Please check my POPLA appeal - Residential PCN

twoB

Hi everyone,

I’m going to keep this as concise as possible. Many thanks in advance for taking the time to read the below. :):)

I've read through the wondrous newbies thread and previous posts similar to my situation and I think I am in an okay position for my appeal to POPLA. All I need is one of the many parking charge experts on this board to double check my draft so I can have peace of mind before submitting.

Background:

• Received 2 PCN’s within a week of each other. Reason: parking without a permit.
  
• Issued in an electronically gated residential area where every flat has an allocated parking space. I am one of said residents (tenant) and was parked in the space allocated to my flat (spaces have numbers on the ground and are also signed)
  
• Complained to MA, they told UKPC to add the vehicle to an exemption list until a new permit arrives but have stated they cannot get involved further with parking disputes (yeah, right )
  
• No mention of parking permit requirement in tenancy agreement. Estate agents never mentioned or handed one over. Landlord not even aware such thing exists (but he is totally on my side and also complaining to MA). Landlord’s leaseholder agreement also states the parking space is part of the property and will be sending me evidence of this.
  
• Naively admitted to being the driver (this was pre-mse enlightenment). But really, who else would be parking in an allocated space 24/7 if not the tenant? So no NtK or POFA 12 argument I’m afraid. Although, from reading around, opinion seems divided on admitting to driver in residential PCN cases.

Grounds of appeal:

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
   
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
   
3. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis
   
4. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

I have one query that I had trouble finding the answer to: does it matter the date the tenancy agreement was signed? i.e. if UKPC were already operating in the car park at the time of moving in, could it be argued that their services were accepted?

Thanks!

twoB

I've only included parts of the appeal that I've made amends to from the standard templates from the Newbies thread. Points 2 and 3 are the same as the ones provided by C-m.

This appeal is made as the legal tenant of the premises who has every right to park in the premises allocated parking bay. The Assured Shorthold Tenancy Agreement, which is signed by the Tenant and the Landlord, is the supreme legal document in all matters relating to the premises including parking requirements. There are no restrictions in place in the context of displaying parking permits. No third-party can adjust or amend the legal agreement with the landlord.

I received a PCN dated X. My appeal to the Operator – UKPC Ltd – was submitted and acknowledged by the Operator on X and rejected via a letter dated X. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

Summary of below points

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £60, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

LINK

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:

IMAGE

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed and difficult to read from a driver's seat. Out of the five UKPC car park signs on this site, only one is at ground level and the rest are mounted high up on lamp posts or walls. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car.

UKPC's car park signs in this residential area are inadequate and illegible in a number of ways, not least because of the sheer amount of fine print that must be read, as UKPC's own photo evidence from this PCN shows in Figure 2.

FIGURE 2

The image in Figure 2 illustrates the amount of inadequately sized text that is the case in all of the UKPC car park signs in the residential area. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, the sign does not clearly mention the parking charge which is hidden in small print. The information regarding the parking permit requirement that UKPC deemed the basis for issuing this PCN and grounds for rejecting my appeal, is severely lacking in prominence and is indistinguishable from the rest of the text. UKPC's photo appears to have been taken at an angle and the car park sign evidenced is most likely mounted high up on a lamp post, this further illustrates that the text is even less legible when reading from ground level.

The only notable text displayed in Figure 2 is the "NO UNAUTHORISED PARKING". However, a resident holding a key fob to this electronically gated residential area cannot be faulted for assuming that they are indeed authorised to park in their allocated parking space. In fact, the site entrance has multiple non-UKPC signs specifying that parking is for residents only (see Figure 3).

FIGURE 3

Figure 4 shows a wider-angle view of the nearest, visible UKPC car park sign to the tenant's parking space, giving some context to the typical size/surroundings of the sign shown in Figure 2. The image in Figure 4 was taken in similar lighting conditions to the time that the PCN was issued and shows clear evidence that:

• A sign positioned high on a lamp post is difficult to read
  
• Surrounding objects such as grit bins and parked cars make it even harder to get close enough to read the terms
  
• The inoperative (at the date/time stamped) lamp post does not provide the vital light needed to read the sign in the dark

Figure 5 further illustrates just how far away the sign in Figure 4 appears from the tenant's parking space. It is unremarkable and due to the lighting conditions, unrecognisable as a car park sign.

