Does POFA apply if no parking actually occurred?

FMH1977

I am a newbie, but have read the newbie FAQs and looked at a few threads, but still have a few questions. 

I received parking charge from UKPC as the registered vehicle owner, but was not the driver at the time of incident. The incident involved entering a car park to pick up a teenage child from the Gym in a car park that is open to the public (no barriers) 24/7 and free of charge during the day but now has restricted parking hours at night (no parking after 9.30pm). Entering the car park, picking up the passenger and leaving took 7 mins. At no point did the driver turn the engine off or leave the car. 

Does this still count as parking and can the car park operator still pursue the vehicle owner under POFA? There do not appear to be any terms or restrictions for entering the car park in these hours, just no parking allowed.

My second question is what happens if I sent an appeal by post and have evidence of signed for delivery, but the car park operator did not respond to any of my appeal letters (I have now sent 2 with no response)? Instead they have sent final warnings and now a debt recovery letter, but have not even acknowledged the appeals I sent. I have checked the appeals address on the back of  their notices matches exactly the address I posted to..... but on their automated telephone service they give a slightly different PO Box number for appeals, so what happens if they provided an incorrect appeals address on their correspondence or they simply just ignored my letters?

I feel the answers are pretty obvious, and their case is already dead, but I'm no expert, so would appreciate some more informed views on this.

Many thanks

Gr1pr

It definitely stopped, it definitely was on site for 7 minutes, doesn't matter if the driver left the vehicle or not 

The signage onsite explained the contract that the driver was allegedly agreeing to,  with a probable typical 5 minutes consideration period 

Ownership is irrelevant,  they sent the NTK PCN letter to the Registered Keeper after accessing the DVLA database for their name and address 

Pofa2012 and Keeper liability can only apply if they fully complied with POFA,  even if the keeper was not the driver 

No parking is probably trespass,  so if the signage says no parking,  then no parking contract was offered,  nothing to consider,  no contract , so in theory,  the driver was trespassing 

Signed for could be anyone signing for it.  Especially if it went to a PO BOX , so appealing online was the best option,  not post,   Posties or similar tend to sign or not sign for P O boxes tc.  Only special delivery should guarantee that the recipient gets it, but even then not P O boxes because its not the Claimant 

Ignore debt collectors letters,  powerless debt collectors 

Do not ignore a Letter of Claim or a court claim pack from the CNBC in Northampton using MCOL 

FMH1977

Thanks for replying Gr1pr.

I don't believe trespass applies here. The car park is open to the public 24/7. There is a manual barrier that's open night and day. There are no 'no parking signs'. The only signs visible during the day say 'maximum stay 3 hours'. No other signs are visible from a vehicle: tiny font and are not illuminated at night. You would need to park, leave your vehicle, go out of your way to approach a sign and read it close up. One of the many small print points on certain signs state the 'no parking after 9.30pm'. This is all a separate point where it's impossible to know the restrictions if doing a pick up at night, but just saying there is nothing about not entering the car park.

Question about the 'anyone could sign for it' point: If I'm using one of their stated methods of appeal and I have evidence it was delivered to that address, then do I need to care who signed for it? Surely any logistical considerations at the PO Box address they elected to use are their responsibility not mine? My responsibility is to demonstrate that an appeal was delivered and received at the address provided within the allotted time, no? That said I wish I'd known to use the online appeals- in hindsight that is what I should have done (handy for next time).

Gr1pr

You stated the following in post 1, and now in your reply , so I took you at your word, mainly because you haven't posted any pictures of the pcn or the signs, or the location 

just no parking allowed.  And also   One of the many small print points on certain signs state the 'no parking after 9.30pm'.

Therefore,  if its after that time, it's probably trespass , clearly its NOT open 24/7

Drivers are expected to get out and check signage,  then comply,  sitting in the vehicle with blinkers on is no excuse for not checking 

Poor and inadequate signage,  poorly lit or unlit signage are good legal points, as is no landowner authority 

I dont think that the signed for issue will affect the core facts of the case,  which centre on the pcn, Pofa2012 liability as keeper,  signage,  lighting and landowner authority 

Coupon-mad

Show us the PCN showing the timings.

savergrant

Gr1pr said:

You stated the following in post 1, and now in your reply , so I took you at your word, mainly because you haven't posted any pictures of the pcn or the signs, or the location 

just no parking allowed.  And also   One of the many small print points on certain signs state the 'no parking after 9.30pm'.

Therefore,  if its after that time, it's probably trespass , clearly its NOT open 24/7

Drivers are expected to get out and check signage,  then comply,  sitting in the vehicle with blinkers on is no excuse for not checking 

Poor and inadequate signage,  poorly lit or unlit signage are good legal points, as is no landowner authority 

I dont think that the signed for issue will affect the core facts of the case,  which centre on the pcn, Pofa2012 liability as keeper,  signage,  lighting and landowner authority 

I have seen places marked as 'dropping off only - no parking', perhaps the op has reason to believe this 'car park' has rules for drop off/pick up outside its parking hours? The implication is that parking is not allowed after 930, not that there is no access after 930. There is at least ambiguity if there is no mention of the car park being closed.
It then boils down to whether seven minutes is reasonable for drop off/pick up.

I do however find it strangely anomalous that a car park can be open to the public 24 hours a day but have no parking allowed at certain times.  When is a car park not a car park?

Car1980

Without actually seeing the contract (the sign) it's like arguing over the state of Schrödinger's cat 🙂

FMH1977

I have an update. After complaining to UKPC's complaints email, they cancelled the parking charge with no further actions.

My complaint included copies of the 3 letters I sent by post with evidence of signed delivery.

It also included my quite detailed audit and assessment of their signage, along with photos. I work in information design, and in particular a niche area that establishes what a human can and cannot process and comprehend in any given scenario, so I was able to use this to my advantage in this case.

