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

Coupon-mad

Either is good.  But a retailer complaint is most likely to succeed

Vikom04

@Coupon-mad - No photos of people getting in or out the vehicle.

Hi Legends, thanks for your feedback. v2 of the edited paragraphs below (1 and 3 remain the same). Grateful for any feedback. I'm aiming to get it submitted to POPLA before the end of the week

2.) Not PoFA (Protection of Freedoms Act) compliant as personal data has been accessed unnecessarily 

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. 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 no amenity has been gained from the driver pulling over at the kerbside. Ultimately, this means no parking event took place. Additionally, the operator has failed to take into account any ‘consideration period’. With the inadequate signage fixed to the wall, an no obvious signposts around the area in question warning the driver they are entering a BPA managed area, any driver would need time to read these small signs, as it is not obvious this area is not part of the public highway.  

Furthermore, as this was a CCTV issued NTK, there is no signage to warn the driver that their vehicle was being filmed, and for what purpose. The Single Code of Practice (section 3.1 - Signs) makes it very clear of operator's obligations to inform motorists that personal data is being obtained and/or retained.  Under UK GDPR 2018 regulations, this is illegal and a breach of the Surveillance Camera Code of Practice, that the BPA requires camera-based operators to comply with at all times. 

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. 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 unnecessarily, as they are issuing me a PCN for ‘parking’, when it is clear that the vehicle was not parked and additionally there has been no allowance of a consideration period, which is stipulated in the Code of Practice.  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. 

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.  Following on from this, the Operator has mentioned, in the reply to my first appeal, that the vehicle was parked in front of fire exits. The signage erected by the parking operator does not mention fire exits at all, but instead uses one of their generic signs, as demonstrated in their own evidence. The fire exit has not been obstructed by the vehicle, because the raised concrete walkway in front of the fire exit leads straight to the pavement, away from the road, as seen in the photographic evidence. 


Many thanks for your legendary help

Vikom

Vikom04

Actually, on re-reading the generic parking sign, it quite clearly statesthat they are recording CCTV images, and ANPR is in use. It’s in the ‘privacy policy’ section of the sign and next to the two warning triangles of cameras.

perhaps the paragraph referring to this is moot and doesn’t add anything for a POPLA appeal?

Coupon-mad

Leave it in anyway. CUP may well fold.

Vikom04

Eh up legends,

Operator evidence/response submitted to POPLA today; now my chance for any comments within 7 days.

The evidence pack consists of the following reply, and the 'agreement' with the landowner, along with the same photos of the signs (with no site number) and the same photos of the vehicle captured on CCTV. They make lots of references to double-yellow lines, and parking on private land, accepting the conditions and contract on offer etc. Also a screenshot that the vehicle was not part of their exemption system.

The appeal that was actually submitted to CUP differs slightly from the one that I have uploaded as evidence; annoying but obviously I used the wrong version that was saved to my PC! Does this particularly matter? The screenshot of it is below. My one is within this thread.

I'd appreciate any guidance on potential comments to make; other than re-iterating the same points in the appeal (i.e. double - yellows being part of the public highway, unloading is not parking as defined by Jopson v Homeguard (they state utility was gained), and agreeing to contractual conditions of parking in a no parking area is not possible because it's a forbidding contract) is there anything else that could be said?


Case Summary

• The vehicle was observed parked on site within a no-parking area. The vehicle was parked on the paved area, on a double yellow line - universally understood to be a no parking area, in view of signage, in front of fire exits, on 30/10/2024. Photographic evidence was captured by the warden that was monitoring the cameras.
  
  
• As the motorist had accepted the terms by parking their vehicle at the location, a PoFA Parking Charge Notice (PCN) was issued to the registered keeper of the vehicle by post.
  
  
• An appeal was received from the keeper on 02/12/2024, wherein the appellant stated that the driver was, ’ … most likely loading/unloading, or picking up passengers …’. No evidence of any authority to utilise the location was submitted
  
  
• As a PoFA had been issued and the keeper confirmed utility; the vehicle was parked on private land, in breach of the parking conditions; no-parking signage was displayed in view of the vehicle; photographic evidence taken by the warden monitoring the cameras confirmed utility of the location was gained; the photos captured the vehicle parked within a no-parking area on a double yellow lined area, in front of fire exits; the vehicle was unauthorised as the VRM was not found on the list of allowed vehicles; no supporting evidence of permission to park at the location was provided, the appeal was rejected.
  
