Leased Company Car Parking Charge - Timeline for Contesting It?

NattyKnitter

First ever post so if I've done this wrong or put it in the wrong place please forgive me.

I would appreciate some clarification on the dates for replying to contest a parking charge.  I have read many of the posts/discussions and the PFOA but I'm still unclear about when I should context a charge - should I leave it 21 days or 28?

The small company I work for lease a car from Lex and have received a letter from UKPC.  The letter starts with Re: Parking Charge and details the car having exceeded a 3 hour limit by 49 minutes at a retail park in Leeds.  The driver was legitimately using the retail park but had no idea there was a time limit (has been using the retail park for many years and has never seen or looked for signs!); has a number of receipts, but the final hour and 50 minutes or so was spent in a cafe with a friend (no receipt as the bill was paid in cash and no receipt was given).  On first being informed of the charge the driver tried to contact the retail park by email as it seemed unfair as they were genuinely using the site, but has had no reply.

Date of Charge: 01/03/23

Date on original letter: 04/03/23  (letter from UKPC to Lex - can now be seen on Lex web account)

First informed:  14/03/23  (email from Lex to company charging an admin fee)

Date on letter to company:  23/03/23  (letter to company from UKPC, received on 27/03/23)

Charge Cost:  £100 (or £60 if payment received within 14 days)

The letter to the company has the relevant parking charge details and a photo showing time and car plates.  It states that " If you were not the driver at the time of the breach, UKPC invite you, the Hirer, to pay the Parking Charge or provide us with the name and address of the driver so that we may write to them and request payment: you should also pass this Parking Charge to the driver."  It also states under PFOA section that ".. you are now liable to pay the unpaid Parking Charge".  Is it saying that the driver or the hirer is liable?

However there is no other supporting documents such as those stated in the PFOA. 

My question - when should I contest this?   (It does seem unfair as the driver was using the retail park but has not got anywhere with the site management.) 

I have read the PFOA but I'm confused about the "relevant period". 

The PFOA seems to suggest that my company should receive the hire agreement copy and statement of liability etc within 21 days.  Is this  21 days from the date on the parking charge notice to my company?  We have had no documents with the charge letter. 

Furthermore the charge letter states:

"If no payment or representation is received within 28 days the outstanding debt will be forwarded to a debt recovery agency, at which point additional charges will apply in accordance with the terms and conditions of parking"

So should I contest this within 21 days or 28 on the grounds that UKPC have not supplied the correct documents?  I have read other peoples posts and read somewhere that there is a "sweet spot"  to send a contesting letter.  I am unclear why UKPC have said 28 days - do I contest between 21 and 28 so that they can't send me documents in that time?  Nowhere on the letter is there a mention of 21 days which seems to be at odds with the PFOA section14.5c  but does refer to 8.2f.

As I can't contest by email (only given a postal option with a PO Box) I would be grateful if someone could clarify when I need to contest.  The back of the letter state that if I want to have the charge reviewed I can do so withing 28 days (beginning the date after this notice is given).  With the Easter weekend approaching I don't want to leave this if I need to get on and write a letter as the company director will be going on holiday and presumably will needs to sign the contesting letter.

Finally on a slightly ironic note UKPC didn't even get the spelling of the company name correct - missing out  a letter!

Coupon-mad

You don't delay the appeal. It's not a windscreen PCN.

Is that NTK even addressed to your company though?

NattyKnitter

Thanks for your reply  C_m.

 I was a little confused about the time line as I thought I had read somewhere that the NTH document didn't need to have the other documents (hire agreement and NTK etc) attached but that they could be sent by UKPC at any time within the "relevant period".  I have now read a few more posts about parking charge notices and the PFOA again - would I be correct in assuming that the NTH must have the other documents attached at the time of sending the NTH?  If UKPC haven't sent them with the NTH they cannot send them later and claim that they have sent them in the time period allowed?

Please could you clarify this point for me - I am not used to dealing with this type of problem (the company have only had a leased car for one year and it's their first one ever).

Secondly when you ask about the NTK being addressed to the company - it was the NTH (although it doesn't specifically say that) but are you challenging it on the premise that there is an incorrect spelling?  Can I use this in any way? 

I'd be grateful for any comments before I write to UKPC. Thanks

Coupon-mad

No I was wondering if it was only the NTK addressed to the lease firm.  The first NTK.

But it seems you are telling us it is the NTH (second document) addressed to your company.  And there are no enclosures. Good.  POFA breach.

So there's not really a need for any thread, because your company simply uses the 'ABC company' lease car appeal by Edna Basher, lower down in the lease/company vehicle section of the Newbies thread.  That's why it's there.

NattyKnitter

Thanks.  The first letter was to the lease company which has details about it being the registered keeper (so I assume this is the NTK) then we as a company have received a letter from UKPC but it refers to the company as the hirer (so again I assume that this is the NTH) but no other documents have been attached to it.  So I am assuming from what you have written that the time period is irrelevant as UKPC should have sent all the documents together - is that correct? 

Coupon-mad

Correct - but you'll know that from reading the Edna_Basher appeal; the main thrust of which is...?!

it doesn't need more chewing over.  It is already right there in the appeal.

NattyKnitter

Since last using this site  - I sent off the company letter to UKPC disputing the PCN as they had not followed POFA, then we received a further letter asking for the drivers details (which we ignored) - now we have recieved a POPLA code.  Can we just appeal using the lack of documents sent with the NTH or do we need to pad out the appeal?  Most letters/appeals I have read on this site seem to have a huge number of details/ grounds for appeal!  Is it better to have more grounds - do I need to go to the site and take photos etc or shall we just stick to the breach of POFA? 

I would be grateful for any help. Thanks in advance

Umkomaas

Can we just appeal using the lack of documents sent with the NTH or do we need to pad out the appeal? 

