is liable for the parking charge:

• Details of relevant signage
  • The largest and most prominent sign relating to parking (“Sign A”), occupies the whole of one window (approximately 8 feet by 5 feet) of one of the businesses located in XXXXXXX XXXXX and states

“XXXXX XXXXXXX XXXXXX ™
Parking behind XXXXXXXX”
with directions to the car park in the form of three arrows

• • A sign at the entrance to the car park (“Sign B”), states

“XXXXXXX XXXXX Car Park
This car park is Private and for the use of patrons of XXXXXXX XXXXX & XXXXXXX XXXXX only.
Any unauthorised parking will result in a parking fine of up to £100.”

• • Multiple copies of a further sign (“Signs C”) are displayed within the car park, stating

“Private Property
Enforcement in operation 24hrs. Unauthorised parking may result in your vehicle receiving a parking charge notice. The following restrictions apply.
Permits must be clearly displayed in windscreen at all times. No parking outside of a designated area / parking bay.
Terms of parking without permission
You do so at your own risk to property and personal injury and you are contractually agreeing to pay a parking charge fee.
The following fees apply
Parking charge notice………….£100 Per Day
or the reduced sum of £60 if payment is made within 14 days.
Registered keeper details may be requested from DVLA.
You will incur additional charges resulting from further action being taken against you if the fee remains unpaid
Card payments subject to £1.50 processing fee.
0845 463 5050
UK Car Park Management Ltd
PO BOX 3114, Lancing BN15 5BR
[CPM logo & reg no] [‘P’ symbol] [BPA logo etc]”

• No contract for parking was entered into
  • The vehicle was parked in the car park for no longer than required for the driver, or a passenger acting on the driver’s behalf, to read and understand the terms and conditions displayed by the operator and decide whether or not to park (the “grace period” defined by section 13 of the British Parking Association Approved Operator Scheme Code of Practice (“CoP”)).
  • No terms and conditions were agreed to and the vehicle left within a reasonable period.
  • The driver was present and visible within the vehicle for the duration that the vehicle was parked.
  • The employee, subcontractor or other agent (“attendant”), who acted on behalf of the operator within the car park and took the photographs, did not attempt to interact with the driver. In particular, no attempt was made by the attendant:
    • to explain the terms and conditions under which the operator wished parking to be conducted;
    • to request that the vehicle be removed;
    • to inform the driver where and how a permit may be obtained;
    • to engage in negotiation of a contract or make an offer;
    • to deliver a copy of a contact in durable form;
    • or to solicit a fee for parking.
  • By not engaging in any of the above interactions despite having a clear opportunity to do so, the attendant acting on behalf of the operator granted de facto permission for the vehicle to be parked without charge, at least for the short period during which it was there.
  • No detailed terms relating to the operator’s onerous and inflated penalty charge were visible, and it is therefore apparent that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.
  • The only wording on the signage which might be construed as a requirement to pay a fee is within the “terms” relating to parking without permission.
  • Any contract for parking must necessarily grant permission for parking, so the “terms” and any requirement to pay a fee cannot apply to such a contract.
  • No monetary value is associated with the “parking charge fee”.
  • The sum of £100 relates to a “parking charge notice”. The only other context in which a parking charge notice is mentioned is that of the vehicle “receiving” such a notice (presumably by having the notice attached). Since the vehicle (as opposed to the keeper) did not receive a parking charge notice, no payment can be due.
• The wording of the signage is unclear and ambiguous
  • Sign A can reasonably be interpreted as an invitation to customers and prospective customers of XXXXXXXX to park without charge in the car park
  • The use of the word “fine” on Sign B implies statutory authority, which is not true. This is also a contravention of section 14.2 of the CoP
  • Signs C use the terms “permit”, “permission”, “unauthorised” without explaining if and how the underlying meanings may differ.
  • No definition is given of which activities are considered to constitute being a patron of the two buildings stated on Sign B. Such activities may reasonably be thought to include reading signage, delivering a communication, checking opening times or viewing goods displayed in the window of a business located in the buildings
  • No definition of “permission” is given which would restrict its meaning from including implicit and explicit; prior and retrospective permission.
  • No information is given on who is competent to grant permission: whether the operator, the proprietor of the land, any or all of the businesses located in the buildings referred to in Sign B, or all of the above.
  • No explanation is offered as to whether permission is always associated with issue of a valid displayable permit or may independently be granted or obtained
  • No information is offered on how and from where a displayable permit may be obtained
  • The signs in this car park are 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.
• The operator has no right to recover parking charges from the keeper through the provisions of Protection of Freedoms Act 2012 (“PoFA”).
  • In the following paragraphs, “Section” means a paragraph or section of Schedule E of the PoFA
  • No notice was attached to the vehicle or given to the driver, so Section 7 does not apply
  • The Parking Charge Notice (“PCN”) was not received by the keeper within the relevant period
    • The event as stated by the PCN was on Friday 1 May
    • The relevant period as per Section 9(5) is a period of fourteen days beginning on the day after the event, in this case Saturday 2 May to Friday 15 May inclusive
    • The PCN was issued on 15 May and sent by post
    • The PCN must have been sent on or after the date of issue
    • The PCN was delivered to the keeper’s address on or after Friday 5 June; however, at the time of writing the appellant has not obtained proof of this
    • As per Section 9(6), unless proven otherwise, the notice is presumed to have been delivered two working days after it was posted, in this case on or after Tuesday 18 May. This is not within the relevant period.
  • No other notice was received within the relevant period.
  • The notice did not specify the period of parking, as required to satisfy Section 9(2)(a)
    • The notice states only a single instant 19:01 with no duration
    • A period of 5 seconds may be inferred from the times of the photographs, but this is not specified on the notice
  • The notice did not specify the circumstances in which the requirement to pay parking charges arose, as required to satisfy Section 9(2)(c)
    • The reason for the PCN specified by the operator was “Not displaying a valid permit”
    • No relevant permit was issued by the operator
    • If a contract had been formed between the operator and the driver (an assertion which the appellant denies), then
      • if the terms of the contract required display of a permit, the contract was impossible to perform and therefore unenforceable, so no charge was required to be paid
      • if the terms of the contract did not require display of a permit, then the reason specified by the operator is irrelevant and not a circumstance in which a charge arose.
  • Since the notice does not satisfy all the requirements of Section 9, it is not a valid Notice to Keeper as defined by the PoFA.
  • Since the conditions of Section 6(1) have not been met, the operator has no right to claim unpaid parking charges from the keeper of the vehicle according to Section 4.