  
• Within the POPLA appeal, the keeper submitted several images which captured signage displayed at the site,
  
  There were multiple terms and conditions signs at the location. Signage can be seen within the site map in proximity of the double yellow lined area in the sample images of signage. The terms and conditions signs state, ‘ … NO PARKING AT ALL TIMES…’. A copy of the signage itself is included in this evidence pack.
  
  Parking standards are a matter of safety, security and etiquette. This site has clear signboards that are in full operation. The clear signage was captured to allow motorists to observe the signage clearly stating the Terms and Conditions for parking at this site. The rules and regulations of parking on the site clearly state the requirements.
  
  The motorist did not contact CUP Enforcement, despite the fact that information was displayed, to enquire/gain authorisation to park in a no parking area, therefore was negligent, and thereby incurred a charge.
  
  The charge was £100, reduced and held at £60 for 14 days to allow for early payment. The charge was then held at £60 after the internal appeal response. No payment has been received. The charge now stands at £100.
  
  CUP Enforcement has a written and signed agreement with the landowner giving it rightful authority to carry out enforcement on this land. All CUP enforcement on the site is in full compliance with BPA parking regulations.
  
  When parking on private land, the contract formed is between the motorist and the parking operator. It is the responsibility of the motorist to ensure they have sought out, read and complied with the parking operator’s terms and conditions, which are stated on the signage. The motorist failed to fulfil their obligations in this instance.
  
  As the vehicle was parked in a no-parking area, on private land in breach of the terms in place at the site, the vehicle was not exempt from parking conditions, there was signage at the location; the registered keeper was notified via a PoFA Notice, the keeper confirmed utility was gained and failed to provide any evidence of authority to park at the site, neither was any document of authorisation or evidence to support cancellation of the charge submitted, we stand by the decision to issue the PCN and we request refusal of the appeal

Interestingly, this blurb of text follows the photos of the signs (with no site number), and there is zero reference in the signs to 'double-yellow lines' or 'causing an obstruction' - This just feels like some made up text that was hashed together to bulk out an evidence pack




"Evidence" of site agreement and site map etc. The Site agreement - Does this need to be a wet signature, or is the below actually acceptable - seems like a knock up job on MS Paint!






Cheers guys, as always, hugely, hugely appreciated. 

Vikom04

Coupon-mad

I'd just briefly (bullet points) point out the errors and omissions, such as

"this blurb of text follows the photos of the signs (with no site number), and there is zero reference in the signs to 'double-yellow lines' or 'causing an obstruction' - This just feels like some made up text that was hashed together to bulk out an evidence pack."

and

""Evidence" of site agreement and site map etc. The Site agreement - Does this need to be a wet signature, or is the below actually acceptable - seems like a knock up job on MS Paint!"

And if the NTK was non-POFA then remind the Assessor of that point (I can't recall if it was or wasn't a keeper liability one).

kryten3000

I have just attended court with another victim of this "trap" location who stopped for 30s with only the left wheels over the DYL. Sadly they outed themselves as the driver and didn't do POPLA so were dragged to a hearing by CUPS and DCB Legal.

Case Dismissed. The judge's open remark directed at the Claimant's rep was "what an extraordinary case to bring"

Coupon-mad

Vikom04 said:

Good evening you legends,

I hope you're all well.

I've come with a query regarding a NTK which was received recently. I'll be sending the online appeal tonight, or first thing in the morning, so it falls within the 28 day period (beginning day after the notice was issued - lots of life admin has kept me from doing this sooner but it's now at the top of the pile.) 

Background context - The Driver (TD) pulled over into the bay, marked with double yellows, to pick me up from town. TD had the hazards on and did not leave the vehicle at any point. Total time there was approx. 7 minutes at a guess. I'll also be doing a SAR to see what time stamps they have as the ones on the NTK are illegible. TD's 3 year old son was in the back of the car, having a meltdown so was dealing with that too.