FIGURE 4
FIGURE 5

The entrance to the car park has no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one. Figure 6 shows that large areas of the site are unsigned. As a matter of fact, the entire left half of the diagram, where the parking space is situated, does not have any car park signs. A driver would pass only one UKPC sign (the same sign as in Figure 2) on the way to this tenant's parking space. Furthermore, this sign is located just after the entrance gate, mounted high on a wall and separated from the road by a large hedge and footpath. Inadequately sized text aside, it is not even facing oncoming traffic to allow for a driver to read and process. A driver would need to look away from the road and drastically readjust from a driving position in order to read it, which could potentially be dangerous.

FIGURE 6

This case is more similar to the signage in POPLA decision 5960956830 on 02/06/2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

LINK

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

LINK

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

LINK

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed, in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

LINK

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.



2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


Standard template from C-m's Newbies thread


3. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

Standard template from C-m's Newbies thread

4. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.


This charge is incompatible with my right to free and unfettered enjoyment of the car parking space in which the charge was levied. The leaseholder agreement for the property includes parking space XX and is owned by the landlord. A copy of the page within the leaseholder agreement has been attached along with a cover page as Evidence A. The tenancy agreement grants the tenant full use of the property, which is defined as the following:

"The Property includes all or any part of the dwelling-house, gardens, paths, driveways, fences, boundaries or other outbuildings which form part of the let. Where the Property forms only part of a larger premises (e.g. in a block of flats), the letting includes the use, in common with others, of the communal access ways and other similar facilities."

In addition, the Inventory carried out before the start of tenancy specifies and provides photographic evidence that parking space XX is included in the property (see attached, Evidence .

I therefore invoke my right to the peaceful enjoyment of the property's included parking space and make clear the case that the charge in question is incompatible with this lease.

To clearly demonstrate how the primacy of contract for the right to enjoy my parking space over any charge issued by UKPC, I refer you to the cases of Jopson – Home Guard and Pace – Mr N, which are the authority for the proposition that a parking company cannot override a resident’s pre-existing parking rights. It was held in those cases that parking restrictions including the introduction of a permit system and parking charges which caused detriment to residents was in breach of the principle that ‘a grantor shall not derogate from his grant.’

UKPC may invoke the case of Beavis – Parking Eye to assert their right to issue parking charges on private property even to residents of said property. As outlined below, this assertion is simply does not hold, and serves only to demonstrate the primacy of contract of the lease between lessee and lessor and the precedence of one’s right to the peaceful enjoyment of their parking space as set out in the lease between lease and lessor over third party interventions by private parking companies.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (see attached, Evidence C). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (see attached, Evidence D).

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

This concludes my PPLA appeal against UKPC's Parking Charge Notice, POPLA verification code XXXX

Coupon-mad

If you can, I would wait until you get this evidence to add:

Landlord's leaseholder agreement also states the parking space is part of the property and will be sending me evidence of this.

And ask the Landlord to confirm that he knows nothing about any permit regime, never agreed to one, and the property he owns was let to you with no obligation or contract to display any permit and you parked with his permission, and he has primacy of contract over your flat and parking space, which is demised to him in his lease.

POPLA codes last 33 days tops. Wait... add more evidence of the lease and your own tenancy rights, copy of the flat advert as well maybe (showing the flat comes with a space/free parking).

The_Deep

You have pulled out all the stops here, I suspect the PPC will decline to contest, well done. Ask your landlord to raise it at the next AGM, tenants should not be hassled thusly.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

twoB

Hi everyone,

Update on my 2 PCN's. My POPLA appeal deadline was 6th Apr and I submitted both in time, with some additional points regarding the leaseholder agreement and AST agreement. Got the responses back from POPLA yesterday:

1 successful, 1 unsuccessful :rotfl:

Laughable as both appeals were identical! I think it really is luck of the draw who you get as your assessor. The successful appeal included one short paragraph detailling the decision (based on signage) and the unsuccessful appeal came with a 2,000 word essay that concluded UKPC were right to issue a PCN...

HOWEVER, I have confidence that the unsuccessful decision was made incorrectly and that a procedural error occurred...due to the fact that the assessor references evidence submitted by UKPC that does NOT exist, MULTIPLE TIMES!

I know they were not submitted as I had saved all their evidence to my OneDrive so I could draft my comments. Unless they uploaded some after my comments were made? In which case I did not get a chance to see them, let alone rebut them. I haven't found any posts that mention this sort of thing. Unfortunately, once the decision has been made, you cannot access the evidence submitted.