That on its own should win it .... providing you have a POPLA assessor who is not picking the sleep from their eyes when reading the appeal. You could go with a single-point appeal, depends on your attitude to risk (not that there's any 'risk' as POPLA decisions are not binding on the motorist). I'd love to see you do the single-point appeal - it might not even get as far as a POPLA assessment as UKPC might well withdraw the charge on seeing you had them over a barrel, saving them their £30 POPLA charge. 

Alternatively, use all the relevant other points from the NEWBIES FAQ Announcement, third post.  I don't think in this case you need to bother with photos. Let us know how it goes. 

NattyKnitter

Thanks for the reply Umkomaas. 

I'm rather nervous (never had to do anything like this before) about going down the single POFA  route so went a bit over the top with this.

I wonder if anyone could give me a few pointers to let me know if this needs tweeking before it is sent in over the weekend.

I don't know whether to include photos or not - some show terrible signs were other have larger signs stating that there is a certain time limit but all have very small writing about the charge if overstaying.  Any comments welcome! Thanks,

An appeal in response to PCN 123456

UK Parking Control issued a Notice to Hirer (NTH) on 23/03/2022 to XX Ltd for the alleged incident on 01/03/23. 

 

U K Parking Control, as the Operator, failed to deliver a NTH that was fully compliant with the Protection of Freedoms Act 2012 (POFA), Schedule 4. 

In order to rely upon the POFA to claim unpaid parking charges from a vehicle’s hirer, the Operator/Creditor must deliver a NTH in full compliance with POFA’s strict requirements – in this instance it did not comply. 

The relevant sections concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of PFOA, with specific conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge set out in Paragraph 14.

Paragraph 14 (2) states that

The conditions are that—

(a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(13(2)(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement).

The Operator did not provide XX Ltd with copies of any of these documents, (a), (b) or (c) or the Notice to Keeper. The NTH states that the registered keeper (Lex AutoLease) has supplied the Operator with the necessary documents – as set out in 13 (2) (a), (b), (c) however no documents were sent with the NTH to XX Ltd on 23 March 23.

 

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator's Notice to Hirer does not mention the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide a copy of the Notice to Keeper as required under Paragraph 14 (2) (a).  

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, we draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA.

We draw POPLA's particular attention to the section entitled 'Keeper Liability'  in which Mr. Greenslade explains that:

'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.......

.......... However keeper information is obtained, 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'.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against XX Ltd is invalid.

No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the British Parking Association Code of Practice (BPA CoP)

As this operator does not have proprietary interest in the land then we 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' 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 key 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 we suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would a witness statement define vital information such as charging days/times, any exemption clauses, grace periods and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the 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 (Jan2020) defines the mandatory requirements and we 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

 

The signs in this car park are not legible from all parking spaces and the sum of the parking charge itself is barely visible on the signs in the parking areas.

We 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, We, as a company believe this to be a reasonable standard to use when making our 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, we are of the view that the signage at the site - given the minuscule font size of the £60 and £100, which is extremely small 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. Furthermore, there are a plethora of other signs which bombard the eyesight of the motorist on entering this site – entrance notice, speed limit, speed bump sign, barrier closure sign and directions to parking areas.

There was no contract nor agreement on the 'parking charge' at all.
In the Parking Eye v Beavis case, which turned on specific facts relating to the signs at that site, the signs were unusually clear. 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 and this lead to a judgement that there was “an agreement on the charge”.
Here, the signs in the actual car park are small, high up on poles and the detail difficult to read even when stood underneath them – the parking charge sum is extremely small and does not stand out.
Other signs, positioned between shops along busy walkways are crowded with information in which charges are again small and indistinct.

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 in the car park area (and does not feature at all on the entrance sign). None of the signs observed have the charges in large lettering - either in the car park, shopping walkways or indeed at the entrance where there is no mention of charges at all, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

We, as a company, put the Operator to strict proof as to the size of the lettering on their signs particularly for the most onerous term, the parking charge itself.  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 taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on low signs and in far larger lettering, with fewer words. 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.

We 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 this argument, not the operator's case:

(Apparently I'm not allowed to post links but there is the one is here)

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, we 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, we require this operator to show how the entrance sign appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. We 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. 

As a final point, the Operator’s correspondence and appeals process has been problematic.

Firstly, the first letter (NTH) received by XX Ltd (dated xx/xx/23) had the incorrect spelling of our company name – XY Ltd twice.

Secondly, on trying to appeal via the UKPC’s website on  xx April 23, we were unable to do so – the Parking Charge Notice was apparently “under appeal investigation”.  However, our company (and the driver of the vehicle on the 1 March 23) had not had any contact with the Operator apart from receiving the NTH on xx – how then could the PCN be under investigation?

  

Subsequently, we had to post our dispute letter to the Operator which we did the same day (xx April/23) pointing out that the NTH was not compliant with the PFOA 2012 – not containing any of the required documents, but also bringing to their attention the incorrect spelling of our company name.  On two future letters from the UKPC the same spelling error was made twice in each letter.  It would seem that the Operator is using a template format for correspondence and “cutting and pasting” incorrect details too. 

XX Ltd respectfully request that, after considering all points, this parking charge notice appeal be allowed and await your decision. 

Coupon-mad

Looks fine except the typo x 2 'PFOA'.

You should embed TIMED & DATED photos (or screenshots of photos to show get the date & time taken) into the signage point to illustrate the appeal.  Do not provide ANY pics where the words are legible. Nothing that helps them.

1505grandad

"UK Parking Control issued a Notice to Hirer (NTH) on 23/03/2022 to XX Ltd for the alleged incident on 01/03/23."

Also date typo