The Keeper (TK) (who may or may not have been TD) is also 6 months pregnant and considered at high risk due to pre-eclampsia as they suffered a miscarriage earlier this year. (N.B - I'm only mentioning this as I'm wondering if this will give any more credence to the appeal as the registered keeper due to the stress it is, and will, cause whilst dealing with it, impacting her health and putting the pregnancy at risk. TK also works full-time in a stressful job, and has two young children.

My understanding was you could briefly pull over onto double yellows for picking up and setting down. However, their signage specifically prohibits this. Of course, I only saw this when I subsequently went back to get some photos, and I imagine TD at the time didn't see the signage either.

No correspondence has been made with CUP Enforcement as of yet, so TD not identified.


I've seen the template appeal on the newbies thread, and I've also searched the forum for previous CUP cases BUT I've found that the NTK wording has been updated since this post ( https://forums.moneysavingexpert.com/discussion/comment/80413396/#Comment_80413396 )
 and on the NTK letter, it specifically refers to PoFA Paragraph 9.


I'm wondering f there was anything else more specific I could include in the appeal, or if any of you parking legends have any thoughts on this?

I've included a copy of the NTK and also the area of the parking and a close up of the sign.

Thank you so much for your help and time.

Best Regards,

Vikom

Shocking entrapment.

kryten3000 said:

I have just attended court with another victim of this "trap" location who stopped for 30s with only the left wheels over the DYL. Sadly they outed themselves as the driver and didn't do POPLA so were dragged to a hearing by CUPS and DCB Legal.

Case Dismissed. The judge's open remark directed at the Claimant's rep was "what an extraordinary case to bring" 

Nicely done. 

Vikom04

Hi all, 
 
POPLA unsuccessful - I'll updated the POPLA thread. Comments below. 
 
Looking at the forums, this site is now becoming a bit of a recurring theme. C.U.P will be relentless with this I imagine, and probably won't drop before court, so I will slowly start getting together a defense and WS draft.  
 
It's very disappointing and frustrating to see the assessor referring to signs at the 'entrance'... there is nothing delineating the private land from the DYL, which is deliberate; it's clearly a case of entrapment. It's like the assessor is looking at a different picture, and as CM points out; it's virtually a waste of time as it's so biased. 
 
 
@kryten3000 - I assume the court hearing relating to this site is a matter of public record - where can I find the relevant details as I would like to see more on this and would like to refer to it. 
Do you have any other advice, or anecdotal bits of how the DJ handled the case and anything from their side that might be persuasive? 

Decision: Unsuccessful

Assessor Name: Jamie Macrae

Assessor summary of operator case

The parking operator has issued a parking charge notice due to parking in a no parking area.

Assessor summary of your case

The appellant has provided an extensive document detailing their grounds of appeal, I have summarised these below. • The appellant has mentioned different POPLA appeal. • The PCN has not been issued correctly in regard to a no parking area. • Not The Protection of Freedoms Act (PoFA) 2012 compliant as personal data has been accessed unnecessarily. • No evidence of landowner authority. • The evidence of the parking conditions signage is generic and not specific to the site. After reviewing the parking operator’s evidence, the appellant reiterates their grounds of appeal, and expands on their grounds of appeal. The appellant has provided correspondence from the parking operator, and a copy of their initial appeal to the parking operator, and photos of the site as evidence to support their appeal. The above evidence will be considered in making my decision.

