NTK-from UKPC- Driver left site designated for customer parking only

Grizebeck

Concentrate on no evidence of driver leaving site

RBLUE7

 

Hello everybody, 

First of all, thank you for reading this. 

As I followed your advices, Popla Code was received to the register keeper. 

The draft to Popla is the bellow:

Dear Sir/Madam

 As the registered keeper, this is my appeal about the notice to keeper issued by UK Parking Control Ltd for an alleged breach of the company's terms and conditions in the xxxxx on the 01.01.2023.

POPLA Ref: xxxxxxx

UKPC  Ref Number:xxxxxxx

VRN:

1. UKPC have failed to prove that the driver left the site
2. The site boundary is not definied
3. No evidence of Landowner Authority

1. UKPC have failed to prove that the driver left the site

The notice to keeper states that the reason for issuing the charge notice is: “Driver left site designated for customer parking only.” 

No evidence has been provided from UKPC showing the vehicle driver leaving the site and I require UKPC to provide this. Such evidence should include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.

The burden of proof shifts to UKPC to prove otherwise and to explain why their attendant presumably:
1. Watched a driver or occupant walk towards the edge of an undefined boundary.
2. Did not attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises.

The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012 District Judge McIlwaine stated:
“you say he left the premises...where does the premises start and where does the premises finish?....there is a duty to mitigate the loss.”

In this case now under POPLA appeal, I contend that UKPC has neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

 

2. No site boundary defined.

The signs do not define 'the site' or show a map detailing the limits of 'the site' therefore a motorist could not know if or when they have left 'the site.

Nowhere on the signage does it state:
- What the site boundary is.
- Show any map of where site boundary begins and ends.
- That leaving the site fails to comply with terms and conditions.

I require evidence from UKPC to show a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.

No explanation has been provided as to what constitutes “leaving the site” and it has not been established whether the driver was on site all along. The only evidence provided are pictures of a car parked within a parking bay. If no such sign or evidence exist, then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of proof, I deny that there was any contravention. As a result, there was no contract formed with the driver to pay a charge in exchange for going off site; there was no consideration, offer or acceptance and no site boundary defined.

There was no attempt by the warden to advise in order to mitigate losses. I contend that UKPC have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

The signage on site is inadequate as it does not define the site boundary therefore it is impossible for a driver to know if they have or have not left the site. The terms and conditions on the signs are in tiny font and unreadable, and the £100 charge for breaching the terms and conditions is too small to form a contract with a driver.

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

As UKPC 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is vital evidence to define what this operator is authorised to do, and when/where. 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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

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

Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Sections 7.21 states: 

“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.”

Sections 7.3 states:

“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”

I put UKPC to strict proof of compliance with all of the above requirements.

I do not believe that UKPC mere site agreement as a contractor issuing notice to keeper and letters 'on behalf of' the landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC (not that a keeper can be liable anyway on non-relevant land and UKPC cannot enforce byelaws themselves). UKPC have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.

In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So, if the operator produces a witness statement mentioning the contract but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers setting foot beyond the boundary of a car park.

Taking all the above into account, I therefore respectfully request that my appeal is upheld, and the charge is dismissed.

Hi everybody, 

First of all, thank you for reading this. 

As I followed your advices, Popla Code was received to the register keeper. 

The draft to Popla is the bellow:

 

May I ask you what evidence did Popla expect? The photo with the notice to keeper? 

Many thanks everybody. 

Fruitcake

Where is the inadequate signage point? All UKPC signs are inadequate because the £100 charge is in tiny font and unreadable. 

Whilst you only need PoPLA to side with you on one point, the more points you have the better chance you have of winning.

1505grandad

"This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC (not that a keeper can be liable anyway on non-relevant land and UKPC cannot enforce byelaws themselves).

Is the site subject to byelaws?

RBLUE7

1505grandad said:

"This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC (not that a keeper can be liable anyway on non-relevant land and UKPC cannot enforce byelaws themselves).

Is the site subject to byelaws?

I am not sure about that. 

Grizebeck

RBLUE7 said:

1505grandad said:

"This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC (not that a keeper can be liable anyway on non-relevant land and UKPC cannot enforce byelaws themselves).

Is the site subject to byelaws?

I am not sure about that. 

No ukpc dont do byelaws

RBLUE7

Fruitcake said:

Where is the inadequate signage point? All UKPC signs are inadequate because the £100 charge is in tiny font and unreadable. 

Whilst you only need PoPLA to side with you on one point, the more points you have the better chance you have of winning.

Thank you @Fruitcake
May I ask if I add point 4, will be any chance to win at POPLA with this arguments?

. 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

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:

Picture

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:

Picture

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. Photo attached of the car park.

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 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:

weblink

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

weblink

''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 just half a cm, 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:

weblink

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 provide 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.

fisherjim

May I ask if I add point 4, will be any chance to win at POPLA with this arguments?

. 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

You will need evidence of this with your own dated photos, which can be a winning point.

However, UKPC are old hands at producing generic office original copies of signage, sometimes not even for the site in question, and some gullible POPLA assessors fall for it if you do not prove otherwise.

Grizebeck

You have already been advised to concentrate on denying leaving site.
End of

patient_dream

Hopefully POPLA  will realise that such a claim by UKPC is fruitless

As fisherjin says, UKPC signs are useless so go and get your own pictures and especially the entrance signs