2x UKPC parking charges at POPLA rebut stage

leeda84 · 26 August 2015 at 12:58AM

Good evening! Bit of a long one as it involves 2 charges about the same subject but 2 differently worded responses from UKPC

Background:
UKPC issued 2x parking charges to my vehicle on 2 separate occasions when the vehicle was parked in a visitor's bay where I live. Due to the management company dragging their feet issuing me a new permit, a copied permit was displayed in my windscreen (the original I had to give to my folks as I was going away). It kept the slimebags at bay for a bit and then I eventually got charges on my windscreen for "displaying a non-valid photocopy permit".
I went down the usual appeal routes and because I could prove I had a permit, they "kindly" reduced both charges from £100 to £15. Of course I wasn't going to pay that either so it has gone to POPLA stage.
This was my initial appeal for both charges:

I am writing to appeal parking charge: ******* which was issued on my vehicle *****by UKPC.
I dispute this parking charge and my reasons are as follows:
1. My vehicle was parked in a visitor bay – UKPC has breached my lease conditions
As per the terms of my Lease under Second Schedule: Part 1 (rights granted), (l) Visitors Parking “to use when available or vacant for a period of 24 hours or less the Visitors Car Parking for the parking of one private motor car or motor-cycle which shall be in road worthy condition”. There is nothing in my lease that states a parking charge can/will be issued against Visitors Parking and I have never signed an agreement subsequent to signing my Lease to approve of this.
I therefore believe that the “rights granted” terms of my lease have been breached by UKPC for placing this charge on my vehicle.
2. Unclear signage
My vehicle was parked within a visitors parking bay and displayed a UKPC permit with the first line of the address and permit number. These details corresponded with the registered address of the vehicle. The “terms of parking” details on the signs within this parking area are vague and unclear as there is no description of what is/what is not a “valid parking permit” on UKPC’s signs. I have also looked on UKPC’s website and there are no terms and conditions
3. Authority to issue tickets
Does UKPC have a right to issue tickets on the land in question? I would like to request contractual evidence from UKPC between it and the landowners to prove that it has authorisation to issue parking charges on this land.
4. Genuine pre-estimate of loss
The initial charge of £100 reduced to £60 if paid within 14 days is punitive. The appeal declination letter from UKPC dated 22nd July 2015 explains that “in consideration of the information you provided…” they have reduced the charge to £15 to be paid within 35 days. How can UKPC demonstrate that the initial charge of £100 or even £60 is a genuine pre-estimate of loss if they are able to reduce the charge so drastically? This is a private, free car park for use by residents and their visitors and as such, no loss has been incurred by residents, the landowners and UKPC. The Court Of Appeal’s ruling on 23rd April 2015, ParkingEye vs Beavis cannot be relied upon by UKPC as a further appeal is being considered by The Supreme Court.
I look forward to hearing from you with your decision,

I provided snippets of my lease and a photograph of my visitor's permit.

UKPC have today responded with this (enjoy their bad grammar and poor spelling):

