UKPC Parking Charge

Mooknoir

Yea this is my POPLA appeal that I must submit. Do you think this will be ok? I've used parts of text from previous wins, I'm not sure what else to add to it aside from some kind of closing statement.

Mooknoir

Will just post this all at once to make it easier to read through, will be submitting tomorrow (Friday 29th) any thoughts will be hugely appreciated

I am the registered keeper and I wish to appeal a recent parking charge from UKPC on 6th February 2016, 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 Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) The signage was not readable so there was no valid contract formed.

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. 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.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

In addition, Section 7.3 states:

“The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement.''

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, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Total Parking Solutions.

The Notice to Keeper is not compliant with the POFA 2012 – No Keeper Liability.
With regards to the notice that was placed on the vehicle and the rejection letter, UKPC have attempted to establish keeper liability under Schedule 4 of the Protection of Freedom Act 2012.However, they have substantially failed because they have not fulfilled the second condition for keeper liability and subsequently not complied with the fundamental requirements set out in POFA 2012. As a result, UKPC have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''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;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

As the ‘alleged’ contravention happened on 6th February 2016, the NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which the notice to driver was given. As UKPC have evidently failed to serve a ‘notice to keeper’ , not only have they chosen to reject the strict timelines set out in PoFA 2012, but have consequently failed to meet the second condition for keeper liability.

Furthermore, no assumptions can be made that driver liability is possible in this situation. Henry Gleenslade, the previous Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a registered keeper without a valid NTK. Thus in this situation, UKPC have neither complied with, nor met the keeper liability requirements and thus there is no keeper liability.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade, the POPLA Lead Adjudicator in his 2015 POPLA Report:

''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

The signage was not readable so there was no valid contract formed.
If a driver can't read the sum of the parking charge (the £100) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge for a 2 minute stop which on double yellows is not normally in this Country, a contravention at all) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.

Double yellows alone do not preclude stopping because (under the Highway Code, being the accepted definition of lines, in the absence of signs to the contrary) a driver could be undertaking exempt activity. E.g. loading/unloading items (or assisting a passenger to board/alight, among other exemptions) which is perfectly acceptable on double yellows. In the normal course of events on street, as known to any competent UK driver, a car can stop on these lines for a few minutes without being in contravention; double yellows are NOT an indicator of a 'no stopping zone' for an immediate ticket. So, a £100 fine for such activity over just a couple of minutes (when up to 20 minutes with at least five minutes observation, is the usual rule for loading/unloading on street) is certainly not the norm and so £100 charge is indisputably an unexpected term, just the sort of onerous clause which Lord Denning had in mind.

Umkomaas

I'm pretty sure that UKPC will be quoting Beavis, so you need to have some advance rebuttal in your submission (a dismantling job of the Beavis judgment in the context of your parking event). If you haven't covered it in your appeal and UKPC raise it, POPLA seem to be denying motorists the ability to bring up anything in rebuttal after receiving the PPC evidence pack.

Here's a new, useful resource to help:

http://www.parkingcowboys.co.uk/fighting-beavis-argument/

Coupon-mad

I think that appeal is pretty good already - or you may just wish to add something about the Beavis case, which would be that parking on double yellows is not comparable to the licence to park in a bay, a contract offered and agreed between PE and Mr Beavis.

This appears to be an allegation of unauthorised parking (denied) which cannot also be a contract allowing parking under licence, subject to conditions. It can only be a matter of trespass and a third party cannot charge for that as was confirmed in the Supreme Court.

Then quote the stuff about trespass from the Beavis case s people ahve before (search the forum for 'trespass ParkingEye Beavis' or similar, to find those quotes used by someone else).

Mooknoir

Ok that's great,


Thank you both for your comments, I will adjust slightly and then get it submitted. Will update with the decision once I receive it.


Much appreciated!

Mooknoir

Just received this from POPLA - Successful!!

"An Appeal has been opened with the reference ............

UK Parking Control Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team"

Umkomaas

Thanks for coming back to let us know of your successful outcome. You'd be surprised at the number of posters who don't have the basic decency to let those who have given freely of their time and knowledge to help them, know of the outcome of their efforts.

Well done.

Pacemakerrunning

Thanks for your advice and template letters. I used these as a basis for appeal against a UKPC parking ticket and receive a message from POPLA today plus the following from UKPC. Thank you for your help everyone who has contributed! Keep up the good work!

"Thank you for your recent correspondence in relation to the above Parking Charge. We understand your frustration and appreciate the inconvenience this has caused you. It is not our intention to cause undue worry and frustration when enforcing our clients parking regulations.
We have investigated the appeal based on the information submitted by yourself and can confirm in this instance that the Parking Charge has been cancelled.
We strive to deliver a high quality service that enhances the existing quality standards insisted upon by our client and ensure our Wardens are stringently trained to meet these expected standards.
On behalf of ourselves and our client we apologise for any inconvenience.
Yours faithfully,
Appeals Department
UK Parking Control Limited"

KeithP

Well done Pacemakerrunning.

What made you choose this eighteen month old thread to post your good news?