Mike172

UKCPM never submit any evidence at POPLA and because of this you will win.

Search my threads, find the POPLA template. Copy and paste it and edit the numbers at the top.

Wouldn't over think this if I were you. UKCPM are so easy to beat its unreal to the point where I've been baiting them for a year or so now.

Ed77

It took me a while to find the POPLA appeal I believe Mike172 was referring to: showthread.php?t=5059166&page=3
It was helpful in preparing my POPLA appeal, which has just been allowed . As Mike172 suggested, UKCPM did not supply any evidence.

Decision here: showthread.php?t=4488337&page=94#1863

Many thanks to Mike172 and everyone on this forum for their help and advice.

Mike172

Thanks for letting us know. Good to hear back! Well done.

Really was easy wasnt it. Soon as I know Ombudsman are like London Councils Im back on my vendetta!

Ed77

I was planning to complain to the BPA about UKCPM's several breaches of the Code of Practice in the hope of getting them some sanction points, but now I'm not so sure that's the best strategy.

It's a bit like bacteria and over-use of antibiotics. If they eventually got ousted, they would most likely be replaced with a more resistant strain.

The_Deep

Ed77 wrote: »

I was planning to complain to the BPA about UKCPM's several breaches of the Code of Practice in the hope of getting them some sanction points, but now I'm not so sure that's the best strategy.

.

Complain. Why should they get ousted? They are no worse than the others. Unless they train their weasels in how to conduct themselves according to the law, (failure to mitigate their losses), they need to be brought to book.

Mike172

Other than the fact I got ghosted 15 times they are quite good. By quite good I mean they are not aggressive as say Parking Eye. Its as if they know what they are doing is wrong and keep a low profile.

Still a cancer though.