On 04/07/2015 our warden issued a parking charge to vehicle registration ******* at Chandlers Wharf. The
parking charge was issued because the vehicle was parked in a permit space displaying a non valid
photocopied permit
.
The Parking Charge amount was £100.00, reduced to £60.00 if payment was received within 14 days.
An appeal was received from Miss K on 05/07/2015, to which the appeals department investigated and
decided to reject.
The basis of the appeal was they are a resident and have a visitors permit to park. However at the time of issue
they were clearly displaying a photocopied permit as it was on thin paper and printed black and white. The
valid permits on site are printed on card and coloured purple.Please see attached a photo of the photocopied
permit displayed at the time of issue and the original valid permit Miss K supplied in support of her
appeal.
As Miss K provided the valid original permit with her appeal, as a gesture of goodwill we reduced the
charge to £15.00, reiterating that photocopied permits are not valid on site.
There are sufficient signs warning drivers that a valid permit must be displayed at all times. A photocopy of a
permit is not valid on site. Miss K's vehicle was parked without displaying a valid permit and
consequently the Parking Charge was issued. By parking in this manner Miss K has deprived a visitor of
access to the parking space which they pay for or is taking up another visitors space which another residents
guests are entitled to.
A letter was sent to Miss K informing them of our decision on 22/07/2015.
UKPC have not breached Miss Ks lease conditions as claimed in her appeal, In fact Miss K has
breached the parking terms and conditions on site by parking without a valid permit.
All of our signage is fully compliant with the guidelines set out within the BPA Code of Practice and we reject the
notion that it is in any way unclear or ambiguous. One of these signs were in clear view of Miss Ks
vehicle.
A photocopied permit is not valid on site in the same way you cannot photocopy a oyster card an expect to use
it to board a bus. Miss K is fully aware of what a valid permit is as she supplied the valid permit in support
of her appeal. By photocopying her permit she is attempting to permit more than one vehicle to park on site
than she has been allowed.If she required more visitor permits she should have contacted her property
management instead of fraudently making a copy of the valid permit to use. This is clearly an attempt to illicit
more parking spaces on site than she has been allocated.
In the recent case of ParkingEye Ltd v Beavis [2015] EWCA Civ 402, the Court of Appeal unambiguously clarified
the common law’s position on both the nature and enforceability of parking charges.
It is now clear that a parking charge having the predominant purpose or intention to deter is ‘not sufficient in
itself to invalidate [the charge]’. The principle test that should be used is whether the sum charged is
‘extravagant and unconscionable’ (see para 51). In the case, it was found that the parking charge was not
extravagant and unconscionable and thus fully enforceable under the rules about contractual penalties (see
para 31). This ruling now represents the most authoritative judgement in the area of parking law and must be
strictly adhered to.
In undertaking this ‘principle test’, an ‘excessive concentration’ on the difference between the amount payable
under the charge and the measure of actual loss sustained has been strongly ‘deprecated’ (see para 18). The
Court of Appeal understood that in certain circumstances parking operators may not suffer any ‘direct financial
loss’ from parking contraventions. However, even in these circumstances, the Court recognised that such
contraventions can cause an ‘indirect loss’ to parking operators. For example, the inability of an operator to
prevent breaches of parking restrictions would likely result in the loss of its service contract with the landowner
(see para 25).
Though the Court recognised that it is theoretically possible to charge motorists more ‘modest amounts’, it
would be ‘wholly uneconomic to enforce such charges by taking legal proceedings against them’ (see para 25).
Further, the Court appreciated that charges must be large enough to act as a ‘deterrent’ and large enough to
‘justify collection’ (see para 30).
Despite indications that a charge is extravagant and unconscionable, other factors may be present which ‘rob’
the charge of this character (see para 27). In prior cases, it has been the case that only commercial factors or
justifications have been considered. However, in Beavis, the Court of Appeal stated that such charges can be
justified using other considerations, such as ‘social’ factors, due to the fluidity of a ‘rule grounded in public
policy’ (see para 27). Relevant public policy factors were highlighted by the Court when it stated that deterrent
charges can be beneficial to drivers, shopkeepers and ‘the community as a whole’ (see paras 38 and 45). The
Court also found that Parliament’s enactment of Schedule 4 of the Protection of Freedoms Act 2012 strongly
supports the conclusion that the legislature considered it to be ‘in the public interest’ that parking charges be
valid and enforceable (see para 28).
Following the test of extravagance and unconscionability, as well as taking into account the applicable public
policy factors, it is without doubt that your parking charge is wholly valid and fully enforceable.

And this:

On 06/07/2015 our warden issued a parking charge to vehicle registration ****** at Chandlers Wharf. The parking charge was issued because the vehicle was parked in a resident’s parking space without clearly displaying a valid resident’s parking permit.

The Parking Charge amount was £100, reduced to £60 if payment was received within 14 days.

An appeal was received from Miss K on 06/07/2015, to which the appeals department investigated and decided to offer a goodwill gesture and reduce the charge to £15.

Despite the fact that Miss K was displaying a permit it was a photocopy, please see attached a copy of an original permit in comparison to Miss Ks permit which was displayed. As per the terms and conditions set out by our signage, the decision was made to offer them a goodwill gesture and reduce the charge to £15. This decision was made because Miss K was the holder of a valid permit, a copy of which they provided to us.

Miss K has quoted part 1 of the porperty lease agreement which discusses visitors parking. This is subject to the terms and conditions of parking on the landowners private land which is stipulated on our signage on site.

Miss K also quotes Genuine Pre-estimate Of Loss in her POPLA appeal this is our view of this, n the recent case of ParkingEye Ltd v Beavis [2015] EWCA Civ 402, the Court of Appeal unambiguously clarified the common law’s position on both the nature and enforceability of parking charges.