In addition to the procedural error argument, do I mention my other successful appeal and how the two are identical? Would it harm my case to state that the evidence submitted by both parties was the same and if one assessor deems the signage to be good enough reason to allow my appeal, shouldn't the other? Or would it make them more likely to look into my successful appeal and risk them deciding maybe it was actually a fairly issued PCN? Can they reverse POPLA decisions?

I will post the assessor decision below and highlight where I think he was referencing non-existent evidence and obviously smoking something that day.

Thanks

twoB

Decision
Unsuccessful
Assessor Name
Chris Markey
Assessor summary of operator case
Parked in a permit area without displaying a valid permit.


Assessor summary of your case
The appellant has raised several grounds of appeal as follows: 1. the signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself; 2. no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice; 3. this charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis; 4. this charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.


Assessor supporting rational for decision

I am satisfied that the appellant is the driver of the vehicle on the day of the contravention. I will therefore be considering his liability as driver of the vehicle. The terms and conditions at the site state “No unauthorised parking… Terms of parking apply at all times… This land is private property and parking control is managed by UK Parking Control Ltd… Failure to comply with the following at any time will result in a £100 Parking Charge being issued to the vehicle’s driver… A valid parking permit must be clearly displayed at all times”. In this instance the parking operator has issued a Parking Charge Notice (PCN) as it alleges the motorist was parked in a permit area without displaying a valid permit. The operator has provided copies of its signage, including a site map (NO SITE MAP EVIDENCE SUBMITTED BY UKPC). Further, the operator has provided photographs showing the vehicle details XXXXXXX parked breaching the terms and conditions of the site on XXXXXXX 2018 at XXXXXXX . The parking operator affixed a PCN to the vehicle and the appellant raised an appeal as the driver of the vehicle.

The appellant has raised several grounds of appeal as follows:

1. the signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself;

2. no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice;

3. this charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis;

4. this charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park. Given this, I must consider the signage in place at this location to see if it was sufficient to bring the terms and conditions to the attention of the driver when entering and parking at the location.

Within Section 18.1 of the British Parking Association (BPA) Code of Practice it states that “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” In addition to this, Section 18.2 of the BPA Code of Practice states that “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.” Having considered the evidence provided, I am satisfied that the operator had installed a suitable entrance sign at this location (NO ENTRANCE SIGN EVIDENCE WAS SUBMITTED BY UKPC, the only entrance sign evidence was submitted by ME and it was a photograph of multiple non-UKPC signs stating 'PRIVEATE PROPERTY, PARKING FOR RESIDENTS ONLY') and this was sufficient to make motorists aware that the parking is managed on this particular piece of land. Furthermore, within Section 18.3 of the BPA Code of Practice, it states that: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” Having considered the signage in place, I am satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and conditions to the motorists’ attention. (UKPC's only signage evidence submitted was a photo of the (illegible) parking sign on the night of PCN issue and a stock example for comparison. The POPLA assessor that allowed my other appeal states in her comments: 'I am not satisfied that [UKPC] has demonstrated the location and distribution of the signs throughout the site') In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.” When entering onto a managed private car park, a motorist might enter into a contract by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore, upon entry to the car park, the driver should have reviewed the terms and conditions before deciding to park.

I acknowledge the appellant has provided photographs of signage at night within their appeal. However as the tenant, it would be reasonable to assume they were able to view the signage during the daylight hours. (What if I am only ever parking my car at night?) The minimum standard for parking signs is set out in section 18 of the British Parking Association (BPA) Code of Practice. By the appellant’s own admission, he confirms awareness of the signs displayed. (I don't think I ever made this admission? Can it be construed from my initial appeal to UKPC?) This therefore confirms the appellant’s ability to view the signs and to make a judgement as to whether to remain on site following review of the terms and conditions. The appellant states the parking operator has not provided landowner authority. The operator has produced a witness statement to prove they can operate on the land. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. I am satisfied that the witness statement provided by the operator meets the requirements of Section 7 of the British Parking Association (BPA) Code of Practice.