Assessor supporting rational for decision

POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal. The signage within the site informs motorists parking is not allowed at any time, and if these terms and conditions are not met a charge of £100 will be issued. The parking operator has provided time stamped images of the vehicle within the site on question, time from 15:10:33 to 15:12:03, the vehicle is positioned within the no parking area, I will refer to this below. I will now consider the appellant’s grounds of appeal to determine if they dispute the validity of the PCN. While the appellant has referenced a different POPLA appeal, however, this report will solely focus on the events surrounding POPLA verification code 1433544022, parking charge number 33751. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. Parking operators have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper, and it is the appellant’s liability for the PCN I will be considering as the keeper of the vehicle. This sector Code of Practice has been jointly created by the British Parking Association (BPA) and the International Parking Community (IPC). It is largely based on the Government’s Private Parking Code of Practice, which was published in February 2022, and subsequently withdrawn in June 2022. The new Code came into force on the 1 October 2024. It is stipulated in the Code that the parking operator needs to comply with all elements relating to signage by 31 December 2026. Therefore, for any aspects of this case relating to signage, I will be referring to version 9 of the BPA Code of Practice. This is applicable for parking events that occurred from 1 February 2024. Both partes have provided photos of the site in question. The British Parking Association (BPA) monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet. Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. I can see from the evidence pack there is an entrance sign. Entrance signs are an important part of establishing a contract and would put the driver on notice that terms and conditions applied. Further, specific terms and conditions signage are placed around this site, detailing the terms of use. These signs are in contrasting colours, and I believe they would have been clear and conspicuous to drivers who wish to use the site. The amount of the PCN is sufficiently clear within the parking operator’s signage. I am satisfied from the evidence provided that the signage at the site meets the requirements of the BPA Code of Practice and that the motorist had sufficient opportunity to familiarise themselves with the terms and conditions. It is the driver’s responsibility to seek out the terms and conditions on arrival, and, if you agree with them, stay or if you did not agree with them leave the site. Whether the appellant read the terms and conditions is irrelevant, the appellant was afforded a reasonable opportunity to read them. Section 22.1 of the BPA Code of Practice states: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” The signs within the car park feature a camera logo, and states: “PLEASE BE AWARE, ANPR/CCTV CAMERAS MAY BE USED ON THIS SITE”. I would therefore be satisfied the operator has made it clear that camera technology is in place to manage the site in question. The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators need to comply with. Section 5.1 of the Single Code of Practice states that parking operators must allow a consideration period of appropriate duration, subject to the requirements set out in Annex B to allow a driver time to decide whether or not to park. In this case as parking is allowed within site, the allowed consideration period is whilst driving, as the entrance sign to the site informs motorists that no parking is allowed. As the motorist stopped within the no parking area, no consideration period is afforded. The appellant appears to be disputing the vehicle parked within the site on the day, however, intentionally remaining stationary doesn't necessarily entail the driver exiting the vehicle. Whether someone is considered to have 'parked' rather than merely 'stopped' or 'waited' is determined on a case-by-case basis. However, in the context of parking disputes, the terms 'parking' and 'waiting' are largely interchangeable. This means that a driver who 'waits' at a location for their own reasons is also considered to have 'parked' at that location. I acknowledge the appellant's dissatisfaction with the parking operator's handling of their initial appeal, notably the parking operator mentioning double yellow lines. However, any customer service matters related to the operator's response fall outside of POPLA's jurisdiction. POPLA's responsibility is solely to assess whether the PCN was issued correctly according to the advertised terms and conditions. Any concerns regarding customer service should be addressed directly with the parking operator. While the double yellow lines part of the vehicle parked within does appear to be public land, the vast majority of the appellant’s vehicle was parked within the boundary of the site managed by the parking operator, which the parking operator has provided a map of the site confirming this, The site in question does not allow parking at any time, a motorist has the option to reject the terms offered, and not park, or remain parked within the site, there is a contractual offer. The motorist became bound by the terms and conditions of the site by parking, waiting, or staying at the location for during the times mentioned within the PCN. Section 14.1 of the Code states that where controlled land is being managed on behalf of a landowner, written confirmation must be obtained before a parking charge can be issued. In this case the parking operator have provided a signed agreement between themselves and the owner of the land, confirming the relevant authority is in place for the parking operator to manage the site. I appreciate the motorist did not intend to breach the terms and conditions, the signage at the site is clear that parking within a no parking area, regardless of the reason, would result in the issue of a PCN. By choosing to park within a no parking area the motorist has accepted the potential consequence of incurring a PCN. Despite the appellant's comments on the parking operator's evidence, I have not found any information that has a material impact on my assessment of the PCN. After considering the evidence from both parties, the motorist parked within a no parking area, and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal. Any questions relating to payment of the parking charge should be directed to the operator.

Gr1pr

In which case defend in court,  if a future claim is brought