UKPC charge advice - parked on bay line

Wel2k

Only just realised the time limit on the POPLA code. Stupidly I have let it expire!

Le_Kirk

They last 33 days, have you tried it?

Wel2k

Yeah I'm just over 33

kryten3000

Bah.  Just wait for a Letter of Claim and ignore UKPC/DCBL begging letters in the meantime.
Do complain to the landowner and write to your MP while you wait.  

Coupon-mad

Wel2k said:

Yeah I'm just over 33

No worries. I never bother with POPLA anyway for friends.

Sit tight. Do nothing except the below.

By going confidently into the 'ignore' stance, the only steps to take (because you MUST check every letter) are:

- Tell them if you move house within 6 years.

- Ignore the tedious £170 threatograms shown in pictures in the 4th post of the NEWBIES thread.

- Come back if you get a solicitor's LBC as per the 2nd post of the NEWBIES thread.

Nobody pays a penny and no hearing is even needed in most cases. Search the forum and read a few cases as they are easy to beat by waiting for a claim form - it is easier than appealing!

There is no risk AT ALL in defending a court claim. No CCJ. No bailiffs.

Wel2k

Thanks very much @Coupon-mad. I've been given an extension because I was abroad. So going to send them this ASAP.

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.

{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.

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 personIn 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.'' 

Wel2k

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.

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

Coupon-mad

Yes give it a go but then go into 'ignore mode' if you lose, which most people do as POPLA is considered non-independent of the BPA.

Wel2k

Hi, UKPC came back with 'evidence' including:

• T&Cs
• Contract for supply of car park management services (redacted to conceal landowner name)

And the below response. I've been requested to comment on the 'evidence' and planned to say things like:

• No clear evidence of vehicle protruding defined area
• No obstruction of road users or access
• No alternative parking options were available
• Sign was faded, lighting wasn't sufficient and text too small, as this wasn't addressed

On the 26/11/2024, our parking operative issued a parking charge virtually to vehicle registration XXXXXXX at Highbridge Retail Park. The parking charge was issued because the vehicle was not parked correctly in the bay markings

Following the parking event on 26/11/2024, UKPC had reasonable cause to obtain the details of the registered keeper from the DVLA for the purposes of issuing a Parking Charge Notice (PCN) by post- a copy of this PCN is included in this pack. The PCN was issued on 29/11/2024

The parking charge rate was £100.00, reduced to £60.00 if payment was received within fourteen days.

An appeal was received from the vehicle's registered keeper XXXXXXX on the 10/12/2024, which the appeals department investigated and decided to reject.

Whilst UKPC do not dispute these mitigating circumstances, we cannot accept them as evidence when reviewing a parking charge notice. A bay is an area that is clearly defined on both sides in which the vehicle is to park. The vehicle must be positioned within the markings and not protruding any part of the defined area. Hatched areas marked out on a road, or in a car park, are done so to prevent motorists from parking in these areas, this is not part of the bay, as they may be deemed inappropriate for parking for various reasons, including that it may cause obstruction to road users for the purposes of access.

The appellant could have found alternative parking space so that they would be able to park within a bay and avoid a PCN. Instead, they chose to park in a manner which was not in compliance with the parking contract, and therefore accepted he could potentially receive a PCN. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park.

We have made it clear on our parking charge notice, and all subsequent correspondence, that we are seeking payment of an outstanding parking charge, thereby clearly identifying ourselves as the creditor.

The contract between UK Parking Control Ltd and the landowner (or their managing agent) authorising UKPC to provide parking management, and therefore issue parking charges to vehicles breaching the terms of parking, is confidential and we are unable to provide a copy for reasons of commercial sensitivity. We have however provided a redacted copy, with sensitive information covered. The redacted contract confirms our authority in an ongoing agreement. If neither party terminates the contract, as in this case, the contract will continue on a rolling basis.