It is now clear that a parking charge having the predominant purpose or intention to deter is ‘not sufficient in itself to invalidate [the charge]’. The principle test that should be used is whether the sum charged is ‘extravagant and unconscionable’ (see para 51). In the case, it was found that the parking charge was not extravagant and unconscionable and thus fully enforceable under the rules about contractual penalties (see para 31). This ruling now represents the most authoritative judgement in the area of parking law and must be strictly adhered to.

In undertaking this ‘principle test’, an ‘excessive concentration’ on the difference between the amount payable under the charge and the measure of actual loss sustained has been strongly ‘deprecated’ (see para 18). The Court of Appeal understood that in certain circumstances parking operators may not suffer any ‘direct financial loss’ from parking contraventions. However, even in these circumstances, the Court recognised that such contraventions can cause an ‘indirect loss’ to parking operators. For example, the inability of an operator to prevent breaches of parking restrictions would likely result in the loss of its service contract with the landowner (see para 25).

Though the Court recognised that it is theoretically possible to charge motorists more ‘modest amounts’, it would be ‘wholly uneconomic to enforce such charges by taking legal proceedings against them’ (see para 25). Further, the Court appreciated that charges must be large enough to act as a ‘deterrent’ and large enough to ‘justify collection’ (see para 30).

Despite indications that a charge is extravagant and unconscionable, other factors may be present which ‘rob’ the charge of this character (see para 27). In prior cases, it has been the case that only commercial factors or justifications have been considered. However, in Beavis, the Court of Appeal stated that such charges can be justified using other considerations, such as ‘social’ factors, due to the fluidity of a ‘rule grounded in public policy’ (see para 27). Relevant public policy factors were highlighted by the Court when it stated that deterrent charges can be beneficial to drivers, shopkeepers and ‘the community as a whole’ (see paras 38 and 45). The Court also found that Parliament’s enactment of Schedule 4 of the Protection of Freedoms Act 2012 strongly supports the conclusion that the legislature considered it to be ‘in the public interest’ that parking charges be valid and enforceable (see para 28).

Following the test of extravagance and unconscionability, as well as taking into account the applicable public policy factors, it is without doubt that your parking charge is wholly valid and fully enforceable

All of our signage is fully compliant with the guidelines set out within the BPA Code of Practice and we reject the notion that it is in any way unclear or ambiguous.

Also please find attached a copy of the contract between UKPC and the Landowner.

There are sufficient signs warning drivers that they must display a valid permit in order to park their vehicle in this area, and that should they choose not to do so, they may become liable to receive a Parking Charge. Miss K was displaying a photocopied parking permit and consequently the Parking Charge was issued correctly.

A letter was sent to Miss K informing them of our decision on 22/07/2015.

Now, the first appeal response from UKPC has really quite p*ssed me off. Their use of words such as "fraud" and "illicit" to try and justify their parking charge is verging on libel as they are accusing me of committing a criminal offence. And how they can compare a pay as you go smart travelcard issued by a government department to a piece of cardboard issued by a Ltd company is just clutching at straws surely? :rotfl:

Despite UKPC saying they have attached a copy of the contract in one of their responses... I certainly didn't receive a copy of it. The other appeal response they haven't even bothered to mention it.

I don't live at Chandlers Wharf as stated in both of the responses and the site photographs they provided as evidence were also of Chandlers Wharf, not of where I live.

I will provide more evidence about my lease including the covenants, expand on the unclear and vague signage and also reiterate about the lack of contract. Is it worthwhile to respond about the fraud accusation? Is there anything else I can bring up?

Ta

Redx · 26 August 2015 at 8:25AM

I assume this being at popla stage you have 2 popla codes ? one for each one ?

if so you need to check their validity and expiry date , then register them on the popla website so that they can pass them onto the Ombudsman Service for adjudication from october 2015

then you need to draft up 2 popla type appeals based on sinilar 2015 ones from here by using the forum search box and find something you can adapt , then adapt it for submission to the Ombudsman Service

if you have already done this (not clear from your post above) then draft up rebuttals to their popla evidence, by using the search button and the word s POPLA REBUTTALS and plagiarise those rebuttals for your own purposes

popla wont care about innuendo, just legal arguments

these scumpanies will try anything and say anything so dont get drawn into a war of words, get the appeals in and beat them at the Ombudsman stage, costing them 2 lots of money

so which actual stage is it at ?

