To POPLA or not to POPLA

Coupon-mad

Near me then, South Coast?

How dare a rejection letter lie about POPLA like that!  Please name the PPC.

Definitely show that rejection letter as evidence to POPLA.

BettyBooHoo

Coupon-mad said:

Near me then, South Coast?

How dare a rejection letter lie about POPLA like that!  Please name the PPC.

Definitely show that rejection letter as evidence to POPLA.

Very good Coupon-mad! Yes, South Coast(ish). 
PPC = UKPC Ltd.

I'm just about to post my appeal letter and would be grateful for your views.
I have several photographs and other supporting items (including the rejection letter), do you want me to upload them here as well?

Thanks again.

BettyBooHoo

Coupon-mad said:

Question - Do I (dare I) use that POPLA reference to submit an appeal 

Yes, use it if the BPA gave it to you.  Show us your POPLA draft first.

Just tried to submit my draft letter but it's too long to post as a comment! Should I break it down into sections or is there another way for you to view it?

KeithP

Over more than one post is fine.

BettyBooHoo

Dear POPLA Adjudicator,

I am the registered keeper of vehicle ********* and am appealing a parking charge from UKPC 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. The PCN fails to comply with BPA Code of Practice – Appendix C

Schedule 4 of the Protection of Freedoms Act 2012, Recovery of Unpaid Parking Charges

5. The signs in this car park are not prominent, clear, or legible from all parking spaces.

6. The operator has failed to comply with BPA Code of Practice – Complaints, challenges and appeals, Section 23.4

7. Issues regarding submitting an appeal to POPLA.

1. A compliant Notice to Keeper was not served in accordance with Schedule 4 of POFA 2012 - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 of the Protection of Freedoms Act 2012 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability does not apply.

The Protection of Freedoms Act (POFA) 2012 states (inter alia):

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. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The Notice To Keeper (NTK) must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As at day one hundred and fifty seven (157), no such NTK had been received by the registered keeper and as this operator has evidently failed to serve a NTK within the stipulated time period, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

BettyBooHoo

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.

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.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, a 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.''

In their letter dated 13th December 2020 (see attached), UKPC state:

“The notice that was issued to you was initially issued to you on your windscreen. This was then removed by yourself which you then proceeded to appeal on our website, admitting that you were the driver, as you had picked up the parking charge notice off your windscreen before leaving our car park – this is an acceptance of service of the Parking Charge Notice.”

 The letter went on to state:

“Please note further, as per the POPLA website, if you the keeper of the vehicle persist that you were not the driver of the vehicle, POPLA cannot accept your appeal. In order to appeal you need to be the driver, named on the Parking Charge Notice or doing this on behalf of someone else in these 2 categories. If you submit an appeal to POPLA in your name, they will treat you as the driver of the vehicle, and that you have admitted to be the driver of the vehicle, even though you have not admitted this in your correspondence/ appeal with UK Parking Control Ltd.”

I contend that the language used by UKPC in this letter:-

·       is a flagrant disregard of the truth

·       is a deliberate attempt to intimidate

·       contravenes Mr Greenslade’s 2015 ruling

·       is testimony to the fact that they have failed to fully consider my appeal dated 14/10/2021, made as the Registered Keeper of the vehicle only

·       breaches the British Parking Association Approved Operator Scheme Code of Practice regarding Complaints; Challenges and Appeals (Section 23) as a review of the facts was not adequately conducted.

·       is a deliberate misrepresentation of the appeals process as their statement that POPLA will not accept appeals from Registered Keepers applies only to BPA Code of Practice: Operational Requirements in Scotland and Northern Ireland.

 

 

BettyBooHoo

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

Subsequent attempts to establish the identity of the Landowner in order to dispute the PCN and complain about the poor signage relating to parking restrictions have proved unsuccessful, despite calls to:-

1.     All retail premises located at numbers 1 – 21 The Martletts (sic), Crawley, RH10 1ER.

2.     Crawley Town Council

3.     NCP Ltd

Plus:

4.     Open Source research

5.     A written request that UKPC provide details of the landowner – which they have refused, stating “Due to GDPR we are unable to provide our clients details”

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.

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

 

4. The PCN fails to comply with BPA Code of Practice – Appendix C

Schedule 4 of the Protection of Freedoms Act 2012, Recovery of Unpaid Parking Charges

The printing on the PCN was inadequate due to overtyping and failed to display readable details of the parking charge and the reduced charge if paid within 14 days (see photograph 1) It thus fails to comply with Section 7 - Schedule 4 of the Protection of Freedoms Act 2012:

7 (1) A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must:

(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;

(c) inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is: (i) specified in the notice; and (ii) no later than the time specified under paragraph (f);

(d) inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available

 

BettyBooHoo

5. The signs in this car park are not prominent, clear, or legible from all parking spaces.

BPA Code of Practice, Section 19.2 states (inter alia):

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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park.

