UKPC - POPLA Appeal

doyounihongo

Hi, I would appreciate assistance for UKPC POPLA appeal I am drafting.

The driver parked in a space that that previously hadn't been monitored by UKPC. The reason for the ticket isn't really visible on the photograph evidence supplied by UKPC. Despite the actual sign itself being rather big, it seems to be missing key details.

I also received no NTK at all. It runs to about 4 pages, but that includes a lot referenced from POPLA and the BPA CoP. Any advice would b greatly appreciated.


The appeal is as follows:


Dear POPLA Adjudicator
I intend to appeal a parking charge from UKPC relating to the vehicle [vehicle]. I am the registered keeper. I will be appealing on the following grounds:
1. Notice To Keeper (NTK) non-compliance with POFA 2012
2. Inadequate signage
2.1 with respect to duration of maximum stay
2.2 with respect to penalty charges
2.3 with respect to area of operation
2.4 with respect to lighting
3 No standing or authority to pursue charges nor form contracts with drivers

1. Notice To Keeper (NTK) non-compliance with POFA 2012
To date, I have not received a NTK from UKPC. Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) clearly defines the schedule that must be adhered to by UKPC if they wish to hold the keeper liable. The alleged infringement took place on [NTDdate] and given the presence of a Notice To Driver (NTD) at the point of the alleged infringement, any NTK would have been required to reach me by [NTK Deadline]. Given that the mandatory information required in the NTK by said Act (paragraphs 8 and 9) has to date, not been made available to me, the required conditions detailed in said paragraphs have not been complied with. Therefore, there can be no keeper liability in this instance.

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
No keeper liability notwithstanding, I argue that the very issuance of the Penalty Charge Notice (PCN) was incorrect due to a number of failings on UKPC’s part. Many which are in breach of the British Parking Association’s (BPA) Code of Practice (BPA CoP). UKPC state that by the act of parking, drivers agree to a contract whose terms are defined by those displayed on the available signage, however, the below details the inadequate nature of the available signage and thus why they are not sufficient for inclusion into said contract.
2.1 Inadequate Signage with respect to duration of maximum stay
The NTD stated that the driver exceeded the maximum allowed time and UKPC have stated that this is 45 minutes, however, this number is not clearly legible on any evidence provided to date. The sole reason for issuance of the PCN is not a term that the driver could have known about prior to forming a contract when parked. Effectively preventing the notice in question from being imported into the formed contract. In light of this, given that the PCN was issued on a basis that was not contractually agreed, there is no alternative but to render it null and void.
2.2 Inadequate Signage with respect to penalty charges
As I understand it, at the time of the incident, UKPC’s claimed ability to serve PCNs for the area in question was a somewhat recent development. Furthermore, from UKPC’s own photographic evidence (featured below for reference), the only clearly visible details are materially indifferent to the previous signage for the car park in question. Given that the information readily readable from the sign was no different to that which was previously available, it would follow that any reasonable driver would not have expected the terms of parking to have changed so drastically particularly in respect to the significant charges that UKPC are attempting to collect. The relevant BPA CoP section is quoted below for reference:
[FONT=&quot]If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions.[/FONT]


2.3 Inadequate signage with respect to area of operation
Additionally, note that the car park itself is shared between more than one retailer and there is no clear demarcation between land that UKPC is alleging is under their remit and land that is not - there are no signs of the other side of the car park. There are also no signs on entry to the car park or any that are visible from any pedestrian walkways thus giving no opportunity for the driver to conclude that different terms of parking could apply to what by any reasonable assumption was a single car park.
Note again, from photograph [insert ref to photo] the positioning of the sign – it is quite clearly wholly contained within what is apparently a separate, single bay as denoted by the white lines at the base of the photo. The expectation that any driver would automatically assume that the signage not featured prominently throughout the site and not featured at the site entrance (in breach of the BPA CoP) would in reality apply to the car park in its entirety is clearly unreasonable.