We have provided the T&C’s in relation to the rolling contract.
Although the BPA Code of Practice outlines what authorisation must set out, we have also shown that beyond checking documentation; there is equipment, signage and on occasion personnel on site to manage the function of enforcement and this cannot happen without the landowner’s authority. I am sure that if the parking operator was not allowed to issue charges on site the landowner would not permit the parking operator to keep its signage on site nor would the landowner allow motorists to park on its land without authorisation.

UK Parking Control signage complies fully with section 3 of the British Parking Association Code of Practice and we reject the suggestion that it is vague or misleading. Entrance signage advises motorists that terms of parking apply, and that notices within the car park should be checked to identify the full terms and conditions. These notices are placed throughout the car park. It is ultimately the responsibility of the motorist to ensure they identify the terms of parking, and then decide whether to park their vehicle, or leave the site if they are unable to meet those terms.

The Private Parking Sector Single Code of Practice (The Code) Clause A.3.1 and A.3.2 mentions the contrast and illumination of signage - There must be colour contrast between the text and its background. The best way to achieve this is to have dark, preferably black, text on a white background, recognising that the use of corporate colours, whilst permissible, could cause problems e.g. for drivers who are colour blind. Signs must always be readable and understandable, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.

UKPC’s signs are readable and understandable at all times, including during the hours of darkness or at dusk when parking enforcement activities take place.

This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, UKPC signage has been manufactured using a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.

The Private Parking Sector Single Code of Practice (The Code) does not stipulate that signs must be lit at night. UKPC can confirm that there is sufficient ambient lighting from lampposts or other light sources found within the site. As a result, it is our position that under these conditions, the signage would have been sufficiently visible. When designing our signage, UKPC utilize as much contrast between the various sections to ensure that they are as legible as possible in all conditions.

Please see attached evidence to show that the lighting in the car park is sufficient.

Following the parking event, UKPC had reasonable cause to obtain the details of the registered keeper so that a parking charge notice could be issued by post. A copy of this notice is included in this case summary, dated 29/11/2024. Issued 3 days after the date of the parking event (where a Notice to Driver was not served), the parking charge notice complies fully with paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 in permitting the registered keeper to be held liable to pay this unpaid parking charge.

The highest court in the UK, the Supreme Court, has unambiguously confirmed that parking charges issued on private land are fully enforceable. In the case of ParkingEye v Beavis [2015] UKSC 67 their Lordships stated that private parking charges were enforceable because they served a legitimate interest and were in the interests of the public generally. The case confirmed that the amount of the charge does not have to reflect any loss that might have been caused by breach of the terms and conditions of parking. The Supreme Court decision is binding law on all other courts throughout the UK.

A driver is permitted a consideration period by clause 5.1 Annex B of the Private Parking Sector Single Code of Practice (The Code) to review the signs and decide if they are going to stay or go. The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with the motorist. In this instance the motorist is not present in the vehicle so we would contest that means an event has taken place.

UKPC must maintain a consistent approach when issuing and upholding a charge. In this instance, this vehicle had been parked on site in direct breach of the terms and conditions of parking on site as stated on signage. The vehicle was parked in close proximity to UKPC signage, please see all photographic evidence to support this.

The parking charges issued by UK Parking Control Limited are based on a contractual agreement between UKPC and the driver, as detailed on the signage displayed in the car park. The signage states the terms and conditions of parking and explains that a parking charge will be payable if the terms are not met by the driver. We ensure that signage is ample, clear and visible, wholly in line with the British Parking Association Code of Practice. It is settled law that a driver is deemed to have accepted the terms and conditions of parking by the act of parking and leaving a vehicle.

Ultimately, it is fundamentally the responsibility of the motorist to identify the terms of parking when leaving their vehicle on private land. If they feel they are unable to adhere to the terms, they may leave the site before agreeing to those terms.

There are sufficient signs advising drivers that not parking within bay markings may result in a parking charge being issued. XXXXXXX's the vehicle was not parked correctly in the bay markings; consequently, the parking charge was issued correctly.

A letter was sent to XXXXXXX informing her of our decision on the 06/01/2025. 

Coupon-mad

Nothing has changed about my advice and you already know about POPLA Comments stage because I tell people about that in the 3rd post of the NEWBIES thread.