 Upon entering the Parkside car park, the driver’s attention is drawn to a large, yellow NCP sign giving details of parking charges (see photograph 2). The driver of vehicle ********* purchased a parking ticket from the NCP machine on 19/09/2021 at 1142hrs: cost = £2.60 (see photograph 3). (Note: the PCN was issued at 1149hrs).

There are no discernible markings on the parking bays to suggest that they are separate to the NCP operated area (see photograph 2).

A visit to the Parkside car park on 23/10/2021 at 1500hrs provided a clear demonstration that the signage is inadequate as I observed that multiple vehicles had been issued with PCNs in similar circumstances (see photographs 4, 5 & 6). It is worthy of note that a UKPC parking attendant can be seen in photograph 4 surveying activity within Parkside car park, ticket machine at the ready, in what could be described as a predatory manner, further suggesting that unwitting motorists regularly fall victim to the obscure signage in Parkside car park and providing an explanation for the fact that PCN *****************  was issued within only seven minutes of the driver parking the  vehicle.

 

6.The operator has failed to comply with BPA Code of Practice – Complaints, challenges and appeals, Section 23.4.

Section 23.4 of BPA Code of Practice states:

If a driver or keeper appeals a parking charge you must review the case and decide whether to:

• uphold the parking charge and explain why it was issued and should therefore be paid, or

• reduce or cancel the charge and take no further management action other than informing the driver.

In their letter dated 13th December 2021, UKPC have provided the following:

“…we confirm that this parking charge was correctly issued because there are sufficient signs at

advising drivers that vehicles .”

Clearly this is a cut and paste statement that provides neither the location at which they claim there to be sufficient signage nor details of what those signs advised and is yet further evidence that they have failed to adequately review their case. (see their letter in full aside)

 

BettyBooHoo

7.Issues regarding submitting an appeal to POPLA:

 In compliance with appeal procedures, I attempted to submit details of a Registered Keeper appeal via the POPLA website on 10/01/2022. The website was experiencing technical problems and would not upload attachments (see attached). As evidence of my attempts to comply, I left a message on the POPLA contact page (see attached). I also submitted a complaint to BPA regarding UKPC Ltd non-compliance with the BPA Code of Practice. BPA investigation **** was opened.

Despite the ongoing investigation and BPA communication with UKPC Ltd, debt recovery letters were issued on 21/01/2022 and 09/02/2022: a further breach of BPA Code of Practice:

23.12a If an appeal is being considered by the IAS, the debt recovery process must not be commenced/ recommenced until the outcome of the case is known. We would expect operators to have systems in place to ensure that this does not happen.

While I accept that a complaint to BPA does not constitute an appeal to POPLA, by opening their investigation BPA had accepted the mitigating circumstances regarding the inability to appeal via the POPLA website and so the debt recovery process should not have been invoked.

On 18/02/2022 I received an email from BPA advising that UKPC Ltd would provide me with a new POPLA reference in order that an appeal could be submitted. A further appeal rejection letter dated 18/02/2022 was received from UKPC Ltd (completely different wording from that of 13/12/2021) however, the POPLA reference provided in association was *************** – the same as that issued on 13/12/2021 and which had expired. Having raised this matter with BPA, I received an email from them on 23/02/2022 stating:

“UK Parking Control have advised to use the POPLA code: ***********"

I replied to BPA on 23/02/2022 advising that I required formal notification of this reference number from UKPC Ltd.

I sent emails to BPA on 02/03/2022 and 03/03/2022 reminding them that, in failing to send formal notification of the revised POPLA code, UKPC Ltd were in breach of BPA Approved Operator Scheme Code of Practice, 23.12:-

“If you reject an appeal you must: • tell the motorist how to make an appeal to IAS. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter”

Despite the POPLA code having been generated on 18/02/2022, no formal notification has been received.

 

I would be grateful for your consideration of the multiple grounds highlighted in this appeal that provide further evidence of the contemptible practices exhibited by UKPC Ltd that bring further discredit to the private parking industry as highlighted in the House of Commons:

.......Hansard link here..... 

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

 

Yours faithfully,

 

BettyBooHoo

Don't panic - in the photographs I am planning to submit to evidence the multiple PCNs issued, I have redacted the registration plates of the affected vehicles!