UKPC Parking in a disabled bay with hospital permit!

Coupon-mad

Then you have not used the right search box (or misspelt a word). I am NOT saying to search while you are on this thread (won't work, it only searches this thread!). Nor should you use the box at the very top of the whole page. Wrong box.

Put Hospital POPLA in the box on page one of this parking board - the one immediately above the threads, level with 'NEW THREAD' which is to the left. The search box is to the right of that. Click 'this board' and go advanced...then it will take you to an advanced page where bottom left you choose 'show posts' (instead of show threads).

kodiplod

Coupon-mad wrote: »

Then you have not used the right search box (or misspelt a word). I am NOT saying to search while you are on this thread (won't work, it only searches this thread!). Nor should you use the box at the very top of the whole page. Wrong box.

Put Hospital POPLA in the box on page one of this parking board - the one immediately above the threads, level with 'NEW THREAD' which is to the left. The search box is to the right of that. Click 'this board' and go advanced...then it will take you to an advanced page where bottom left you choose 'show posts' (instead of show threads).

I did this and found some useful info. However when I start to do my POPLA claim online it says to give a summary of what happened, and thats only 2000 words. Any idea how I get around this?

Coupon-mad

Yes, if you'd searched the forum for '2000' as a keyword you would know - try it! On this forum, you can bet your bottom dollar that anything you are wondering, has been asked before dozens of times and a search of one unusual, specific word is always the first step.

kodiplod

I have done another search and found something, not 100% sure if this is okay. Have edited best I can:



1) Incorrect contravention – I showed a permit
This is due to the fact I was hospital visiting at the time (which I do voluntarily) and my grandson was gathering requests for hospital radio. My grandson has been doing hospital radio for over 5 years and has never had a problem with parking anywhere on site with the hospital radio permit that was issued to him.

Please see attached evidence, my parking permit, which was displayed clearly at all times as proof of my claim.

Please note my grandson has Crohn’s disease and was going through a flare up at the time of parking and needs to be close to a toilet a lot of the time. Although my grandson or myself do not have a disabled badge, Crohn's disease is a long-term medical condition affecting his daily life and was one of the main reasons we parked in this space, as it was closer to the door.


2) Inadequate, unclear & non-compliant signs
The parking signs at the concerned car park are very poorly stated and poorly lit. There is significant ambiguity in them. The car park has no clear signage to explain what the relevant parking restrictions are. This means no contract can be formed with the landowner and all tickets are issued illegally. Please see attached evidence, which are some photos I have taken of the parking spaces and the lack of signage I have gathered as proof. There are also no parking signs in front of the said disabled bays or in the actual car park.

3) No genuine pre-estimate of loss.
The Notice from UKPC alleges that “a breach of the terms and conditions of parking have occurred” and so the charge levied must be damages that UKPC are seeking in redress.
There was no damage nor obstruction caused so there can be no loss arising from the incident. Given there has been no genuine pre-estimate of loss the charge levied is unenforceable and the charge should be cancelled.

4) No standing or authority to pursue charges nor form contracts with drivers
UKPC do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. I require UKPC to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and without it, UKPC have no legal standing nor authority at this site which could impact on visiting drivers.

If UKPC produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor legal standing.

5) Notice to Keeper not compliant with the PoFA 2012.
Under the terms of the Protection of Freedoms Act, specifically Schedule 4, paragraphs 8 and 9, UKPC must identify the creditor who is legally entitled to recover parking charges on their Notice to Keeper. They have failed to do so, and so they have no right under the PoFA to reclaim parking charges from the keeper of the vehicle.

6) Unlawful penalty clause - revenue for UKPC
Based on no genuine loss or damage, and the fact that a breach of contract has been alleged, thus ‘charge’ can only be considered an unlawful route of revenue generation. UKPC's own website states the following - accessed in December 2014)
''frequently asked questions:”
How much would it cost us to use your parking management services? Nothing at all! We provide parking management services to our clients free of charge.


This means that UKPC generated revenues from these parking notices alone. Therefore, this is not a loss rather a revenue-source for them. Hence, it is against the principles of parking charges and should be quashed.

I request that my appeal is upheld and for POPLA to inform UKPC to cancel the PCN.

Coupon-mad

That's based on an old one (have you read a 2015 thread by mistake?). You can't argue 'no genuine loss' in 2016. So point #3 and #6 need to be deleted. In fact I would search again and only read a recent one from the past six months, not older; a Hospital one about Gemini Parking was a MUCH stronger one than this draft. You can find that one.

And point #1 would be OK if you re-word it to remove implication as to who was driving out of the two of you. Just say 'our permit' and 'we' to keep it vague.

kodiplod

Okay, I have found another and adapted slightly.

