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POPLA appeal - UKPC
honest_guv
Posts: 85 Forumite
Hi everyone,
Thanks so much for all the great work you’re doing - it's been a great help so far. I’m just writing my popla appeal and would be grateful for some feedback..
My situation -
The driver parked in a retail park car park one dark and very wet evening in January, that also services some flats. The driver didn’t realise that the space was for residents only (it’s a row of residents bay’s mixed into retail parking bays).
A sign directly in front of where the driver parked clearly states, in large letters ‘FIRST HOUR FREE, only if ticket is displayed’. Above that clear sign there is another sign too small to read, which obviously contains their terms and conditions.
A valid pay and display ticket is clearly displayed on the dashboard in the photos provided by UKPC, as is a picture of the sign. Along the wet road, and spread out across several bays are the words ‘Residents Bays’ which the driver did not see.
The parking charge is for ‘Parked in a residents parking area without clearly displaying a valid residents’ parking permit.’
The initial appeal was rejected, and the rejection letter included the notice to keeper paragraphs, within the required timeframe.
This is a link to the location of the alleged infringement (the hoarding is now replaced by a Wetherspoons pub the driver was visiting) -
https://www.google.co.uk/maps/@51.7627268,-0.2400047,3a,77.8y,245.33h,87.03t/data=!3m6!1e1!3m4!1sG3kgm7SqgqKZ3xASA2US_A!2e0!7i13312!8i6656
The vehicle was parked in bay 234 as can be seen in the map, with the sign showing ‘First Hour Free’. A valid ticket was displayed in the vehicle
Dear POPLA Adjudicator,
I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC.
I submit the points below to show that I am not liable for the parking charge:
1. Inadequate signage or lighting
At the time of the alleged (denied) contravention it was very dark and raining. The only notices are high up on posts, and very poorly lit. The only clear sign (as can be seen in the photos supplied by UKPC), directly in front of where the driver parked states ‘FIRST HOUR FREE, only if ticket is displayed’. It is clear from the photos that a valid ticket is displayed.
It is not clear anywhere that the driver could not park in this particular bay.
Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice (the BPA CoP)which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear 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 BPA CoP also requires that signs must be visible and all terms prominent and legible at night, if an operator enforces terms in the hours of darkness. This was not the case according to the driver, who could only read the ‘FIRST HOUR FREE, only if ticket is displayed’ text, which is displayed prominently.
Also I would point out that keeper liability under the POFA Schedule 4, requires 'adequate notice of the charge' so that a driver has every opportunity to have terms and the 'parking charge' prominently and unequivocally drawn to his/her attention before parking. This was not the case in this dark car park where the terms were illegible and not in a position to be lit by headlights before the act of parking, so no contract was capable of being formed.
2. No genuine pre-estimate of loss
According to the BPA code "If the parking charge that the driver is being asked to pay is for an act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"
£90 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for free. Neither is it commercially justified because it would make no sense and in any event it was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £90 is clearly a penalty. The £90 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £90 cannot be so as the figures quoted include business costs.
I require UKPC to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. UKPC cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.
According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''
It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.
3. 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. I therefore put UKPC to strict proof to provide POPLA and myself with an un-redacted, 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 UKPC.
Thanks so much for all the great work you’re doing - it's been a great help so far. I’m just writing my popla appeal and would be grateful for some feedback..
My situation -
The driver parked in a retail park car park one dark and very wet evening in January, that also services some flats. The driver didn’t realise that the space was for residents only (it’s a row of residents bay’s mixed into retail parking bays).
A sign directly in front of where the driver parked clearly states, in large letters ‘FIRST HOUR FREE, only if ticket is displayed’. Above that clear sign there is another sign too small to read, which obviously contains their terms and conditions.
A valid pay and display ticket is clearly displayed on the dashboard in the photos provided by UKPC, as is a picture of the sign. Along the wet road, and spread out across several bays are the words ‘Residents Bays’ which the driver did not see.
The parking charge is for ‘Parked in a residents parking area without clearly displaying a valid residents’ parking permit.’
The initial appeal was rejected, and the rejection letter included the notice to keeper paragraphs, within the required timeframe.