I'll quickly respond to the latest posts/ questions:

Gr1pr: The main issue is there was no way to know the car park has any rules or restrictions, because none were visible or could be read, especially at night. The fine IS the communication of the rules. I can confirm there is nothing at all to indicate 'no parking' or that the car park is closed or has any rules beyond the max stay time as you drive in or out. The 'anomaly' you point out is clearly by design in my opinion.

Coupon-mad: I won't show the PCN, but the timings say 7 mins with entry and exist shortly after 9.30pm (the Gym is open 24 hours and at the end of the open car park).

Car1980: I can share photos and locations of all the signs if there is interest. But I think most drivers in this car park would agree with this part: "Without actually seeing the contract (the sign)......" no one sees it if just driving into and then out of the car park.

Thanks for all the replies and suggestions. I'm very happy this one won't be going to court.

Gr1pr

Nearly all signage is poor, inadequate,  unlit,  with ambiguous wordings,  on that point we are agreed 

But it was definitely not a fine, it was an invoice from a private parking company,  UKPC ( magistrates issue fines, not private parking companies  )

Even if UKPC had or did issue a court claim,  its very unlikely that you would be going to court,  more likely to be discontinued before the hearing fee is due,  no landowner authority,  poor,  inadequate,  unlit signage etc always feature in any challenge to a pcn 

As we can see,  the issues were about access, signage,  the BPA CoP etc, not POFA 2012

Coupon-mad

FMH1977 said:

I have an update. After complaining to UKPC's complaints email, they cancelled the parking charge with no further actions.

My complaint included copies of the 3 letters I sent by post with evidence of signed delivery.

It also included my quite detailed audit and assessment of their signage, along with photos. I work in information design, and in particular a niche area that establishes what a human can and cannot process and comprehend in any given scenario, so I was able to use this to my advantage in this case.

Ooh, useful!

Could you show us your findings/pics?

FMH1977

Coupon-mad said:

FMH1977 said:

I have an update. After complaining to UKPC's complaints email, they cancelled the parking charge with no further actions.

My complaint included copies of the 3 letters I sent by post with evidence of signed delivery.

It also included my quite detailed audit and assessment of their signage, along with photos. I work in information design, and in particular a niche area that establishes what a human can and cannot process and comprehend in any given scenario, so I was able to use this to my advantage in this case.

Ooh, useful!

Could you show us your findings/pics?

Sure, always happy to contribute something back.

So I put this in the letter:

1. Inadequate and Unclear Signage
   As established in Vine v Waltham Forest London Borough Council [2000] EWCA Civ 106 and reinforced by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, contract terms must be clearly visible and legible at the time of entry to allow the driver to understand and accept them.
   The signage at the location fails to meet this requirement for several reasons:

• The signs are not illuminated, making them completely unreadable at night when the incident occurred.

• The text size is far too small to be read from a moving vehicle.

• Signs are placed at a height and angle that makes them impossible to read without exiting the vehicle and approaching them directly with a light source.

• One key sign is positioned off to the left-hand side while making a right turn into the car park, making it entirely ineffective.

  Absence of Adequate Notification & Barrier Misleading
  The entrance to the car park has a barrier that was raised at the time of entry, implying the car park was open and unrestricted, as it would be during the day when no restrictions apply. No 'No Entry' or 'No Parking' signs are present at the point of entry. There is no physical or visible indication that entering the premises constitutes acceptance of any terms.
  

  
  

  Then I went through the driver journey into the car park step by step to show it's not possible for a human to knowingly enter into a contract or avoid being fined when doing a quick pickup from the gym at night (not sure why some photos are showing sideways on here). It would require that someone gets out of their car before entering the car park and goes through the car park on foot to read all of the signs before making an informed decision about whether they can enter or not. It's so absurd that anyone would need to go to court to even argue such a thing. 
  

  
  

  Appendix A: Review of signage at the location

  The signs are shown in the sequence a driving vehicle would pass them when entering into the car park.

  
  

  Sign 1 (outside car park): On left hand side of roundabout as you make a right turn to enter the park park:

  
  

  The sign is not illuminated and the text size is too small to read from a moving vehicle whilst turning right on the roundabout, even in daylight. The sign is also in a position that would endanger safety if someone were to get out of their vehicle and attempt to walk up and read it on foot.

  The sign does not mention any restricted hours of operation for entering the car park.

  
  

  Barrier at the car park entry.

  
  

  The barrier was raised, as it is during the day when there are no restrictions. There is no law prohibiting entry and no effort by the car park to prevent entry. There are zero ‘no entry’ or ‘no parking’ signs at this point.

  
  

  Sign 2: Attached to a post having entered the car park and proceeding along the main road through it.

  
  

  The sign is not illuminated and high up (around 3m on a metal post). It is not inline with the drivers eye line whilst driving and focusing on the road ahead. The sign only mentions the maximum stay. The rest of the information would not be readable from a vehicle, even in daylight and does not mention the time restrictions or any notice of penalties.

  For reference, I am 1.8m tall and pointing my phone up from directly in front to take the photo.

  
  

  Sign 3: Many signs in different places around the car park. They are only visible and readable during daytime and only if someone exits the vehicle and walks up to them on foot.

  
  

  These signs are too high up and placed in positions and locations that render them unreadable from a vehicle driving down the main road of the car park. The text size is too small to read from a moving vehicle, in particular any reference to the restricted time or the penalty is barely readable when standing right in front of the sign in daylight.This is also the only sign that mentions the hours that parking is permitted, but can only be read after someone has parked and walked over to the sign, therefore ineffective at preventing the parking in the first place. They do not appear to be illuminated and so not visible or readable at night.