Let me know what you think

I submit the points below to show that I am not liable for the parking charge:

1) Incorrect Contravention - Permit
2) The operator/landowner has not complied with provisions of the Equality Act 2010
3) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012
4) No standing or authority to pursue charges nor form contracts with drivers.
5) Unclear and non-compliant signage, forming no contract with drivers.
6) Unreasonable and unfair terms – no contract agreed to pay £60.00. Fails the ‘Aziz test’.
7) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)



1) Incorrect Contravention – Permit

This is due to the fact we were hospital visiting at the time (which we do voluntarily) for hospital radio. We have been doing hospital radio for over 5 years and have never had a problem with parking anywhere on site with the hospital radio permit that was issued to us.

Please see attached evidence, our parking permit, which was displayed clearly at all times as proof of my claim.

Please note that one of us has Crohn’s disease and was going through a flare up at the time of parking and needs to be close to a toilet a lot of the time. Although we do not have a disabled badge, Crohn's disease is a long-term medical condition affecting daily life and was one of the main reasons we parked in this space, as it was closer to the door.







2) The operator/landowner has not complied with provisions of the Equality Act 2010

UKPC/landowner has not complied with provisions of the Equality Act 2010. In fact under the Equality Act Chapter 2, UKPC would be considered to be showing indirect discrimination and discrimination due to disability.

UKPC has not complied with any aspect of the Equality Act and certainly not complied with the BPA Approved Operator Scheme.

Furthermore, UKPC has no regard for Department of Health guidelines for parking on NHS sites and this cannot be deemed acceptable. gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles


3) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

As the parking company have neither identified the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

a. A notice to keeper has never been sent. No transfer of liability from driver to keeper as no NTK issued.

A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out or send the mandatory Notice to Keeper renders it non-compliant.

4) No standing or authority to pursue charges nor form contracts with drivers

UKPC 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.

In addition, Section 7.3 of the British Parking Association CoP 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.''


5) Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. 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.

When with reference to the BPA Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision".
There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.
The requirement to pay £60.00 is not clear on any of the signs that are directed to the disabled driver and are not prominent. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

Any photos supplied by UKPC to POPLA will no doubt portray it with the signs in a clear picture without many pieces of information in the clutter of this Hospital car park. As such, I require UKPC to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding the disabled person without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice 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.

Please see attached evidence, which are some photos we have taken of the parking spaces and the lack of signage we have gathered as proof. There are also no parking signs in front of the said disabled bays or in the actual car park.


6) Unreasonable and unfair terms – no contract agreed to pay £60.00. Fails the ‘Aziz test’.

I also wish to reference the Aziz test in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £60.00 had there been negotiations in advance, the answer here is obviously no. One could have parked free on the road at this time of the day in the surrounding residential area (residential side roads with no restrictions at all surround St. Richards Hospital). One could have also parked in other disabled bays in the hospital grounds, where such daunting, exhausting and discriminatory steps do not exist for the disabled driver. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £60.00 to this parking firm especially since they discriminate against the disabled person, no clear contracts especially for the disabled person, and as such this unjustified and discriminatory charge should not be upheld.

In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright. UKPC fail on a number of occasions and as such I would respectfully request that this appeal is upheld.

7) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)

UKPC has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from ParkingEye v Beavis. With regards to the location of the car park and the interests of the operator, there is no comparison with the Beavis decision with this being a residential car park.

UKPC may seek to rely on the case of ParkingEye v Beavis as legitimizing the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, UKPC has made no loss and the charge is a penalty.

UKPC has no legitimate interest in enforcing this charge; their only interest is to seek to profit. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge. Careful analysis of the Supreme Court judgment is not, as the UKPC may believe, a judicial green light legitimizing all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

The sum of £60.00 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £60.00 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Coupon-mad

That's better & more recent!

Add to this bit, the quote from the BPA CoP (Google it and search the PDF for the word 'disabled') that talks about the fact there must be signs within view of disabled occupants of cars, so that they can read the terms without having to get out of the car. I think that is still in the current CoP?

Please see attached evidence, which are some photos we have taken of the parking spaces and the lack of signage we have gathered as proof. There are also no parking signs in front of the said disabled bays or in the actual car park. Add the relevant section here from the BPA CoP.

I would remove this whole section (below) as the Aziz test now goes nowhere with POPLA...except for the final paragraph in red which I've edited a bit and now lends itself nicely to put somewhere in your 'unclear signs' argument:

6) Unreasonable and unfair terms – no contract agreed to pay £60.00. Fails the ‘Aziz test’.

I also wish to reference the Aziz test in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £60.00 had there been negotiations in advance, the answer here is obviously no. One could have parked free on the road at this time of the day in the surrounding residential area (residential side roads with no restrictions at all surround St. Richards Hospital). One could have also parked in other disabled bays in the hospital grounds, where such daunting, exhausting and discriminatory steps do not exist for the disabled driver. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £60.00 to this parking firm especially since they discriminate against the disabled person, no clear contracts especially for the disabled person, and as such this unjustified and discriminatory charge should not be upheld.

