UKPC on private land outside flat

Tallulah19

Hi, seen some great advice on here just too much and don't know whether to follow exactly or be 100% truthful rather than quoting previous cases.

Family visit to pick up item from friend. Parked inside gates to private flats. No markings that I can recall although parking poster outside as you drive in. No obstruction, did not park in a residents bay, just along kerbside.

Flying visit to pick up and was told that all permits had expired on 31st December and they were waiting for them to be renewed (friend has email confirming this) so all cars parked in or out of bays were without valid permits.

Tripped going into flat and fell on ankle so could not drive straight away, iced for an hour and felt ok to drive - found ticket on windscreen saying not parked in bay.

This happened at start of year. Do I explain mitigating circumstances for not leaving straight away or ignore this completely and wait and send letter not disclosing who was the driver and writing as the keeper.

Honest reason for parking there (no valid permits held by residents at the time, fleeting visit and not safe to drive after falling) but will they ignore this and should I go for the formal approach?

I'd be grateful for any advice - sorry to add yet another thread,

Thanks very much

Coupon-mad

Do I explain mitigating circumstances for not leaving straight away or ignore this completely and wait and send letter not disclosing who was the driver and writing as the keeper.

I would send the usual template appeal for BPA members from the NEWBIES thread online around day 26, but add that:

All permits had expired on 31st December and residents were waiting for them to be renewed so it is reasonable to argue that there was no valid enforcement in operation (if ever the enforcement is 'legitimate' which in a residential car park, it is often not).

Even if there was a commercial reason for 'enforcement' being in operation that day, the car was merely there to collect an item from a resident and this situation is so similar to that in Jopson v Homeguard (an Appeal case from June 2016, persuasive on the lower courts as the decision was by a Senior Circuit Judge) that the charge is not recoverable.

Add that: Leases trump signs, primacy of contract here is in favour of the residents (UKPC have no standing to unilaterally amend or vary leases and tenancy agreements). The entire operation appears to be a case of derogation from grant and if they are unsure what that means you suggest they seek legal advice.




In the drop-down menu, ONLY call yourself the 'registered keeper' (assuming you are).

Coupon-mad

Just to add, an even BETTER trick is if the resident appeals by letter (as they can't choose one of the options in the drop-down menu on UKPC's website) and uses the wording above. Nothing about who was driving. But of course giving their name and address - which UKPC will think means a resident was driving as it matches the location.

UKPC will assume this was the driver or keeper but the resident is neither, so at POPLA stage, the resident wins. No liability...

A fun version if you want to try it, with your friend's agreement (they cannot be held liable). If posting that, keep the free certificate of posting receipt you can get from any PO counter and do NOT use recorded delivery as they will not sign for it - and send it a little earlier than day 26. Maybe day 20.

And tell your friend NOT to reply if they get the usual UKPC begging letter asking who was driving...but to tell you when they eventually get a POPLA code.

Tallulah19

Thanks so much for your reply Coupon, so helpful!!

I'll look for the Newbies thread template when I get home tonight as my first time posting here.

My friend felt awful and offered to pay the ticket so sure she won't mind - thanks again

Coupon-mad

I would definitely go for my 'plan B' if the friend is up for it, but it must be by letter to avoid having to actually say who she is...let them assume wrongly! Keep the free certificate of posting and warn her there might be a waste-of-time 'tell us who was driving or you will be liable' letter first, before finally the POPLA code will just come on a rejection letter. She is never liable for this so it is a bit of a game!

This will be fun to write for POPLA stage - dear POPLA - I am the resident but I am neither the driver nor the keeper of the car (a bit more than that!).

Tallulah19

Thanks for all your help Coupon,

I'll try and emulate your nerves of steel and let you know how it goes,

Take care

The_Deep

Here is some background reading which may help if you follow the CM route



http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

https://bmpa.zendesk.com/hc/en-us/articles/213077149-Milton-Keynes-woman-secures-landmark-victory-for-flat-tenants-in-parking-dispute

http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html

http://parking-prankster.blogspot.co.uk/2016/11/ukpc-hit-for-352-for-discontinuing.html

http://parking-prankster.blogspot.co.uk/2016/11/tenancy-agreement-not-overruled-by.html

http://parking-prankster.blogspot.co.uk/2016/11/link-parking-lose-in-wrexham-flat-owner_2.html

http://parking-prankster.blogspot.co.uk/2016/11/smart-parking-settle-out-of-court-for.html

http://parking-prankster.blogspot.co.uk/2016/11/tenancy-agreement-not-overruled-by.html

Tallulah19

Thanks very much - lots of interesting links here - can't believe how much they try their luck.

I was just visiting so I don't have a residents permit but they had all expired at the time anyway and residents were waiting for them to be reissued.

I thought it was worth appealing rather than just paying up so fingers crossed - thanks for taking the time to reply,

Take care

Coupon-mad

Hope Plan B works well - it should do, as long as your friend passes you the POPLA code in good time to appeal as resident, letting them know the person they are pursuing can't be held liable. The wording of the POPLA appeal will need to cover that.

Tallulah19

Hi, need to send this off next week and have tried to follow the advice given, just not sure I've interpreted it right - if anyone has a chance I'd be grateful if you could give it a quick read over - please don't worry if not though, I'm really grateful for the advice given already.

I will be adding my friends name and her address and it will be signed by her, as of last week no expired permits had been reissued. I've looked at the POPLA appeal letter templates but assume I don't need to go into any more detail at this point?

Thanks very much, take care


Date:
Dear Sirs,
Re PCN No:

I challenge this PCN.

I believe that your signs fail the test of “large lettering” and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

All permits had expired on 31st December with residents waiting for them to be renewed (proof of this available on request) so there was no valid enforcement in operation at the time. Furthermore leases trump signs, primacy of contract here is in favour of the residents (you have no standing to unilaterally amend or vary leases and tenancy agreements). Your entire operation appears to be a case of derogation from grant and if you are unsure what that means I suggest you seek legal advice.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Should you obtain the registered keeper's data from the DVLA without reasonable cause (e.g. if you do not fully comply with the BPA Code of Practice in terms of signage at this site, for example) please take this as formal notice that I reserve the right to sue your company and the landowner/principal in your contract, for a sum not less than £250 for any Data Protection Act breach.

For the avoidance of doubt, I do not give you consent to process data from the DVLA relating to this vehicle whether you have already obtained it or not.
I have kept proof of submission of this appeal and look forward to your reply.
Yours faithfully,

Coupon-mad

Yes that looks fine, an appeal coming from the resident is a good plan which will probably make the PPC assume she was driving.