UKPC PCN | Court Claim

JN33

A couple of months ago my wife received a PCN because she visited the gym car park after a certain time, after a given time you must register your car on the portal within the gym and some how forgot. 

We received the PCN and I submitted the reply listed in the newbies thread, I did this 2-3 times as they kept sending the same PCN back. I know many advise not to bother adding to it but within the opening line I stated she is a gym user - though not declaring her as a registered keeper.

I have just gotten back from holiday and received another letter. 

"Dear X, 
Thank you for your recent communication concerning parking charge reference XXXXXXX.

We have carefully considered your appeal based on the information provided and the evidence supporting the parking charge. In this instance having completed our assessment, we consider the parking charge to have been issued correctly issued, as your vehicle was parked onsite out of the permitted hours. 

Schedule 4 of the Protection of Freedoms Act 2012 discusses the recovery of unpaid parking charges. It allows parking operators to hold the registered keeper liable to pay unpaid parking charges if the operator has not been provided the name and serviceable address of the driver. "

The letter continues to state other information such as
1. pay the fine at a reduce rate of £60
2. make a POPLA appeal
3. if we choose to do nothing follow the consequences.... 


The gym is useless and won't do anything in regards to the parking ticket. 

Coupon-mad

I'm sure UKPC don't call it a fine!

See the NEWBIES FAQS thread. 

JN33

Coupon-mad said:

I'm sure UKPC don't call it a fine!

See the NEWBIES FAQS thread. 

Correct, it's referred to as a 'parking charge' sorry. 

Am I ok to use this template for the POPLA appeal, I added #1 - since we are paying members of the gym and this is the sole purpose of the visit. 

-- 

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC on the following points:

1. I, the registered keeper as well as the drivers applicable to drive said vehicle are ALL members of JD Gyms, located on Phoenix Retail Park, WV1 1NT

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

3. 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. All drivers able to use vehicle XXXXXXX are all PAYING members of JD Gym, which is located on the Phoenix Retail Park, WV1 1NT. The registration input must not have registered on the tablet within JD Gyms properly to ensure that parking was valid. I have proof of paying memberships. 

2. No evidence of 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 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 (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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

3. 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

The signs also do not state permitted hours and that you are REQUIRED to fill out anything within the 24-hour access JD gym in order to validate parking. 

I 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, I believe this to be a reasonable standard to use when making my 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, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible 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.

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:

http://imgur.com/a/AkMCN

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking+sign_001.jpg

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 (and does not feature at all on some of the signs). 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.

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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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.''

...and the same chart is reproduced here:

https://sgsgraphic.com/blog/letter-visibility-chart/#:~:text=The distance for the best,up to 200 feet away.

''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 an inch, 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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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 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.

KeithP

Check all the links work as you want them to.

Fruitcake

Para 1 practically identifies the driver, although it doesn't matter if the NTK was PoFA compliant.

Your numbering is off. There is no point 3 in your index.

UKPC signs are always inadequate because the fail to highlight the amount of the charge for breaching Ts and Cs. You must include a copy of (the worst) signage at the site in your appeal, ideally alongside a copy of the Beavis sign.
If UKPC produce a picture of a sign, it will probably be a stock image held on a computer, or a blurred image from the site.

JN33

Fruitcake said:

Para 1 practically identifies the driver, although it doesn't matter if the NTK was PoFA compliant.

Your numbering is off. There is no point 3 in your index.

Thanks for highlighting the typo, how do I know if the NTK was PoFA compliant or not?

Gr1pr

JN33 said:

Fruitcake said:

Para 1 practically identifies the driver, although it doesn't matter if the NTK was PoFA compliant.

Your numbering is off. There is no point 3 in your index.

Thanks for highlighting the typo, how do I know if the NTK was PoFA compliant or not?

The newbies FAQ sticky thread explains it, with a link to examples 

But its irrelevant if the driver was identified in the first appeal 

Not revealing the driver is especially important when an NTK PCN letter fails to comply with POFA 

Once a driver is known or admitted, POFA goes straight into the bin, often binning the main winning point 

Post 1 states that the first appeal by the RK was a gym user, but didn't reveal that she was the Registered Keeper. !

They already know that she is the Registered Keeper because they obtained RK details from the DVLA database before writing to ger

Fruitcake

JN33 said:

Fruitcake said:

Para 1 practically identifies the driver, although it doesn't matter if the NTK was PoFA compliant.

Your numbering is off. There is no point 3 in your index.

Thanks for highlighting the typo, how do I know if the NTK was PoFA compliant or not?

Compare the NTK with the PoFA 2012, which is available online.

If you are unsure, post a redacted copy of the NTK here, both sides, but leave all dates showing.

JN33

Gr1pr said:

JN33 said:

Fruitcake said:

Para 1 practically identifies the driver, although it doesn't matter if the NTK was PoFA compliant.

Your numbering is off. There is no point 3 in your index.

Thanks for highlighting the typo, how do I know if the NTK was PoFA compliant or not?

The newbies FAQ sticky thread explains it, with a link to examples 

But its irrelevant if the driver was identified in the first appeal 

Not revealing the driver is especially important when an NTK PCN letter fails to comply with POFA 

Once a driver is known or admitted, POFA goes straight into the bin, often binning the main winning point 

Post 1 states that the first appeal by the RK was a gym user, but didn't reveal that she was the Registered Keeper. !

They already know that she is the Registered Keeper because they obtained RK details from the DVLA database before writing to ger

I insisted that the RK was not identified as the driver and also everyone with access to the vehicle holds a gym membership - which is correct, both myself and my wife. 

She simply did not validate parking on a tablet - the signage is terrible. I will get pictures to send over in my POPLA appeal. 

JN33

Fruitcake said:

JN33 said:

Fruitcake said:

Para 1 practically identifies the driver, although it doesn't matter if the NTK was PoFA compliant.

Your numbering is off. There is no point 3 in your index.

Thanks for highlighting the typo, how do I know if the NTK was PoFA compliant or not?

Compare the NTK with the PoFA 2012, which is available online.

If you are unsure, post a redacted copy of the NTK here, both sides, but leave all dates showing.

The original PCN is identical to this: 
https://us.v-cdn.net/cdn-cgi/image/fit=scale-down,width=1600/https://us-noi.v-cdn.net/6031891/uploads/editor/7v/bhd1jlsjpfax.jpeg

Coupon-mad

Ok - so compare the NTK to the 'NTK pictures' thread. It's linked in the Newbies thread for good reason and UKPC ones are shown.

Also why is she accepting that she forgot?

Why not instead put the burden on UKPC? Add a point and put them to strict proof that there was a keypad in the reception that day and that it was working. That's what I'd do.