UKPC (again) got my POPLA code after failed appeal.

make-me-a-winner

So this is my 3rd ticket from these fools for parking at mates house which doen't have a visitors parking.....for parking out "marked bay". they cancelled the "invoice" 1st time after the first on line appeal....


2nd time UKPC had there DVLA rights taken away so I didn't get anything after the windscreen ticket.



3rd! (current) Followed the steps again on the noobs thread, sent over the first appeal template...this was a windscreen tickets by the way. I had my NTK etc....



I've been sent a letter saying "it was correctly issued" and the "signs are there" so the "invoice" is still outstanding.....



So I have the POPLA code.


Question: I'm kinda lost in the noobs thread on what I need to do next? Do I need to appeal to POPLA or back to UKPC?

Thanks in advance fella's..your doing great work keeping these thieves pockets a bit less empty with all your expertise :T

Redx

see post #3 of the NEWBIES thread if you have a popla code, and start drafting a popla appeal


waste of time going back to UKPC if they refused your appeal and issued a popla code , that door is firmly shut now with popla your only option (and also a landowner complaint of course)

make-me-a-winner

Redx wrote: »

see post #3 of the NEWBIES thread if you have a popla code, and start drafting a popla appeal


waste of time going back to UKPC if they refused your appeal and issued a popla code , that door is firmly shut now with popla your only option (and also a landowner complaint of course)

What would me appeal be leaning towards? sign age? lack of car parking spaces?



I didn't know what category my appeal would, i wanted to find existing threads for the same sort of ticket.


"correct path for appeal" I mean

Umkomaas

These are the main areas of appeal you need to research and understand and decide which fit your situation.

1. No keeper liability, including Notice to Keeper errors (PoFA 2012)
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. No Contract to manage parking
4. Signage
5. Consumer Rights Act 2015
6. BPA Code of Practice breaches
7. Why Beavis doesn't apply in your parking event

Thanks in advance fella's..your doing great work keeping these thieves pockets a bit less empty with all your expertise

While we do our bit, but it might have passed you by that those who give 'these thieves' the opportunity to fill their pockets are those who ignore what their signage says and park wherever they like, especially those who continue to do so.

make-me-a-winner

Umkomaas wrote: »

While we do our bit, but it might have passed you by that those who give 'these thieves' the opportunity to fill their pockets are those who ignore what their signage says and park wherever they like, especially those who continue to do so.

That being the key wording...The site is a housing development, they have removed visitors car parking to build new houses! yet have no parking for existing home owners or new ones or also legit "visitors" also they seem to pick who the give a ticket too! I have pictures of people the have parked on a roundabout...yes! but since this it's near the entrance to the development site they don't seem to issue tickets to those! only people who park outside the persons house they are visiting.



sorry ranting to the wrong person haha. Thanks for the points I will research them :beer: is it ok to post finished appeal on here for a check over?

make-me-a-winner

Is this a good start?






" [FONT=Verdana, sans-serif]Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxx and I am appealing a parking charge which was issued XXX from UKPC on the following points:[/FONT]


[FONT=Verdana, sans-serif]1 - The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

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

3 - 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

[/FONT]

[FONT=Verdana, sans-serif]1- The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found: [/FONT]
[FONT=Verdana, sans-serif]
[/FONT][FONT=Verdana, sans-serif] ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''[/FONT]
[FONT=Verdana, sans-serif]
[/FONT]
[FONT=Verdana, sans-serif]
[/FONT]
[FONT=Verdana, sans-serif]2 - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2: If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3: 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[/FONT]


[FONT=Verdana, sans-serif]3 - 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 £sum, 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:

https://imgur.com/a/AkMCN

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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
[/FONT]
[FONT=Verdana, sans-serif]
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, indeed obscured and hidden in some areas. 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.

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, these signs do not clearly mention the parking charge which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, 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 less than 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.


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

PHOTO

''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.''


''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 less than 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:

PHOTO

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 " [/FONT]

Umkomaas

1 - The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

This isn't a standalone appeal point. If UKPC have met PoFA requirements and are holding the keeper liable, there is no need for them to have to identify the driver. They will have already invited the keeper to do that, and if they haven't, they have the right to pursue the keeper.

Was their NtK fully compliant with PoFA in terms of meeting the required timescale for receipt and the wording contained in it?

In my post #4 I gave you a longer range of possible appeal points. Are you working on some of these, or are you going to rely on the 3 points (possibly just 2 in view of my words above) you've drafted?

Fruitcake

You need your own images of their signs at the site. I have yet to see a UKPC sign that meets the requirements of the BPA CoP. See if you can read the fine print where the charge is buried, at more than a few paces.

make-me-a-winner

Umkomaas wrote: »

This isn't a standalone appeal point. If UKPC have met PoFA requirements and are holding the keeper liable, there is no need for them to have to identify the driver. They will have already invited the keeper to do that, and if they haven't, they have the right to pursue the keeper.

Was their NtK fully compliant with PoFA in terms of meeting the required timescale for receipt and the wording contained in it?

In my post #4 I gave you a longer range of possible appeal points. Are you working on some of these, or are you going to rely on the 3 points (possibly just 2 in view of my words above) you've drafted?

I have the NTK, it was sent 32 days after the windscreen ticket.



says' at the bottom



"if, After 28 days, the amount requested in this Notice has not been paid in full You the registered keeper under the terms of schedule 4 of the Protection of Freedoms Act 2012 will be liable to pay the unpaid Parking Charge"


So I'm guessing they can chase the keeper!

Sorry I'm struggling with getting all the information, it's frying my head!



What i have done is checked other peoples appeals and copied the points that you said etc Land Authority, sign age etc.



I couldn't find the other points, No Contract to manage parking..


I'm going be honest I find all the legal stuff hard to get my head round, it's all gobbledigoop to me

make-me-a-winner

Fruitcake wrote: »

You need your own images of their signs at the site. I have yet to see a UKPC sign that meets the requirements of the BPA CoP. See if you can read the fine print where the charge is buried, at more than a few paces.

They have taken a pic of their sign which is blurry so you can't make out any of the words in the photo.



I can go and take my own fresh picture of the sign?

Coupon-mad

"if, After 28 days, the amount requested in this Notice has not been paid in full You the registered keeper under the terms of schedule 4 of the Protection of Freedoms Act 2012 will be liable to pay the unpaid Parking Charge"


So I'm guessing they can chase the keeper!

You guess wrong, if you transcribed that wording exactly...come on, compare it to Schedule 4, that's why I link the Act in the NEWBIES thread, so people can spot the difference and see the NTK is not compliant with 9(2)f (and maybe other sections).