UKPC, PoFA and BPA CoP - advice, please!

woojh

Hi,

I'm currently preparing an appeal via POPLA. It's a charge for over-staying in a free McDonald's car park.

I've used these forums a LOT for advice (thank you, people!) and I'm appealing based on (put more eloquently than the way I've written this!):
1) The operator not being compliant with BPA Code in terms of the appeals process
2) NTK not being compliant with BPA Code
3) Charges are not consistent with genuine pre-estimate of loss (punitive and arbitrary)
4) UKPC not legally entitled to demand money (not landowners, nor any evidence to suggest they have to right to demand money).

I've spent hours and hours on it and it's coming together nicely, especially after using the POPLA decisions thread.

Two areas I'm stuck on though: the first is that UKPC claim they follow the BPA Code of Practice. I've got a wealth of strong evidence to suggest they don't because of how they've acted with us, but one thing they said in their initial rejection letter of our appeal, was that, "we are not required to comply with the Protection of Freedoms Act 2012 as it is optional legislation and we do not claim any of its benefits." Yet the BPA Code specifically alludes to this in their appendices and it almost forms an integral part of it. If they claim to follow the BPA CoP, surely they must be following the PoF Act, if elements of the Code rely on the PoFA. OR am I missing something? Can they follow one but not the other?

The second issue: do I mention the husband initially only pulled in to help a stranded motorist left in a very dangerous position on an exceptionally busy road? It's completely true! He says he wasn't specifically looking for signs (didn't expect any to be in a McDonalds as parking is always free), but only really recalls the multiple food signs, so probably wouldn't have seen them anyway (we're planning to go back and take photographs of signage). Basically what happened was he was on the way to meet a friend for food, saw the woman, pulled over to help. After he'd pushed her car out the way, his friend met him at the site instead of elsewhere, they stayed and got food, then drove off in one car to the cinema. He then returned to his car, bought more food (for me, the pregnant wife with late night cravings...) then came home. He doesn't dispute he left the car, but he didn't see the signs because he pulled in quickly with no intention of staying, but then ended up getting food (twice) - he would NOT have left his car, if he'd have seen the signs (we don't even over-stay in supermarket free car parks!). I'd obviously not go into as much detail and put it in far better words than this... or should I just miss it out altogether??

Just don't want to miss out what could be relevant, but likewise, I don't want to include information that is not going to add anything to the appeal.

Any help is much appreciated.

Many thanks.

Woojh

Herzlos

If they aren't relying on POFA - the registered keeper CANNOT be held liable, and you are not obliged to name them. Make that a point in your appeal:

"UKPC do not adhere to POFA2012 requirements and state "we are not required to comply with the Protection of Freedoms Act 2012 as it is optional legislation and we do not claim any of its benefits.", therefore as registered keeper I am not liable for this invoice.

Unless the driver has been named.


I wouldn't mention the why you were there - POPLA doesn't take note of mitigation. Mcdonalds do though, so you should take a copy of the invoice into the branch, explain what happened (without naming the driver) and getting them to cancelled it. They will not want the media sh*tstorm for their agent issuing an invoice to a good samaritan who was also a customer.

The_Deep

Bring to the attention of the manager the recent misdeeds of the PPC.

Guys_Dad

The bit that worries me is that you are doing your POPLA appeal. That suggests that you have already appealed to the PPC.

Just what did you admit to in that appeal and did you out the driver? If you did, then some of the previous advice may not be correct.

Important you answer this so we can help.

woojh

Thanks very much for these replies - they're really helpful.

We're appealing to POPLA after UKPC rejected the initial appeal. In no way have we said who the driver was - the original letter kept referring to 'me, as the registered keeper', and having checked it over again, absolutely doesn't implicate anyone, so driver definitely not outed. One sentence used was taken from a template on this website which said, 'I decline your invitation to name the driver, which is not required of me as the keeper of the vehicle'. There is then no reference to anything in first person whatsoever.

This is an excerpt from the email we were sent as a rejection:
'Please note that we are not required to comply with the Protection of Freedoms Act 2012 as it is optional legislation and we do not claim any of its benefits.

Given that the signage is displayed in compliance with all relevant laws and regulations, the fact that you were seemingly unaware of the Terms and Conditions on site is not considered a mitigating circumstance for appeal.

We have calculated the sum owed as a genuine pre-estimate of the losses incurred in managing the parking location to ensure compliance to the stated Terms and Conditions on site and to follow up on any breaches. We would remind you that the sum requested is well within the recommendations set out within Clause 19 of the BPA Code of Practice and that the sum, which is clearly and prominently advertised on all signage on site, has been approved by the landowner.

In light of all of the above, on this occasion, your representations have been carefully considered and rejected.'

It's really interesting about the PoFA as after a bit more digging, their website specifically claims that, 'The Protection of Freedoms Act 2012 states (under Schedule 4) that we can charge drivers/registered keepers (as applicable) the amount stated on our car park signage. Our parking charges comply with the guidance issued by the British Parking Association’ and that ‘the registered keeper must pay the parking charge’. Yet I now have written proof of them saying they DON'T comply with it. Does this mean, then, if they told us they don't comply with it, then they're working against BPA Code, and therefore gained our Keeper details illegally from DVLA?? I was under the impression that unless they are a member of BPA and follow the Code, they're not allowed to request details from DVLA, as with any other unregistered PPC. I could be entirely grasping the wrong end of the stick though - this is my first appeal to a non-council company so learning quickly!

We drove to the car park today. Where the car was parked, there was one sign by the entrance, which was obscured by a 'Welcome to McDonald's' huge sign, and the one nearest to where the car was parked (pulled in the first space possible, due to needing to get out and help quickly), the sign is obscured (literally INSIDE it!) by a tree. I took photographs. There are other signs that are more visible, but are very high up on posts, a good 4m up, with very small text, but if you don't drive right around the car park, you don't see them.

Will put a letter together to send to McDonalds. The roundabout they are located on is SO ridiculously busy that had he not got out, along with another guy, there really could have been a nasty accident - their car-park is the only place to pull over as the entire area is a clearway.

Thanks again for the replies - very much appreciated.

woojh

One other thing I need to check with you: the NTK didn't state why my husband was being charged - it just said that there was a 'violation of the terms and conditions on the signage'. We assume it's for over-staying, but could be something like parking outside the lines or whatever. I know that BPA Code says they have to state a reason why the charge is being levied, e.g. for underpayment, overstaying, etc - is their reason enough, just to state that a violation was made, but not be more specific?

enfield_freddy

if they want to revert to pre 2012 , and forget about the laws that were made then ,


there is only one answer for them ,


"go swivel , and chase the driver"


or a simple


http://www.nasw.org/users/nbauman/arkell.htm

woojh

Hahah!! I would LOVE to reply with something as clear cut as that!

If POPLA doesn't allow the appeal, are they likely to then pursue us and end up in court, on the balance of probability that one of us was driving? Or is it absolutely impossible for them to prove who it was? They seem to have made so many blatant !!!! ups, including twice sending court action threat letters and raising charges whilst our appeals have been in progress, which is specifically spoken against by POPLA and the BPA Code. I've got written evidence of these so have made specific reference to them. They really are a bunch of cowboys!