UKPC charge advice - parked on bay line

Wel2k

Hi folks, I've been trawling the forum for advice on next steps but just wanted to clarify what the approach should be from here. Hoping one of you amazing, super informative people can help.

Charge is from 26/11/2024 for parking on a bay line at a retail park. 8 month pregnant partner and toddler in car and all the P&C bays were occupied (almost exclusively by people without children!). We parked next to one of these bays so as to give room for all passengers to get out safely.

Appealed with an amended template letter which was rejected on 6 January. Tweeted all of the retailers and emailed the McDonalds branch, they all said they couldn't help or didn't respond. I've read that the landlord L&G don't respond either so didn't bother with them.

I was about to submit a Popla appeal but have now read about UKPC and DCB Legal on this forum. Some advice I've seen is not to bother with Popla, just ignore the charge and they will eventually discontinue, is this correct? What is the best way forward at this stage?

And yes I do use the indicators and get very annoyed at those who don't bother!

Fruitcake

UKPC signs are inadequate with font so small they are usually incapable of forming a contract. Get photos of the site and signage if possible, or use recent images from Google Streetview.
Also have a look at the images of the car on UKPC's website to see if there are any (usually fuzzy) images of signs. Use the ones that support best your case.

You will see that the charge, usually £100, for a breach of Ts and Cs can't be read from a vehicle length.

Where did the alleged event occur? It may have cropped on the forum before. As for other people  parking in gimmick bays, they serve no legal requirement, unlike accessible bays.

I know some people say don't bother with PoPLA, but personally I would appeal because it costs the PPC time and money.

You should complain also to your MP. When doing so, ask when the new government mandatory code of practice is going to be introduced to support the 2019 parking bill. Emphasise that you are not talking about the recent joint IPC/BPA CoP that is not mandatory, and only supports the unregulated parking industry, not motorists. Also point out that there is no fair or independent appeals process because it is all funded by the parking companies themselves.

Please also sign the petition from the post below, and get all your friends and family to sign it. 

Parked in a disabled Bay, no ticket - Page 3 — MoneySavingExpert Forum

LDast

If POPLA doesn't work, then just go through the motions of being sued by UKPC through DCB Legal and defend the claim. They will discontinue in due course, no matter what your put in your defence.

No one pays UKPC if they follow the advice.

Wel2k

Thank you @Fruitcake and @LDast Here is the photo of the signage they provided. Pretty illegible. It occurred at Highbridge Retail Park in Waltham Cross. There are a couple of posts about this location, slightly different cases that didn't mention a conclusion and one that's almost 10 years old. There is a mention of the MP being rubbish, I'm sure it's changed since then so will give the new one a go. I have also signed the petition.

What are the chances of winning at PoPLA you think? Also what timelines can I expect? I've seen some dragging on for years? Ideally looking for a swift resolution as I know that the solicitor letters will stress my partner out.

Many thanks

Fruitcake

Use that image in your PoPLA appeal, because as I predicted, you can't read the charge for breaching Ts and Cs, therefore it is incapable of forming a contract, therefore there can be no consideration, therefore there can be no agreement. You can't agree to a written contract if you can't read it.
Also look up Lord Denning's red hand rule, and quote it in your appeal.

Emphasise that the image was taken by the UKPC parking operative at the time of the alleged event, so there can be no doubt it is inadequate and incapable of forming a contract with the motorist.

Use all the other appeal points available to you where applicable from the third post of the NEWBIES including, but not limited to

Inadequate signage
Not the landowner
No standing to issue charges in their own name
Joint IPC/BPA failures
Non-PoFA compliant NTK
Lack of advertising consent for signs (a criminal offence and breach of para 12 of the PoFA)
Anything else relevant


Timescales, a few months for PoPLA, where a well worded appeal should get the charge cancelled. Post your draft here before submitting it. 
Note that PoPLA codes last 32 days, and expire on day 33.

Otherwise UKPC has six years from the date of the alleged event to bring a claim.

Ignore powerless debt collectors.
Do not ignore a letter of/before claim or a court claim.

Hopefully it won't get that far if you do a good enough PoPLA appeal.

Coupon-mad

That's a great evidence photo to embed in your POPLA Appeal. In your case I'd give it a go and major on unlit faded signs.

Wel2k

Thanks very much for the advice folks, will get the appeal drafted up and post it here

Wel2k

First stab at this -  I've tailored point one but points two and three are basically carbon copies of the templates from the newbies thread...would be very grateful for any thoughts. Thanks!

As the registered keeper of the vehicle XXXXXXX, I am formally appealing against the Parking Charge Notice (PCN) issued by UKPC at Highbridge Retail Park on 26/11/2024. I dispute the PCN on the following grounds:

1.     Inadequate signage leading to failure to adhere to PoFA 2012 and breach of the BPA Code of Practice

2.     The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

3.     No evidence of landholder authority

 

1. Inadequate and Ambiguous Signage: The signage in the car park fails to meet the requirements set forth by the British Parking Association Code of Practice. As you can see from the below image, taken by the attendant at the time of the alleged breach. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of terms or of the sum of the parking charge itself. The sign has faded and is poorly lit.

[sign image here]

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''.

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 and font size, which is faded, poorly lit and illegible in all cases is not sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

Therefore no contract nor agreement on the 'parking charge' can be formed at all as the driver did not have a fair opportunity to read about any terms involving this disproportionate £100 charge. The signage at the parking location was inadequate and ambiguous, thereby failing to meet the legal requirements outlined in the Consumer Rights Act 2015 and the British Parking Association's Code of Practice.