2.4 Inadequate signage with respect to lighting
Also note the conditions in photograph [insert ref to photo] According to [insert ref to website>]the sunset on [NTD date] was at approximately 2100 and the 45 minute period elapsed at 21:14. The photograph taken just 19 minutes later at 21:33 shows a completely unreadable, unlit sign. At the time at which UKPC allege a contravention of terms, said terms would be likely have been illegible – (again breaching the BPA CoP) which requires that signs must be visible and all terms prominent and legible at night, if an operator enforces terms in the hours of darkness. Further to this point, the photograph ([insert ref to photo]) provided by UKPC themselves show that at the point where UKPC actually attempted to enforce those terms (21:33), said terms were categorically illegible. The relevant BPA CoP section is quoted below for reference:
[FONT=&quot]“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. “[/FONT]

I would point out that I have personally checked the site in question on more than one occasion since the alleged infringement and can confirm that as of 29th Nov. 2016, there was no sign in place denoting either changes in terms of parking or UKPC’s intention to issue PCNs. Given the inconsistent nature with which UKPC is handling their own signage, it is of no surprise that any driver would be confused as to the nature of any terms that UKPC believe apply.
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
I have shown many factors which point to the flawed issuance of the PCN in question and I ask that my appeal is upheld and the PCN dismissed.

Yours,

[Name]

Umkomaas

Have you had an initial appeal to UKPC turned down and have received a 10-digit POPLA verification code?

Have you researched the NEWBIES FAQ sticky, post #4 which provides successful template appeal sections for you?

You haven't given us any details of the type of location of your parking event. Was it a residential car park, or supermarket, retail park, hospital etc etc?

It's not easy to critique an appeal if we have insufficient information and context.

doyounihongo

Yes, I've read the Newbies thread and sent in the appeals etc. I've now received the POPLA code after UKPC turned down my appeal. I haven't looked specifically at the template examples but I did to a search for successful UKPC appeals and got some information from them.

The incident took place in a small retailer's car park (not pay and display), it's more like an industrial estate where each unit has space for between 6 and 10 cars in front. People will sometimes park in one of the smaller car parks after (shop opening hours) to visit the big entertainment complex in the same vicinity. The NTD was for exceeding the maximum allowed time. I haven't checked yet but I'm sure that the shop was closed at the time when the car was first parked.

doyounihongo

UKPC had photos on their website that show the car parked near some signs, but the photos aren't clear enough to show what the signs say.

pappa_golf

doyounihongo wrote: »

UKPC had photos on their website that show the car parked near some signs, but the photos aren't clear enough to show what the signs say.

"I have been photoshopped" ?

Coupon-mad

You need to add one more template point and hold off with submitting the POPLA appeal as long as possible (to day 30, as the code WILL work that long, from the rejection letter). You want to be sure UKPC can't issue a NTK before day 56, if you possibly can get there.

I would add a heading 'Background' or 'Introduction' and say a version of this (below) so POPLA understand this location is not one car park and that the photos of the car show a sign that is illegible, can't be assumed to be in the same car park area and can't be assumed to have exactly the same terms on, as the stock picture that UKPC will show to POPLA.

The incident took place in a small retailer's car park (not pay and display), it's more like an industrial estate where each unit has space for between 6 and 10 cars in front. People will sometimes park in one of the smaller car parks after (shop opening hours) to visit the big entertainment complex in the same vicinity.

The extra point you should add straight after point #1, as point #2, is the one in the NEWBIES thread post #3 that says there is no evidence that the appellant keeper is the individual liable (no driver identification).

With no NTK served by day 56 you will win this. So time it well!

doyounihongo

pappa_golf wrote: »

"I have been photoshopped" ?

Not photoshopped, but far enough that the terms can't be read at all. I think they wanted to capture the vehicle in the same shot as a sign.

Coupon-mad wrote: »

You need to add one more template point and hold off with submitting the POPLA appeal as long as possible (to day 30, as the code WILL work that long, from the rejection letter). You want to be sure UKPC can't issue a NTK before day 56, if you possibly can get there.

With no NTK served by day 56 you will win this. So time it well!

By my calculation, no chance of a valid NTK being received now. I appealed after 24ish days,
UKPC wrote back after three more weeks giving me 21 days to name the driver, then spent another few weeks considering the original appeal. It's been over 4 months since the original NTD.


Thanks for the advice, I will update my response with the relevant info.