C.U.P Enforcement - 'Parking' in a 'No parking area' - POPLA Appeal - Unsuccessful

Vikom04

Hello Parking Legends,

Following on from the above, obviously the appeal was rejected.

Next stage is POPLA! See below for C.U.P's response;













Just wondering if anyone can spot any particular specifics within their response that I can use for the POPLA appeal? 

Also, can previous cases which were successful at POPLA stage (i.e. trespass is not parking) be cited as a persuasive point within my own appeal?

All the best

Vikom

Coupon-mad

Yes just copy the one in the POPLA DECISIONS thread recently about that sign.

Coupon-mad

Coupon-mad said:

"No Parking At All Times".

Read the most recent winning POPLA decision

I did tell you this 3 weeks ago.

Vikom04

@Coupon-mad - Thank you for your help, yes I did read the thread thoroughly, I just wanted to make sure it was ok to cite POPLA decisions as I thought they were private, unless publicly shared.

Hi all,

Please see below first draft of POPLA appeal. I would be grateful for any feedback and to check it makes sense and is actually correct!

Dear Sir/Madam,

As the registered keeper, this is my appeal about a Parking Charge Notice (PCN) issued by C.U.P Enforcement for alleged contravention of Vehicle Registration xxxxx parking within a ‘no parking area’ area at 105 - 115 The Parade Watford (Gaumont Approach) WD17 1LU, on xxxxxx.

The appeal to C.U.P Enforcement was sent on 02nd December 2024, and was subsequently rejected by them in a letter dated 19th December 2024.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

POPLA Verification Code: xxxxx

C.U.P enforcement PCN Ref: xxxx

I would like to contest the PCN on the following grounds.

 

1.)           The PCN has not been issued correctly with regards to a ‘no parking area’.

The evidence put forward by C.U.P Enforcement shows the area in question is a small, concrete lay-by off a public highway, approximately 14 metres in length and circa 2 metres wide. 

Within the PCN, they refer to this area as a ‘car park’, and as such they state it comes with contractual terms and conditions on offer to any driver who enters this area, stipulating that this constitutes an agreement between themselves and the driver. However, within the same PCN, they also declare this area a ‘no parking area’. This means, therefore, that there are no parking facilities available for any motorist to use, and as such no contract or agreement with regards to the use of such parking facilities, can be entered into. If it is a ‘no parking area’, then there is no parking contract on offer meaning it fails the contractual basic test (No Offer, No Consideration resulting in No Contract) as the driver cannot contract to do that which is forbidden. 

As a result the Operator has incorrectly issued a PCN, for a parking violation whereby the driver has broken the contract on offer, when no parking could have taken place.

This is supported by a recent successful POPLA appeal (assessor Richard Beaden), and exert of the summary of the case is included below;

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. I am allowing this appeal I will explain my reasons below. The appellant challenges that a valid parking contract was formed. The signs on site advise that this location is a no parking area and there is no option for a motorist to park in this location. The operator can issue a parking charge notice for trespass but this is not what has happened. The operator has referred to the site as a car park and has advised the PCN advises that the driver was parked in breach of the terms and conditions but there were no parking facilities which the driver could have used. The PCN makes no mention of trespass and the driver would not have to form a contact to have been trespassing. The operator has issued the PCN as though the driver had breached the terms and conditions but the operator should have treated this as a case of trespass. As such I must conclude that the PCN has not been correctly issued and on this basis I am allowing the appeal.

 

 

2.) Not PoFA (Protection of Freedoms Act) compliant as personal data has been accessed without just cause.

The PCN put forward from C.U.P enforcement shows two pictures of a vehicle, with hazard warning lights on, 1 minute and 36 seconds apart. There is no evidence showing when the vehicle entered the location and when it left. With hazard warning lights on, the driver has indicated they have temporarily brought the vehicle to a halt and it should be treated as a ‘live’ hazard on the road as it may move again. When this typical pattern of motorist behaviour is viewed in conjunction with the time period of 1 minute 36 seconds, it is clear there was no intention of any parking, and ultimately no parking event took place.  It is far more likely that the driver was picking up or dropping off passengers. Loading/unloading of goods or passengers has been clearly defined in landmark court case appeals (i.e Jopson vs Homeguard, His Honour Judge Harris QC, Ref 9GF0A9E) as not constituting a parking event.