1) pre-popla stage, where you have the popla codes and need to draft popla appeals ?

if its this stage then you are now at the Ombudsman Services stage due to the impending changeover and need to register your codes on the popla site and start to draft a popla type of appeal

2) or ongoing popla stage ? where you already submitted 2 popla appeals and are now at the rebuttal stages with the UKPC evidence being sent to you and popla and you have say 7 days to rebut it to popla themselves ( with a decision imminent? )

if this is the case, they provided the landowner contract to popla, not you, therefore its popla that will peruse it, not you

so if you have a popla hearing date, when did they say it was going to be ?

see this thread for rebuttal advice too

https://forums.moneysavingexpert.com/discussion/5275535

you should have also complained to the landowner and management company about this and got the charges dropped. they employed the parasites so should take responsibility, especially due to not getting the new permit to you

check your lease for any terms about parking and see what it says, there has been no loss to the landowner and the lease should allow for "quiet enjoyment" and they may have been trespassing if you lease the space etc (see other threads for details on this aspect)

leeda84 · 26 August 2015 at 11:10AM

Apologies if my post wasn't clear, I was in a bit of a jet-lagged state whilst posting in the early hours.

I have had 2x different parking charge references and 2x different POPLA codes.

I am at ongoing POPLA stage where I have submitted my initial appeal to POPLA. UKPC responded with their "evidence" yesterday against both appeals and I am in the process of drafting my rebuts.

POPLA have stated they will make their decision on or soon after 1st September.

I have complained to the management company over and over (who also happens to be a resident and lives right above me!) but she seems to be happy with what UKPC are doing. Even when I told her I was a victim of UKPC ghost ticketing scandal in my own private parking space she didn't really give a toss and just said "I'm glad you have sorted it out". She makes £23.50 for every additional piece of cardboard she issues and more than likely receives 10% of any parking charges that are stupidly paid by people.

From recollection, "quiet enjoyment" in my lease only refers to the "property" which is defined as my flat and my private parking space, not a visitor space. It states under "rights granted" that my guest and/or myself is entitled to use a visitor space.
I will double check my lease tonight (and I am no conveyancing solicitor) but as far as I can see, there are no covenants that allow the landlord to change any terms of the lease as and when it feels like it, including the visitor parking situation. A bit of internet research has show that: "terms of the lease can only be varied by mutual agreement between the freeholder and the leaseholder or at tier 1 tribunal as defined in the Landlord and Tenant Act 1987 under s35" - neither of which have happened.

I'll have a look at the link you posted, thank you.

In the meantime, is there anything I have missed in my initial suggestions at the end of my first post that I should be pursuing?

leeda84 · 28 August 2015 at 5:32AM

I've hashed together a couple of epic responses though I'll only copy the one as the other is very similar. I've edited out some of the usual template stuff as well to make for easier reading (although still quite long). The issue was using a "non valid photocopy permit". Now, I don't know if anyone has had any success fighting "non valid" permits as a point in itself as I didn't check but I've given it a go.

1. UKPC state that: “All of our signage is fully compliant with the guidelines set out within the BPA Code of Practice and we reject the notion that it is in any way unclear or ambiguous. One of these signs were in clear view of Miss Ks vehicle.”
As shown in the UKPC photograph time-stamped 22:54:41, the sign is not easy to see nor read. It is poorly lit, contains extremely small text and is very high up on a post. The angle of the close-up photograph of the sign, time-stamped 22:54:52, shows how unclear the text is to read, even with the parking attendant’s camera flash on. Driving into the parking space, the driver would be unable to see the sign as the driver did not pass the sign to park and it is placed too high and 3 spaces away from the parking space used. Reversing into the space (as the car was parked when it received the PCN), the driver would be unable to see there was a sign there at all. It would be impossible for the driver to see the terms and conditions of parking, when parking, and therefore the signs are not, as UKPC claims, fully compliant with the BPA’s Code of Practice. Additionally, there are no detailed or clear terms and conditions on the sign. UKPC has not stated anywhere on their signs or on their website as to what their definition of a “valid permit” is. You are only made aware of this more detailed condition after you have received a parking charge which is wholly underhand and unfair. This also contravenes the BPA’s Code of Practice. The driver was therefore not bound by any terms and conditions claimed by UKPC when parking or remaining on site.

