UKPC PCN - "Driver Left Site"

TRNC

Hi,

I received a PCN from UKPC claiming that the driver left the site. There is no evidence in their "case files" online to show this and the driver denies leaving site.

No joy complaining with the shops and I then appealed to UKPC and that has now been rejected (after they tried to get the drivers details) and I have been given a POPLA code.

I have drafted a POPLA appeal using other examples on the website and welcome your thoughts and opinions. Worth noting the car park is a fair distance away so I wont be able to go and take pictures, but I don't think this is needed as the driver didn't leave site (the site isn't defined!) and there is no evidence otherwise.

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POPLA Verification Code: XXXXX

UKPC Parking PCN no XXXXX

1. Insufficient evidence of the alleged contravention - No evidence that the driver ‘left the site’
2. No Site Boundary Defined
3. Authority to Issue Tickets – No Evidence of Landowner Authority
4. The operator has not shown that the individual who it is pursuing is in fact the driver who is liable for the charge
5. Images of the vehicle contained within the NTK are not compliant with the BPA

1.Insufficient evidence of the alleged contravention - No evidence that the driver ‘left the site’

The notice to keeper states that the reason for issuing the charge notice is: "Driver left site designated for customer parking only"

The driver did not leave site whilst parked, no evidence has been provided from UKPC showing the vehicle driver leaving the site and I require UKPC to provide this. The burden of proof shifts to UKPC to prove their case and to explain why their attendant (presumably):

1.Watched a driver or occupant walk towards the edge of an undefined boundary,

2. Did not attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises.

The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012 District Judge McIlwaine stated: ‘you say he left the premises...where does the premises start and where does the premises finish?....there is a duty to mitigate the loss.’

In this case now under POPLA appeal, I contend that UKPC have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

2. No Site Boundary Defined

The signage does not state the following:

1. What the site boundary is.

2. Show any map of where site boundary begins and ends.

No explanation has been provided as to what constitutes “leaving the site” and it has not been established whether the driver was on site all along. The only evidence provided are pictures of the car parked within a parking bay.

If no such sign or evidence exist, then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of proof, I deny that there was any contravention. As a result, there was no contract formed with the driver to pay a charge in exchange for going off site; there was no consideration, offer or acceptance and no site boundary defined.

Even if a sign says a charge can be issued for “leaving the site”, this means nothing if “the site” is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.

3. Authority to Issue Tickets – 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

4. The operator has not shown that the individual who it is pursuing is in fact the driver who is 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.''

5. Images of the vehicle contained within the NTK are not compliant with the BPA

The images of the vehicle contained within the NTK are not compliant with the BPA CoP. The image on the NTK has clearly been altered and cropped to fit the space, it does not include a timestamp.

Section 7 of the BPA CoP defines the mandatory requirements which the operator has not complied with:

7.3 Use of Photographic Evidence

Photographic evidence must not be used by a parking operator as the basis for issuing a parking charge unless:

a) at least one of the images captured includes a clear record of the vehicle’s VRM to which the parking charge is deemed to apply;

b) the images bear an accurate time and date stamp;

c) the image(s) show, where appropriate, the pay and display tariff receipt as displayed or not being visible; and

d) images generated by ANPR or CCTV have been subject to a manual quality control check, including the accuracy of the timestamp and the risk of keying errors.

7.4 Alteration of photographic evidence

Parking operators must not digitally or by other means alter images used as photographic evidence other than:

a) to blur faces or the VRMs of other vehicles in the image in accordance with their GDPR obligations; or

b) to enhance the image of the VRM for clarity, but not to alter the letters and numbers displayed

The operator has clearly breached Section 7.3 (b) by not including an accurate date and time stamp on the photograph within the NTK and Section 7.4 by altering the image to fit the photograph square within the NTK.

(Image removed by Forum Team) - Image reuploaded with amendment by TRNC.

Jame4ters

Have you checked whether the NTK is POFA compliant?

Jame4ters

There have been at least a couple of similar threads recently about driver leaving site. Have a read of those to assist

TRNC

https://forums.moneysavingexpert.com/discussion/comment/81915366#Comment_81915366

Thank you, I have done and the POPLA appeal has been written based on those threads.

TRNC

https://forums.moneysavingexpert.com/discussion/comment/81915361#Comment_81915361

Appears to be.

Coupon-mad

Therefore remove point 4. The rest is good.

TRNC

https://forums.moneysavingexpert.com/discussion/comment/81915661#Comment_81915661

Thank you, I'll remove. Should I include a picture of the NTK in my appeal, to show the assessor the non-compliance with the picture? Or will they have a copy of it already.

Once I know that I will send off as it seems its good to go :)

Coupon-mad

If the PPC contest your appeal (and many don't) they will have to include the NTK in the evidence pack. So you don't need to.

TRNC

https://forums.moneysavingexpert.com/discussion/comment/81915806#Comment_81915806

Thank you. I'll get it sent now.

TRNC

In typical fashion they have withdrawn. They knew they had zero evidence of the driver leaving the (undefined) site. I just hope they lost some money with POPLA but they probably didn't.

Coupon-mad

Very good news. 🙂

By withdrawing they avoided the POPLA fee.