Within the appeal reply from C.U.P Enforcement, the Operator states “The time and date stamped photographic evidence submitted…captured the vehicle parked on a double yellow lined area”. This would imply that C.U.P Enforcement has the authority to issue a PCN in relation to public highway markings. For avoidance of doubt, the double yellow lines to the right of the concrete lay-by, (referred to as the “car park” by the Operator), form part of the public highway.

Additionally, as seen in the below photos (taken 29th November 2024) you can see there are no yellow ‘blips’ in this area which would designate that setting down or picking up passengers is prohibited. These blips are, however, visible on the other side of the road. The reference to “double yellow lined area” by the Operator is deliberately misleading, inferring they have more authority than they actually do, and also relying on public highway markings in an attempt to give more gravitas to an alleged ‘parking’ event, even when no parking event took place.

Based on the above, this un-regulated parking company have accessed my personal data without just cause, as they are issuing me a PCN for ‘parking’, when it is clear that the vehicle was not parked and was being loaded /unloaded. Additionally, with reference to Point 1 above, I believe this constitutes a further breach of the PoFA, as the Operator has not fulfilled their legal obligation to conduct due diligence when accessing personal data, as Point 1 clearly demonstrates that no parking was able to take place, therefore there was no grounds to access personal data for the purpose of issuing a Parking Charge notice.

 

3.) No evidence of Landowner Authority therefore C.U.P enforcement does not have the capacity to offer contracts or pursue an individual in their own name

In my initial appeal, I requested evidence that the Operator (C.U.P Enforcement) has a contract with the landowner to pursue any matters. The Operator has not provided any evidence to date.

Therefore, it is suggested that C.U.P enforcement does not have proprietary interest in the land and merely acting as agents for the owner/occupier. I ask, once again, that C.U.P Enforcement produce strict proof that they have the necessary authorisation at this location in the form of an unredacted, signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts.

Documentary evidence must pre-date the parking event in question and be in the form of a genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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).

Whether relying on legacy BPA CoP (v9) or the Single Code of Practice (v1), both clearly define the mandatory requirements between Landowner and parking operator that must be met before a parking charge can be issued. With C.U.P Enforcement being a BPA Approved Operator, they are bound by these terms.

As the PCN was issued on the 30th October 2024, the Single Code of Practice has been referred to, but I am aware than certain sites may still be bound by the wording in Section 7 (7.1 to 7.3 inclusive) in the BPA CoP v9. Either way, the Operator has failed to provide the relevant evidence to show compliance with the rules applicable to them, mainly;

Section 14 of the Single Code of Practice

Relationship with landowner

14.1
Where controlled land is being managed on behalf of a landowner(s), before

a parking charge can be issued written confirmation must be obtained by the

parking operator from the landowner(s) covering:

a) the identity of the landowner(s)

b) a boundary map of the land to be managed;

c) such byelaws as may apply to the land relating to the management of parking;

d) the permission granted to the parking operator by the landowner(s) and the

duration of that permission

e) the parking terms and conditions that are to be applied by the parking operator,

including as appropriate the duration of free parking permitted, parking tariffs, and

specific permissions and exemptions, e.g. for staff, residents or those stopping for

short periods such as taxi and minicab drivers, delivery drivers and couriers;

f) the means by which parking charges will be issued;

g) responsibility for obtaining relevant consents e.g. planning or advertising

consents relating to signs

 h) the obligations under which the parking operator is

working, in compliance with this Code and as a member of an ATA;

i) notification of the documentation that the parking operator may be required to

supply on request to authorised bodies detailing the relationship with the

landowner; and

j) the parking operator’s approach to the handling of appeals against parking

charges

 

In summary, these points demonstrate the claim by C.U.P Enforcement is invalid and should the claim continue, further action and evidence requested in this appeal is required from C.U.P Enforcement.