This is a link to the location of the alleged infringement (the hoarding is now replaced by a Wetherspoons pub the driver was visiting) -
https://www.google.co.uk/maps/@51.7627268,-0.2400047,3a,77.8y,245.33h,87.03t/data=!3m6!1e1!3m4!1sG3kgm7SqgqKZ3xASA2US_A!2e0!7i13312!8i6656
The vehicle was parked in bay 234 as can be seen in the map, with the sign showing ‘First Hour Free’. A valid ticket was displayed in the vehicle
Dear POPLA Adjudicator,
I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC.
I submit the points below to show that I am not liable for the parking charge:
- Inadequate signage or lighting
- No genuine pre-estimate of loss
- No standing or authority to pursue charges nor form contracts with drivers
1. Inadequate signage or lighting
At the time of the alleged (denied) contravention it was very dark and raining. The only notices are high up on posts, and very poorly lit. The only clear sign (as can be seen in the photos supplied by UKPC), directly in front of where the driver parked states ‘FIRST HOUR FREE, only if ticket is displayed’. It is clear from the photos that a valid ticket is displayed.
It is not clear anywhere that the driver could not park in this particular bay.
Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice (the BPA CoP)which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear 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 BPA CoP also requires that signs must be visible and all terms prominent and legible at night, if an operator enforces terms in the hours of darkness. This was not the case according to the driver, who could only read the ‘FIRST HOUR FREE, only if ticket is displayed’ text, which is displayed prominently.
Also I would point out that keeper liability under the POFA Schedule 4, requires 'adequate notice of the charge' so that a driver has every opportunity to have terms and the 'parking charge' prominently and unequivocally drawn to his/her attention before parking. This was not the case in this dark car park where the terms were illegible and not in a position to be lit by headlights before the act of parking, so no contract was capable of being formed.
2. No genuine pre-estimate of loss
According to the BPA code "If the parking charge that the driver is being asked to pay is for an act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"
£90 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for free. Neither is it commercially justified because it would make no sense and in any event it was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £90 is clearly a penalty. The £90 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £90 cannot be so as the figures quoted include business costs.
I require UKPC to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. UKPC cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.
According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''
It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.
3. 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. I therefore put UKPC to strict proof to provide POPLA and myself with an un-redacted, 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 UKPC.
0
Comments
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The initial appeal was rejected, and the rejection letter included the notice to keeper paragraphs, within the required timeframe.
No it didn't.
A rejection letter is NOT a Notice to Keeper! You mean they forgot the NTK, which was as we planned. Good, it worked again! Same advice as here, stop rushing it.
Let's get it right and (AS LONG AS YOUR POPLA CODE WAS ONLY JUST ISSUED THIS MONTH) you need to appeal to POPLA once past day 57 from the windscreen PCN date, so it is then too late for them to serve a NTK:
https://forums.moneysavingexpert.com/discussion/comment/70465292#Comment_70465292
So, add in the usual paragraph about no keeper liability because UKPC did not serve a Notice to Keeper to you at all, like in this one linked below. I mean, use his appeal point #1 plus the POFA Schedule 4 quoted wording 'Right to...' that I suggested he added to his point #1:
https://forums.moneysavingexpert.com/discussion/comment/70458148#Comment_70458148
Then come back with a new draft which does not have 'no GPEOL' and does have 'no keeper liability (no NTK)' and also 'no landowner authority' (with BPA CoP quoted, like in the link you see there).
Your streetview link doesn't work for me. You need to copy the link the webpage says can be shared, not the co-ordinates URL as we can't see the place.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks for your comments CM.
The POPLA code was issued in mid March, and we are now well over the 56 days since the PCN was issued in January.
Hopefully this URL should work -
https://goo.gl/maps/zMWL14nHKRT2
The driver parked in bay 234 right in front of the sign saying 'First hour free...'
Redrafted appeal below:
Dear POPLA Adjudicator,
I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC.
I submit the points below to show that I am not liable for the parking charge:
1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
2. Inadequate signage or lighting, forming no contract with drivers
3. No standing or authority to pursue charges nor form contracts with drivers
1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
To date I have not been issued a Notice to Keeper (NTK) by UKPC. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).
