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

RBLUE7

Hi everyone. 
Hope you are well. 
Today I would like to upload my appeal draft to Popla.
May I ask if they expect to upload as an evidence the notice to keeper received from UKPC where is the picture from the back , also the time when the "supposed" parking charge ticket was issued?There was no windscreen ticket. 
Thank you all for your answers. 

Grizebeck

No you dont need to

Fruitcake

You are not expected to do anything, but my advice is to include as many points as you can that are relevant. You only have to win on one point whereas the PPC has to win them all.

If there is something relevant in the NTK that will help you then include it.

Your main point however is to state that UKPC have failed to provide any evidence that the driver left site.
Other points will include, where relevant: -

Not the landowner
No standing to issue charges in their own name
Inadequate signage, because UKPC's signs always fail to show clearly the amount of the charge for breaching T and Cs
BPA CoP failures
PoFA failures
Anything else relevant.

If your draft won't fit in one post then spread it across more than one. 

RBLUE7

After days of reading many helpful advices on this website I end up to create this popla draft which suits my case:

Dear Sir/Madam,

As the registered keeper of the below vehicle, I wish to appeal parking charge issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

POPLA Ref:

UKPC Ref Number:

VRN:

1.    Insufficient evidence of the alleged contravention - No evidence that the driver ‘left the site’

2.    No site boundary defined.

3.    Non-Compliant Signage

4.    Lack of standing / authority from landowner

1.    No evidence 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 appeaI, 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.

2.    No site boundary defined.

Nowhere on the signage does it state:
- What the site boundary is.
- Show any map of where site boundary begins and ends.

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 the 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.

Even if a sign says a charge can be issued for 'leaving the site', this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.

RBLUE7

3.The signage was not compliant so there was no valid contract formed between UKPC and the driver.

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

 As such, the signs were not so prominent with their terms and conditions that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park in the event that they left the site- and therefore I contend the elements of a contract were conspicuous by their absence. The signage is not a contract or offer of a contract but an invitation to treat.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 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, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 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. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (£100) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

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.

RBLUE7

4. No 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 - 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.”
Section 7.2 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.”

Section 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.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

Some parking companies have provided "witness statements" instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow UKPC to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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.

I require UKPC to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically worded contract with the landowner, not merely a 'standard business agreement'; with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 Parking Eye v Clarke 19th December 2013.

Taking all the above into account, I respectfully request that this parking charge notice appeal be allowed and await your decision.

Coupon-mad

That's fine - and very good indeed, bearing in mind you told us: "english is not my first language".

Nice work.

RBLUE7

Coupon-mad said:

That's fine - and very good indeed, bearing in mind you told us: "english is not my first language".

Nice work.

That is very kind of you for reading and confirm that is well created. 

B789

Just to be clear, are you appealing as the "driver", the "registered keeper" or both?

RBLUE7

As the registered keeper, but the driver identity was revealed in the first appeal to UKPC.