UKPC PCN - Should I appeal?

Coupon-mad

So put that in your POPLA appeal and point out that they are trying to presume that a keeper responding to a windscreen PCN was the driver. An operator can't do that; there has to be evidence and in this case the driver has never been named and won't be.

Quote Henry Greenslade's section on keeper liability, in the POPLA Annual Report 2015.  It nails the position.

If it were as simple as 'driver presumption' against a keeper appellant, there would have been no need for Schedule 4 at all.  In fact, a PPC must comply with the POFA and can't assume a keeper parked the car.  A keeper can be a passenger - or not even in the car park - and yet is perfectly entitled to appeal to a windscreen PCN that they are told about.  As UKPC are out of time to issue a NTK the PCN cannot be enforced against this appellant.

And show POPLA a photo of that £50/£35 Sign, embedding the metadata into it, to show the date and time you took that photo. Point out that it is beside the payment machine, so it is the only sign that most drivers would read and learn the t&cs from.

And of course it is not only incapable of creating a contract to pay £100 but it is also in clear breach of the BPA CoP.  £35 is only a 30% discount but they are required to offer on signage a mandatory 40% minimum discount, so the sign at the machine at this site breaches a fundamental part of the BPA rules.

webchimpx

Thank you all so much for your help so far.

I have penned the following response that I will be submitting to POPLA - I wonder if you wouldn't mind giving it a quick once over?

I am using a 5 point defence, of which points 1, 3 and 5 will be copied verbatim from stock responses I have seen on this forum. I have omitted these here for brevities sake.

Point 2 - I have added my own text in italic to add to the argument around presumption of driver ID.

Point 4 - My own words in italic text around specific breaches of BPA CoP.

Regards

---

POPLA Ref: CCCC

Vehicle Registration: AAAA

UKPC Ref: BBBB

I am the registered keeper of vehicle AAAA and am appealing a parking charge from UK Parking Control Ltd (UKPC) (Operator) on the following points:

1. A compliant Notice to Keeper was not served - no Keeper Liability can apply.

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 evidence of Landowner Authority - the Operator is put to strict proof of full compliance with the BPA Code of Practice

4. Parking charge does not match the charge displayed on signage, nor are the charges stated compliant with BPA Code of Practice

5. 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

 

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

** Omitted Template text **

2. 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, in correspondence received on 14/12/2021 the Operator itself states their charge does NOT meet the strict requirements of the POFA 2012. An extract from this letter (attached) is as follows:

“As we are out of time to request the keeper’s details from the DVLA, this Parking Charge Notice does not meet the requirements of the Protection of Freedoms Act 2012. However, it is a misconception that non POFA notices cannot be used to hold you liable for the outstanding charge. It is our position that there is a rebuttable presumption that you, the person who had responded to the Parking Charge Notice with your appeal, were the driver at the time of the parking event, and therefore are liable for the charge as incurred. You have not provided us with evidence to the contrary.”

Clearly the Operator is making a presumption over the identity of the driver of the vehicle at the time of the parking event.

This 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:

''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.''

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

** Omitted Template text **

4. Parking charge does not match the charge displayed on signage, nor are the charges stated compliant with BPA Code of Practice

The PCN placed on the windscreen of the vehicle on 03/10/2021 showed a charge for £100 reduced to £60 if paid within 14 days.

Images x to x show the signage in place near the parking machine on the date of the parking event. This sign is the one most likely to be seen by motorists as it is directly on the route between the car park and the retail and leisure facilities available at this site.

<images of sign to be added>

It can be clearly be seen that the signage states the charge is £50 reduced to £35 if paid in 14 days.  This raises two additional reasons why this appeal should be allowed in this circumstance:

1.       The reduced charge of £35 is only a 30% discount from the initial charge of £50, however the Operator is required to offer on signage a mandatory 40% minimum discount. On this basis it can clearly be seen that the sign at the machine at this site breaches section 20.7 of the current BPA CoP (Version 8), which states:

“If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost must be by at least 40% of the full charge.”

2.       The current BPA CoP (Version 8) section 20.3 states:

“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.”

The charges shown on signage, stating £50 reduced to £35 if paid within 14 days is clearly incapable of creating a contract to pay a charge of £100 reduced to £60 if paid within 14 days.

5. 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

** Omitted Template text **

Coupon-mad

Looks great as long as you embed the time and date into your signage pics.

webchimpx

Hi All,

Quick update for those interested

- POPLA appeal submitted 19th December

- I heard today that the case has been withdrawn by the parking operator.  

POPLA state:

"UK Parking Control Ltd - EW have told us they do not wish to contest the appeal. This means that your appeal is successful and you do not need to pay the parking charge."

The letter from UKPC laughably states:

"Thank you for your recent correspondence in relation to the above parking charge. We appreciate the inconvenience this has caused you. It is not our intention to cause undue worry and frustration when enforcing our clients' parking regulations.

We have investigated the appeal based on the information you have submitted and confirm that in this instance the parking charge has been cancelled. "

Many thanks for all the help I have received on this forum, most especially from @Coupon-mad!

Coupon-mad

Very good.