The alleged infringement occurred on xx/01/2016 and from my understanding the NTK was required to reach me by xx/03/2016 . As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.
The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.
Relevant details of PoFA 2012, Schedule 4 are provided for your reference here:
''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...
(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.
8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(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 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.''
2. Inadequate signage or lighting
At the time of the alleged (denied) contravention it was very dark and raining. The only notices are high up on posts, and very poorly lit. The only clear sign (as can be seen in the photos supplied by UKPC), directly in front of where the driver parked states ‘FIRST HOUR FREE, only if ticket is displayed’. It is clear from the photos that a valid ticket is displayed.
It is not clear anywhere that the driver could not park in this particular bay.
Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice (the BPA CoP)which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear 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 BPA CoP also requires that signs must be visible and all terms prominent and legible at night, if an operator enforces terms in the hours of darkness. This was not the case according to the driver, who could only read the ‘FIRST HOUR FREE, only if ticket is displayed’ text, which is displayed prominently.
Also I would point out that keeper liability under the POFA Schedule 4, requires 'adequate notice of the charge' so that a driver has every opportunity to have terms and the 'parking charge' prominently and unequivocally drawn to his/her attention before parking. This was not the case in this dark car park where the terms were illegible and not in a position to be lit by headlights before the act of parking, so no contract was capable of being formed.
3. 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. I therefore put UKPC to strict proof to provide POPLA and myself with an un-redacted, 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 UKPC.
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. Section 7.1 states:
“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.
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 do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC (not that a keeper can be liable anyway on non relevant land and UKPC cannot enforce bylaws themselves, only the site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). UKPC have no standing to enforce 'parking charges' or penalties of any description in any court.
I put UKPC to strict proof of compliance with all of the above requirements.0 -
Remove this:
(not that a keeper can be liable anyway on non relevant land and UKPC cannot enforce bylaws themselves, only the site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). UKPC have no standing to enforce 'parking charges' or penalties of any description in any court.
The rest is fine unless anyone wants to add a 'not like Beavis' suggestion.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Some facts about UKPC
[FONT=Times New Roman, serif]UKPC are former clampers who have been involved in quite a number of sordid scams, for example[/FONT]
[FONT=Times New Roman, serif]Hull Trading Standards took them to court on 15 counts of fraud. UKPC won all but one, but only because they had a better lawyer, a Q.C. If I recall correctly[/FONT]
[FONT=Times New Roman, serif]http://forums.pepipoo.com/index.php?showtopic=63597[/FONT]
[FONT=Times New Roman, serif]They were bested by a Winchester barrister [/FONT]
[FONT=Times New Roman, serif]http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**[/FONT]
[FONT=Times New Roman, serif]They were involved in a large scale scam which resulted in a DVLA suspension[/FONT]
[FONT=Times New Roman, serif]http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html[/FONT]
[FONT=Times New Roman, serif]Then they had another go, this one is still being investigated[/FONT]
[FONT=Times New Roman, serif]https://forums.moneysavingexpert.com/discussion/5390608[/FONT]
[FONT=Times New Roman, serif]And then of course there was Tracey Kiss[/FONT]
[FONT=Times New Roman, serif]http://www.tracykiss.com/product-reviews/my-ukpc-parking-charge/[/FONT]You never know how far you can go until you go too far.0 -
Appeal was sent to POPLA as #3 above.
Received a reply from POPLA today -
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference xxxxx.
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
Thanks for your help and advice Coupon-Mad.0 -
honest_guv wrote: »Appeal was sent to POPLA as #3 above.
Received a reply from POPLA today -
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference xxxxx.
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
Thanks for your help and advice Coupon-Mad.
WELL DONE :beer:
Why was the ticket issued in the first place ??? ... by UKPC that is
Wake up UKPC0 -
well done ....:j
your next job is to tell as many people who will listen ( and even some who won't) all about the murky world of
parking on private land ........
what to do ...
and
where to find help
again well done
Ralph:cool:0 -
honest_guv wrote: »Appeal was sent to POPLA as #3 above.
Received a reply from POPLA today -
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference xxxxx.
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
Thanks for your help and advice Coupon-Mad.
No worries, nice result! Many thanks for updating the thread to show others this works.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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