PCN CUP Enforcement (no parking area)

peter129

A very good day to you all on this blazing hot summer day. I am helping a friend to appeal a PCN at Amber Mews, London N22 6BE.

NTK was sent within 14 days and follows the same format as this one:
https://forums.moneysavingexpert.com/discussion/comment/81580512/#Comment_81580512

Contravention: Parked on or within a no parking area

I responded on their behalf to appeal online with the default template as per NEWBIES thread.

Looking at the photographic evidence, there are photos of the vehicle at the very entrance to the road with more than 10mins between first and last photo taken. Appears like the driver loaded/unloaded something to/from the boot. It cannot be seen or determined, whether the driver left the vehicle unattended.

Looking at signage at the site, I'm sure it fails BPA code of practice for prominent and legible signage - not readable on google maps. The base of the inadequate signage appears to be at least 2 metres from ground level and based on photographic evidence, most likely not have been seen by the driver who appears to have reversed into the side road.

As with most private PCNs, no doubt they will reject the online appeal and have to appeal through POPLA. Is there anything other than signage and Landowner Authority, that I should use as grounds for appeal?

Half_way

Jopson vs Homeguaurd - loading/unloading is not parking could be relevant

Also No parking - prohibitory sign no valid "contract"

Coupon-mad

CUP are pretty bad with signs and with POPLA evidence so it's worth a try. Best if someone can go on foot and get wide angle images of the entrance showing NO SIGNS.

peter129

Thanks for the helpful replies and good points to build a defence on.

- Not parked (stopped ~10mins, perfectly reasonable for loading/unloading). PPC actually took a helpful photo (saved all for evidence) showing the boot lid open.

- Inadequate signage; poor placement (not noticeable from entrance, requires 5m entry before being possibly seen), no parking prohibition.

- Signage stating private road emphasises ACCESS; that would include stops for loading/unloading.

- No obstruction caused by vehicle preventing or interfering with others' access.

- Landowner Authority to be proven.

Clear cut case to all, I'd say.

peter129

CUP have just responded with the following…

Contravention: Parked on or within a no parking area

Thank you for your appeal received on [date] regarding the above detailed Parking Charge Notice.

We have reviewed the case and considered the comments you have made in conjunction with the evidence gathered by the parking attendant. Our records show the notice was correctly issued as the vehicle was parked in breach of the Terms and Conditions of Parking.

Whilst we appreciate your concerns and the comments raised, the vehicle was parked on private land in a no-parking area, in breach of the terms and conditions, on a double yellow lined area (such areas are universally recognised as spaces where unauthorised parking of non-emergency service vehicles is not permitted). The vehicle registration mark was not exempt from parking terms at the above location, and no supporting evidence was submitted in the first instance to support authority from the parking operator to use the space.

Parking conditions apply and must be adhered to by all those that access and utilise private land. Therefore, charges apply to all those that do not adhere to the parking terms and conditions. The T&Cs were not adhered to and therefore a charge was incurred.

Please note that the grace period allowance is not a period of free parking. It refers to parking spaces where payment has been made for use of the parking area for a particular amount of time, or where parking is otherwise permitted. The location above is controlled private land, a restricted no-parking area where no payment was made, there was no maximum parking timeframe, and motorists who are not exempt are not permitted to utilise the parking spaces. Therefore, the grace period is not applicable in this instance.

The Private Parking Sector Single Code of Practice (SCoP) sets the standards with which parking operators regulated by The British Parking Organisation and The International Parking Community must comply. Section 2.19a of the SCoP defines parking as: "a vehicle entering and remaining on controlled land." Section 2.19b defines a vehicle as being parked when it is "stationary other than in the course of driving." A vehicle may be deemed to be parked whether or not the driver has vacated the vehicle or turned off the ignition.

The evidence shows the vehicle was stationary. It was not in the course of being driven and was photographed with the boot open; therefore it was observed as being parked. This observation stands. As parking was not allowed in this area, the charge was accepted.

The consideration period is a time for the motorist to consider the terms and conditions and decide whether to accept them. Section 5.1 of the SCoP 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. Annex B states this is a minimum of five minutes.

The Code details that whether the consideration period has expired is of vital importance, as it is at that point that the driver has accepted the terms and conditions of the controlled land in question. There appears to have been a clear intention to make use of the location. Therefore, this time allowance is not a valid reason for cancellation of the charge in this case, as utility was gained with no primary attempt to seek out and review the parking terms. The allowance was exceeded, further demonstrating use of the site and acceptance of the charge.

A stationary vehicle is classed as parked whether or not the driver or any passengers are waiting within the vehicle or in the surrounding area, and whether or not the engine is running. Parking standards are a matter of safety, security and etiquette. Responsibility rests with the driver to ensure the area selected for stay, no matter the occasion or duration, is suitable and that parking complies with current terms and conditions.

The time- and date-stamped photographic evidence submitted by the operative captured the vehicle parked at the location. Our site maps confirm the signage at the site was clear, legible, unobstructed, in full operation and in proximity to the vehicle.

Please note wardens are not obligated to place notices on vehicles parked within sites where signage is already on display, nor are they required to communicate directly with motorists. They have the right to complete their duties without harassment. Motorists are at liberty to park elsewhere. Those who choose to park on private land without permission are trespassing; therefore, any vehicle found parked without due authorisation from the parking operator will incur a charge.

CUP Enforcement is authorised to issue clearance permits, parking permits and charges under the Protection of Freedoms Act 2012 (PoFA), wherein the registered keeper remains liable in cases of contravention if they refuse to name the driver.

The driver entered into a contract with CUP due to the following:

There was an offer, reasonably brought to attention via signage at the site, setting out the terms and conditions.