This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis. The legality of parking charges has been the subject of a high profile court case, Parking Eye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must consider the minimum standards set out in Section 18 of the BPA Code of Practice. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

As previously stated I am satisfied that the operator has complied with S.18 of the BPA and the signage at the site is “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.” Furthermore, I am satisfied that the signage at the site is sufficient to bring the parking charge to the “adequate notice” of a driver entering this particular piece of land. On this basis, I am satisfied that the parking charge is acceptable after applying the rationale adopted by the Supreme Court in the Parking Eye-v-Beavis case. The Supreme Court decision is binding law on all other courts throughout the UK.

By their own admission, the appellant has stated within their appeal to the parking operator, “I have been informed that the UKPC parking permits belong to the flats themselves and the previous tenant’s should have left flat XX's permit with the estate agents. No permits were given back to the agents and nor did the agents mention anything about parking permits to me. Unfortunately this meant I was unaware of the parking permit requirement until I received the fines. My landlord is applying for a new parking permit from XX. XX has also contacted UKPC to add my car to the exemption list whilst the permit is pending. I understand that it is my fault for not personally inquiring about parking rules at the commencement of my tenancy and was hoping that the explanation above could prompt UKPC to reconsider the parking charges”. However I am unable to allow an appeal simply based on mitigating circumstances. It is at the discretion of the operator to review any mitigating circumstances presented. Normally, in circumstances such as the appellants I would refer this for a mitigation review based on the information provided. However, on review of the evidence from the operator, it is clear that it has considered the appellants mitigating circumstances as part of the first appeal and confirmed this made no impact on the validity of the PCN. The contract undertaken at the site is between the operator and the motorist and not a member of staff working at a third party organisation at the site. A third party conversation would have no impact on the motorist’s ability to form a contract with the operator through the signage offered. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If a motorist is in disagreement with the terms and conditions offered or feels that the terms and conditions cannot be complied with, there would be sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site without displaying a valid permit, the appellant accepted the terms and conditions offered.

There is a human side to parking appeals and, like in this instance; this can make the refusal of some appeals uncomfortable. Nonetheless, it is simply not within our remit to allow an appeal on mitigating circumstances. POPLA is evidence based (HA) and can only assess an appeal based on the evidence presented by both parties. The evidence supplied by the appellant in relation to this appeal is insufficient to disprove that provided by the operator. After considering the evidence from both parties, I am satisfied the parking charge notice has been issued correctly. Therefore, this appeal must be refused.

Coupon-mad

Can they reverse POPLA decisions?

Yes, see the end of the POPLA Decisions thread, we had one a couple of weeks ago.

I hope you read the NEWBIES thread again and saw that UKPC are currently BANNED from getting DVLA data (again), which means:

- they can't get your data if they issue a fresh PCN now. So if you get one DO NOT APPEAL.

- someone at your site(!) should write and tip the Managing Agents off that UKPC are banned by the DVLA for the second time right now and perhaps they might now hurry up and end the contract and not bother with another ex-clamper thug firm, because the site does not need this harassment.

- someone at your site(!) might want to print off flyers and put one through each door, telling all residents that the parking firm is currently banned by the DVLA and to join you in seizing the opportunity to get UKPC kicked off site for good, and NOT replaced with another scumbag firm:

https://www.independent.co.uk/news/uk/home-news/uk-parking-control-dvla-suspension-misuse-of-data-a8325941.html

Do that this weekend, a real fightback.

twoB

Thanks for the advice re UKPC being banned, our site has recently switched to a committee run by actual residents due to being fed up with the previous MA and UKPC. As far as I know, they are in the process of getting rid of UKPC from the site altogether but I will inform them in hopes that it will speed up the process.

Do you mean this post where the appeal went from unsuccessful to successful by scamdodger? Sorry I can't link. Earlier I was asking if POPLA can change a decision from successful to unsuccessful?

Coupon-mad

I was asking if POPLA can change a decision from successful to unsuccessful?

Yes we have seen that as well, last year someone had a successful POPLA decision reversed when the PPC complained that some evidence wasn't properly considered.

twoB

Okay then, I don't think I will mention my successful appeal in my complaint then. Just to make sure, do I have sufficient grounds to complain of a procedural error if my POPLA assessor has referenced evidence that did not exist at the time of my rebuttal? Are PPC's able to upload evidence after I made comments?

nosferatu1001

Yes, that is clearly an error
Either the evidence didnt est, and the assessor made it up
OR
not all evidence was made available to you, and the missing eidence you never saw CANNOT be considered by the assessor as you have not had chance to rebut it .

As UKPC are suspended, chec kthe contract - possible you can terminate them for that.