 

4.) The evidence of the “Parking Conditions” signage is generic and not specific to the site

Not withstanding all of the above, the evidence put forward by the Operator to show the supposed contract on offer is a generic sign and not specific to the site in question (page 4 of the appeal reply letter). This is completely inadequate proof with relation to any alleged contravention at this site. Specifically, the photograph provided by the Operator of the sign shows that the ‘Site Number’ box is completely blank.  Despite the fact that no parking contract could even be formed in the first place, the Operator has still not demonstrated there was sufficient, compliant signage at this location, because this sign could belong to any number of their sites.

 

Thank you for considering my appeal and I hope to hear from you in due course.

Yours Faithfully,

Mr Vikom

 

Coupon-mad

I wouldn't call your vehicle a 'live hazard'.

I wouldn't admit to picking up or setting down passengers unless they have images of that.  Just say that no amenity was gained from pulling over at the kerbside at this site and after one of the occupants had read the sign as best they could, the driver left immediately and parked (WHERE? Can you prove where the car parked instead?).

I would add a point that zero 'consideration period' has been allowed and there were no entrance signs to warn the driver that they were entering a BPA managed area, nor to warn that their vehicle was being filmed (and for what purpose). The latter being illegal under UK GDPR 2018 and the Surveillance Camera Code of Practice that the BPA requires camera-based operators to comply with at all times.

I would remove this phrase which POPLA won't agree with so don't steer the assessor that way:

"as personal data has been accessed without just cause."

Vikom04

Thanks @Coupon-mad , I'll get v2 edited today and posted.

Re: your first paragraph, the car didn't park anywhere else, it left the site and drove away so I can't prove it parked elsewhere.

fisherjim

That rejection letter is rubbish and contradictory, they state in black an white that the driver was trespassing you cannot issue an invoice for trespassing and only the landowner has the ability to take that further in their own right not a jumped up parking company.

They also talk about being parked in a double yellow line area, those DYL's "belong" to the council not the land owner and certainly not a dimwit parking company, in fact if they want to site those in their accusations the lack of 90degree chevrons would allow a drop off period.

It goes on to say there was an "offer", but there was no the signage says "No Parking at Any Time" that is not an offer.

The talk of a "warden" is also a lie unless he was hanging on a pole up the side of the building, this was a CCTV camera issued NTK.

They talk of parking in front of fire exits, the vehicle was not parked in front of a fire exit but what appears to be a loading shutter.

The signage erected by the parking operator does not mention fire exits, but uses one of their generic signs.

The site signage states "Fire Exit Keep Clear" on the fire doors which were kept clear, and if the intention is to keep the area clear for emergencies, taking a photo and sending an invoice in the post up to 14 days after the event is.....well after the event and is of no use what so ever other than making money!

Umkomaas

Additionally, as seen in the below photos (taken 29th November 2024) you can see there are no yellow ‘blips’ in this area which would designate that setting down or picking up passengers is prohibited.

For the avoidance of doubt or very common misunderstanding, rather than 'prohibited', setting down or picking up passengers on blipped kerbing is transparently permissible in the Highway Code. Not that POPLA Assessors will understand!  They often think double yellows mean 'no stopping'!

Coupon-mad

Use the above graphic in your appeal - if they have photos of passengers getting out - and just say that no amenity was gained from pulling over at the kerbside at this site and after reading the poorly placed single sign as best they could, the driver left immediately despite knowing that it is always legal to pick up or set down passengers on yellow lines. See official graphic: 

magjp90

I've been done in the exact same spot (opposite Sainsbury's in Watford?) for a very similar reason! I've appealed to CUP and they've rejected it. Unsure whether to take it to POPLA or just completely ignore it.