BPA Code of Practice - Signs
18.3
18.6

Furthermore, the site photographs provided by UKPC are not of the same development where my vehicle received the parking charge. The fact that UKPC is confused about the geographical locations of the parking areas on; the parking charge notice, the site photographs and at the top of pages 1 and 2 of their evidence pack clearly indicates the lack of knowledge of the area or it is simply attempting to mislead POPLA about the parking situation.

2. I wish to reiterate point 3 from my initial letter to you regarding UKPC’s authority to issue parking charges on the land. I believe that no contract exists with landowner to pursue charges and their lack of response to this point strengthens my belief.
The operator does not own the land in question and has still not provided any evidence that it is lawfully entitled to demand money from a Driver or Keeper. It owns neither proprietary nor agency rights and holds no title or share of the land. I do not believe that it has the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in its own name as creditor. I believe that at best it may hold a site agreement limited to issuing tickets and as such I still require that it provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

(copy and paste no/rubbish contract blurb)

3. UKPC claims that they have asserted the charges are a genuine pre-estimate of loss, and this is given as the justification that the charge is a genuine pre-estimate of loss.
UKPC has failed to provide any actual evidence as to how the figures they quote are a genuine pre-estimate of loss. There is no attempt by UKPC to provide a clear and detailed breakdown of their estimate and it has just quoted small parts of the Beavis ruling which is not actual evidence. The car park is a free car park that has no charging facilities whatsoever and the Operator would have been in the same position financially had the parking charge notice not been issued.

4. UKPC state that: “By parking in this manner Miss Ks has deprived a visitor of access to the parking space which they pay for or is taking up another visitors space which another residents guests are entitled to. UKPC have not breached Miss Ks lease conditions as claimed in her appeal, In fact Miss K has breached the parking terms and conditions on site by parking without a valid permit.” and “By photocopying her permit she is attempting to permit more than one vehicle to park on site than she has been allowed”
The visitor parking is free of charge to use 24hrs a day by residents and/or their visitors as per the “rights granted” in the lease (assuming all residents’ leases are the same as my own). I did not deprive a visitor of a space nor did I take up another visitor space; I am a resident, therefore I am fully entitled to use a visitor’s space if I require. UKPC has no evidence to prove that I had used even one parking space let alone more than this; I appealed as the registered keeper and UKPC has more than once suggested that I was the driver of the vehicle at the time it received the PCN. This is a further attempt by UKPC to confuse and mislead. The vehicle was parked in a marked visitor’s bay, displayed a UKPC permit, face-up, which clearly showed the permit number and the first line of the address, which is also the registered address of the vehicle it was being displayed in.

5. “Miss K is fully aware of what a valid permit is as she supplied the valid permit in support of her appeal. “
I confirm that I sent a photograph of one of my permits to UKPC as proof that I was a resident and that the vehicle belonged to me. I do not agree that I knew any permit was valid or otherwise. The only condition on the permit states, “This permit must be clearly displayed face-up in the windscreen of your vehicle” and those were the instructions that I followed. UKPC has no other conditions on the permit itself, or on the signs or its website to inform anyone of its definition of “valid” and how the permits should or should not be used. This is another example of its misleading tactics; by providing as little information to the ‘customer’ as it is able, it gives UKPC further scope to exploit these intentional oversights. This enables UKPC to issue PCNs based on what I believe are undisclosed terms and conditions that the ‘customer’ only finds out about after they have allegedly breached them.
6. UKPC state that:
“A photocopied permit is not valid on site in the same way you cannot photocopy a oyster card an expect to use it to board a bus.”
“If she required more visitor permits she should have contacted her property management instead of fraudently making a copy of the valid permit to use. This is clearly an attempt to illicit more parking spaces on site than she has been allocated.”
Definition of UKPC wording:
i. Oyster Card: an official top-up travel smartcard issued by a government department (TFL). To travel without paying is a criminal offence and it is enforceable by law.
ii. ii. Fraud: a type of criminal activity; 'abuse of position, or false representation, or prejudicing someone's rights for personal gain'
iii. iii. Illicit: forbidden by law
I am aware that the words used by UKPC in part 6 of this letter are irrelevant in terms of attempting to prove their case because they are just that - words. Unfortunately, I am unable to ignore the intent behind them as they are an underhanded means of persuasion. I believe that UKPC’s behaviour is highly unprofessional and I take great exception to being accused of any kind of criminality by UKPC. These unwarranted comments could be extremely damaging to me and they are verging on libel. The BPA expects a high standard of professionalism from their Operators. Judging by these comments alone, it certainly falls way below that standard.

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