In any case, the driver was not adequately informed of the terms at the disabled bays when using one in good faith, nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere. There were no signs of terms/charge at the disabled bays which - as well as a BPA breach - fails 2(3) of Schedule 4 outright. UKPC fail on a number of occasions and as such I would respectfully request that this appeal is upheld.

Then also add, after your section about 'no keeper liability' a new appeal point about no proof that the appellant was the individual who was actually driving/liable. You will find that recent new point by searching this forum for 'individual'. It is important, to focus POPLA's mind in knowing there isn't actual evidence of which of you were driving and nor was it implied from the appeal.

Guys_Dad

Your point 3 - NtK out of time.

You need to spell out precisely why they have failed, with dates of contravention and NtK.

As it reads, it simply quotes the Act without drawing attention to the deficiencies of the PPC. Out of time, on ots own, blows their case out of the water so it needs to be tight.

In general, I don't feel comfortable with this appeal at all but don't have the time at the moment to reconstruct it. Sorry.

kodiplod

Okay thanks a lot!

How does this look now? Also, how would I submit this? Would I just post it or is there a way of doing it online?


Let me know what you think

I submit the points below to show that I am not liable for the parking charge:

1) Incorrect Contravention - Permit
2) The operator/landowner has not complied with provisions of the Equality Act 2010
3) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012
4) Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
5) No standing or authority to pursue charges nor form contracts with drivers.
6) Unclear and non-compliant signage, forming no contract with drivers.
7) Unreasonable and unfair terms – no contract agreed to pay £60.00. Fails the ‘Aziz test’.
8) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)



1) Incorrect Contravention – Permit

This is due to the fact we were hospital visiting at the time (which we do voluntarily) for hospital radio. We have been doing hospital radio for over 5 years and have never had a problem with parking anywhere on site with the hospital radio permit that was issued to us.

Please see attached evidence, our parking permit, which was displayed clearly at all times as proof of my claim.

Please note that one of us has Crohn’s disease and was going through a flare up at the time of parking and needs to be close to a toilet a lot of the time. Although we do not have a disabled badge, Crohn's disease is a long-term medical condition affecting daily life and was one of the main reasons we parked in this space, as it was closer to the door.







2) The operator/landowner has not complied with provisions of the Equality Act 2010

UKPC/landowner has not complied with provisions of the Equality Act 2010. In fact under the Equality Act Chapter 2, UKPC would be considered to be showing indirect discrimination and discrimination due to disability.

UKPC has not complied with any aspect of the Equality Act and certainly not complied with the BPA Approved Operator Scheme.

Furthermore, UKPC has no regard for Department of Health guidelines for parking on NHS sites and this cannot be deemed acceptable. gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles


3) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

As the parking company have neither identified the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

a. A notice to keeper has never been sent. No transfer of liability from driver to keeper as no NTK issued.

A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out or send the mandatory Notice to Keeper renders it non-compliant.

4) Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, CP Plus must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part:

“(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—
(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;
(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;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(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.”

The NTK fails due to the following reasons:
The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.
(B) It does not 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) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'.
(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

5) No standing or authority to pursue charges nor form contracts with drivers

UKPC 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.

In addition, Section 7.3 of the British Parking Association CoP 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.''




6) Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. 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.

When with reference to the BPA Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision".
There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.
The requirement to pay £60.00 is not clear on any of the signs that are directed to the disabled driver and are not prominent. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

Any photos supplied by UKPC to POPLA will no doubt portray it with the signs in a clear picture without many pieces of information in the clutter of this Hospital car park. As such, I require UKPC to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding the disabled person without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice 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.

Please see attached evidence, which are some photos we have taken of the parking spaces and the lack of signage we have gathered as proof.

There are also no parking signs in front or near the said disabled bays or in the actual car park that we could see. Section 18.10 of the BPA CoP states the following:
So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.


7) Unreasonable and unfair terms – no contract agreed to pay £60.00.

In any case, the driver was not adequately informed of the terms at the disabled bays when using one in good faith, nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere. There were no signs of terms/charge at the disabled bays which - as well as a BPA breach - fails 2(3) of Schedule 4 outright. UKPC fail on a number of occasions and as such I would respectfully request that this appeal is upheld.

8) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)

UKPC has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from ParkingEye v Beavis. With regards to the location of the car park and the interests of the operator, there is no comparison with the Beavis decision with this being a residential car park.

UKPC may seek to rely on the case of ParkingEye v Beavis as legitimizing the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, UKPC has made no loss and the charge is a penalty.

UKPC has no legitimate interest in enforcing this charge; their only interest is to seek to profit. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge. Careful analysis of the Supreme Court judgment is not, as the UKPC may believe, a judicial green light legitimizing all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

The sum of £60.00 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £60.00 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Redx

some of the above has the INCORRECT parking company listed

only UKPC should be listed , not C P PLUS etc

the references to PE cases are fine

when its completed and to everyones satisfaction, you would put "see attached appeal" in the online box , and attach your appeal as a pdf in the usual manner that is used on websites (an attachment)