We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
UKPC & Parking Eye - Popla Help
Neil_1985
Posts: 1 Newbie
Afternoon everyone,
I'm after some advice and help please, I have read the newbies thread and done some reserch but would like to confirm my case with you.
I recieved a windscreen ticket 20/06/15 for apparently not parking in a allocated bay, I appeled back to UKPC and got a POPLA code.
I have been back to the car park and taken pictures of the lack of sinage and position (there are 2 signs on the whole level of this car park which are around 7ft up a lamp post).
My appeal due to go to POPLA tommorow is shown below, can anyone advise if there is something I should add / remove.
Dear POPLA Assessor
POPLA Verification Ref: XXXXX
I am the registered keeper of Vehicle XXXX XXXX and I wish to appeal a recent parking charge from UKPC whilst at XXXX retail centre car park, On 20th of June. I wish to respectfully submit the points below to show that I am not liable for the parking charge;
1. The parking charge of £100 does not represent a genuine pre-estimate of loss
2 Non-compliant notice to keeper
3. Unclear and non-compliant signage
3. UKPC have no proprietary interest in the land and no standing
4) UNLAWFUL PENALTY CHARGE
5. Keeper Liability
A detailed explanation of these points is given below.
1) NO GENUINE PRE-ESTIMATE OF LOSS
The parking charge from UKPC alleges that the driver of the vehicle “breached the terms and conditions of parking” and so the charge levied must be damages that UKPC are seeking in redress.
The car park at which the alleged contract breach occurred is “free” and there was no parking charge levied.
UKPC cannot as per my request 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. UKPC 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.
[FONT="]2) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012[/FONT]
The notice to Keeper fails to state the period of parking, only that the vehicle was seen at hh:mm on the 20th of June 2015. Furthermore, under the terms of the Protection of Freedom’s Act, Schedule 4, paragraphs 8 and 9, the operator must identify the ‘creditor’, who is legally entitled to recover parking charges, on their Notice to Keeper.
UKPC have not met the keeper liability requirements and, as a result, keeper liability does not apply. As the keeper of the vehicle, I decline to provide the name of the driver(s) at the time. As the operator have neither named the driver(s) nor provided evidence as to who the driver(s) were, I submit I am not liable to any charge. [FONT="]In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.[/FONT]
[FONT="]Schedule 4 para8(1):[/FONT][FONT="] 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates. [/FONT]
[FONT="](g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'
[/FONT]
[FONT="]The NTK is a nullity so no keeper liability exists.[/FONT]
3. Unclear and non-compliant signage, forming no contract with drivers.
I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach of contract.
The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.
The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
4) CONTRACT WITH THE LANDOWNER — NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
UKPC do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
5. Keeper liability.
The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.
Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(b)has given a notice to keeper in accordance with paragraph 9.
9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)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;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.
The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
(link removed due to site rules)
Sections E & F has not been complied with at all. Other sections are not totally complied with either.
I would also like to state this[FONT="] charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. 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.[/FONT]
Thank you for your time,
Any comments would be much appreciated.
Thank you in advance,
Neil
I'm after some advice and help please, I have read the newbies thread and done some reserch but would like to confirm my case with you.
I recieved a windscreen ticket 20/06/15 for apparently not parking in a allocated bay, I appeled back to UKPC and got a POPLA code.
I have been back to the car park and taken pictures of the lack of sinage and position (there are 2 signs on the whole level of this car park which are around 7ft up a lamp post).
My appeal due to go to POPLA tommorow is shown below, can anyone advise if there is something I should add / remove.
Dear POPLA Assessor
POPLA Verification Ref: XXXXX
I am the registered keeper of Vehicle XXXX XXXX and I wish to appeal a recent parking charge from UKPC whilst at XXXX retail centre car park, On 20th of June. I wish to respectfully submit the points below to show that I am not liable for the parking charge;
1. The parking charge of £100 does not represent a genuine pre-estimate of loss
2 Non-compliant notice to keeper
3. Unclear and non-compliant signage
3. UKPC have no proprietary interest in the land and no standing
4) UNLAWFUL PENALTY CHARGE
5. Keeper Liability
A detailed explanation of these points is given below.
1) NO GENUINE PRE-ESTIMATE OF LOSS
The parking charge from UKPC alleges that the driver of the vehicle “breached the terms and conditions of parking” and so the charge levied must be damages that UKPC are seeking in redress.
The car park at which the alleged contract breach occurred is “free” and there was no parking charge levied.
UKPC cannot as per my request 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. UKPC 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.
[FONT="]2) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012[/FONT]
The notice to Keeper fails to state the period of parking, only that the vehicle was seen at hh:mm on the 20th of June 2015. Furthermore, under the terms of the Protection of Freedom’s Act, Schedule 4, paragraphs 8 and 9, the operator must identify the ‘creditor’, who is legally entitled to recover parking charges, on their Notice to Keeper.
UKPC have not met the keeper liability requirements and, as a result, keeper liability does not apply. As the keeper of the vehicle, I decline to provide the name of the driver(s) at the time. As the operator have neither named the driver(s) nor provided evidence as to who the driver(s) were, I submit I am not liable to any charge. [FONT="]In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.[/FONT]
[FONT="]Schedule 4 para8(1):[/FONT][FONT="] 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates. [/FONT]
[FONT="](g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'
[/FONT]
[FONT="]The NTK is a nullity so no keeper liability exists.[/FONT]
3. Unclear and non-compliant signage, forming no contract with drivers.
I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach of contract.
The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.
The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
4) CONTRACT WITH THE LANDOWNER — NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
UKPC do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
5. Keeper liability.
The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.
Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(b)has given a notice to keeper in accordance with paragraph 9.
9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)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;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.
The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
(link removed due to site rules)
Sections E & F has not been complied with at all. Other sections are not totally complied with either.
I would also like to state this[FONT="] charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. 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.[/FONT]
Thank you for your time,
Any comments would be much appreciated.
Thank you in advance,
Neil
0
Comments
-
make not a gpeol the last appeal point before the Beavis paragraph, not the first point
remove parking eye from the thread title as this is UKPC and not PE
change the word POPLA to Ombudsman Services
BEAR IN MIND POPLA ARE NO LONGER ACCEPTING APPEALS FROM LAST FRIDAY SO YOU NEED TO REGISTER YOUR POPLA REFERENCE NUMBER ETC SO IT CAN BE PASSED TO OMBUDSMAN SERVICES0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 351.7K Banking & Borrowing
- 253.4K Reduce Debt & Boost Income
- 454K Spending & Discounts
- 244.7K Work, Benefits & Business
- 600.1K Mortgages, Homes & Bills
- 177.3K Life & Family
- 258.3K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.2K Discuss & Feedback
- 37.6K Read-Only Boards