I believe the signs were confusing and misleading, the small print is too small for anyone to see read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. It is against the BPA Code of Practice requiring signage to be ample and visible. The signs are also so small that terms would only be potentially legible if a driver got out of the car and get just under the panel to try to read them. In any photos supplied by UKPC in evidence I require them to state the height of each sign and the distance from the entrance/exit. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

18) Signs

18.1) A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

Furthermore, According to the Consumer Rights Act 2015, Schedule 2, Part 2, Paragraph 8, any contractual terms contained on signage must be transparent and legible, ensuring that consumers are made aware of the terms before entering into a contract. Furthermore, the British Parking Association's Code of Practice, Section 18.1, states that signs must be clear and legible, with terms that are transparent and easy to understand.

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 requirement to park within the bay or the parking charge which is hidden in small print. 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.

From the evidence provided by the attendant, 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.

A letter height of just half an inch, showing terms for supposed breach - parking outside of a bay and the most onerous term, the parking charge itself and being placed high on a 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 require 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 per the BPA Code of Practice and taking all information into account it 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 as stated 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.

2.     The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'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.

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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.'' 3.     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 - 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 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 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:

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 agreementGiven the points mentioned above may I request that PoPLA uphold my appeal and cancel the PCN.

Coupon-mad

I think there's no Appendix B of the BPA Code of Practice any more(?). You'll need to consult the joint BPA / IPC Code from October and find the wording about signs.

Wel2k

okay thanks @Coupon-mad I have updated the sign section:

1. Inadequate and Ambiguous Signage: The signage in the car park fails to meet the requirements set forth by the British Parking Association Code of Practice. As you can see from the below image, taken by the attendant at the time of the alleged breach. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of terms or of the sum of the parking charge itself. The sign has faded and is poorly lit.

[sign image here]

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''.

Having considered the signage in place at this particular site against the requirements of Section 3 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule and font size, which is faded, poorly lit and illegible in all cases is not sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

Therefore no contract nor agreement on the 'parking charge' can be formed at all as the driver did not have a fair opportunity to read about any terms involving this disproportionate £100 charge. The signage at the parking location was inadequate and ambiguous, thereby failing to meet the legal requirements outlined in the Consumer Rights Act 2015 and the British Parking Association's Code of Practice.

According to the Consumer Rights Act 2015, Schedule 2, Part 2, Paragraph 8, any contractual terms contained on signage must be transparent and legible, ensuring that consumers are made aware of the terms before entering into a contract. Furthermore, the British Parking Association's Code of Practice, Section 3, states that signs must be clear and legible, with terms that are transparent and easy to understand.

I believe the signs were confusing and misleading, the small print is too small for anyone to see read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Section 3. It is against the BPA Code of Practice requiring signage to be ample and visible. The signs are also so small that terms would only be potentially legible if a driver got out of the car and get just under the panel to try to read them. In any photos supplied by UKPC in evidence I require them to state the height of each sign and the distance from the entrance/exit. Unreadable signage breaches Section 3 of the BPA Code of Practice and Annex A which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

3.1.3. Signs within controlled land displaying the specific terms and conditions applying must: a) be placed within the controlled land, such that drivers have the chance to read them at the time of parking or leaving their vehicle; b) be sufficiently large to be visible from a distance and legible on approach; c) display information to identify the parking operator and their contact details: d) display the logo of the ATA which is responsible for maintaining the membership of the parking operator; e) be professionally made (not handwritten) using a sans serif (i.e. highly legible) font; use a sentence-case font size appropriate for the location of the sign so as to be clearly readable by a driver, having regard to the likely position of the driver in relation to the sign; f) g) use colours such that the contrast between the background and the text makes the wording on the sign clearly legible; h) display the parking tariff of sums payable, or indicate where the tariff is displayed if separate, or the duration of permitted free parking as appropriate; i) be clear, unambiguous and not use the words “penalty” or “fine”, unless there is a statutory requirement to do so; j) display the parking charge that the parking operator may apply for breaches of such terms and conditions as may apply in a large font;

3.1.4. Signs informing drivers that a parking charge may be applicable and of the level of that charge must do so in a font of comparable size and boldness to the main body text on the sign, and where included on signs also displaying the parking tariff a font no smaller than the tariff text/numbers.

3.1.6. Signs must be designed and installed so as to be conspicuous and legible in all lighting conditions during which the controlled land may legitimately be accessed, at a height that takes account of whether the signs are intended to be viewed from the vehicle (including by headlight in the hours of darkness) or having left the vehicle by a driver on foot or in a wheelchair. For example, in car park premises open to the public in the hours of darkness, lighting of the premises and/or the signs might be necessary depending on the location of the signs in order to meet the test of prominence in the Consumer Rights Act 2015. If there is more than one sign, all should be consistent with regards to typeface style, size and weight, colour and layout. Signs must be designed and maintained to withstand and remain legible, subject to normal exposure to conditions where they are located.

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 requirement to park within the bay or the parking charge which is hidden in small print. 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.

From the evidence provided by the attendant, 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.

A letter height of just half an inch, showing terms for supposed breach - parking outside of a bay and the most onerous term, the parking charge itself and being placed high on a 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 require 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 per the BPA Code of Practice and taking all information into account it 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 as stated 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.

Wel2k

Also updated point 3 - no evidence of landowner authority

3.     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 - 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 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 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.

Section 14 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

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.