The driver was afforded a reasonable opportunity to read and understand the offer and is consequently required to comply with the contract.

Ultimately, it is the responsibility and duty of the motorist to ensure upon arrival that they seek out, read and comply with the terms and conditions accepted upon parking if they wish to use land that does not belong to them. By parking the vehicle in contravention, they accept the potential consequence of incurring a PCN.

Terms and conditions were undoubtedly displayed and contact information is displayed on all CUP signage; however, no contact was made. Unfortunately, sufficient evidence was not provided to warrant cancellation of the PCN.

The terms and conditions are displayed on CUP signage throughout the development to notify drivers of the contractual agreement when entering the location. We can confirm the officer followed the correct procedure and the PCN was issued correctly.

Having considered all grounds for the appeal, you will understand that we are unable to accept your appeal. When parking on private land, the motorist agrees to abide by any clearly displayed conditions of parking in return for permission to park. This location is private property and is managed by CUP Enforcement on behalf of the landowner.

CUP Enforcement fully complies with the guidelines set by the British Parking Association. Please note photographic evidence is taken with every PCN that is issued.

Payments made at this time will be for the amount of £60.00 within 14 days of the date of this notice. Failure to pay may result in further costs being incurred and may also result in CUP Enforcement instructing a Debt Collection Agency to collect any sum due.

You have now reached the end of our internal appeals procedure and therefore have two options:

Pay the total amount due; or

Appeal to the Independent Appeals Service, POPLA (Parking on Private Land Appeals), within 28 days using the POPLA reference code provided.

Should you wish to make a second appeal, this can be done through POPLA at www.popla.co.uk.

By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such, if you wish to further appeal, you must do so through POPLA as outlined above.

POPLA Verification Code: [code]

Please note that if you appeal to POPLA and POPLA's decision does not go in your favour, you will then be required to pay the full amount of £100.00 plus any further charges.

Yours sincerely,

Appeals Department
CUP Enforcement

Is there anything I should add to the defence items I previously listed?

yarpsnehpets

The NtK does not meet the requirements of POFA Schedule 4 Paragraphs 9(2)(b) and 9(2)(e).

In your POPLA appeal you should make individual appeal points and ask the operator to rebut those appeal points.

peter129

Here's the draft appeal I've got now, I'll include photos as mentioned…

POPLA Appeal – Parking Charge Notice [PCN NUMBER]
Vehicle Registration: [REGISTRATION]
POPLA Verification Code: [CODE]

I am the registered keeper of the vehicle and I appeal against the Parking Charge Notice issued by CUP Enforcement.

For the avoidance of doubt, I am appealing as the registered keeper. I am under no obligation to identify the driver and no assumptions may be made regarding the driver's identity.

My appeal is based on the following grounds:

1. The vehicle was engaged in loading/unloading and was not "parked" – Jopson v Homeguard

The operator alleges that the vehicle was parked in breach of the terms and conditions. This is denied.

The operator's own photographic evidence shows the vehicle with its boot open. This is entirely consistent with loading and/or unloading activity rather than parking.

In Jopson v Homeguard Services Ltd (2016), HHJ Harris QC distinguished parking from the temporary stopping of a vehicle for the purposes of loading or unloading. The judgment recognised that temporary stopping for such activities is a normal and necessary incident of everyday use and is not synonymous with parking.

The operator's evidence does not demonstrate that the vehicle was parked. Rather, it demonstrates only that the vehicle was stationary for a short period while engaged in activity consistent with loading/unloading.

The rejection letter itself confirms that the vehicle was observed with the boot open. This supports the conclusion that the vehicle was engaged in loading/unloading rather than parking. Please see photo xx, being the operator's own photographic evidence showing the vehicle with its boot open, consistent with loading and/or unloading activity.

The operator has failed to provide evidence that the vehicle was parked as opposed to temporarily stopped for loading/unloading purposes.

Accordingly, the operator has failed to establish that any parking contravention occurred.

2. The signage was inadequate, non-prominent and incapable of forming a contract

The operator is put to strict proof that clear, prominent and legible signage was present at the site and capable of bringing the alleged contractual terms to the attention of a motorist before any contract could be formed.

The location is a private access road rather than a conventional car park. The signage is not prominently positioned at the point of entry and is not readily visible to motorists entering the roadway.

Based on the operator's own evidence and the site layout:

• The signage is positioned well above normal eye level.
• A motorist must already enter several metres onto the roadway before the signage becomes visible.
• The driver would be required to divert attention away from the roadway in order to locate and read the signage.
• The vehicle was reversed into position, making the signage even less likely to be brought to the driver's attention.

The Supreme Court in ParkingEye v Beavis placed considerable weight on the prominence and clarity of the signage in that case. The circumstances here are entirely different.

The operator is therefore put to strict proof that the signage was sufficiently prominent and that the driver had a reasonable opportunity to read and understand the alleged terms before becoming bound by them.

In the absence of such proof, no contract can have been formed.

Please see photos xx–xx. These photographs show the approach to the site, the location of the signage, the height of the signage above ground level, and the distance a motorist must travel into the roadway before the signage becomes visible. The photographs demonstrate that the signage is not sufficiently prominent to bring the alleged contractual terms to the attention of motorists before entry.

3. The signage does not clearly prohibit loading/unloading or brief stopping

The signage relied upon by the operator does not clearly communicate the restriction now being enforced.

The primary sign at the location states:

"This is a private road. Access required at all times for deliveries. Any unauthorised vehicles will be removed by the police."

This wording does not state:

• No parking.
• No waiting.
• No stopping.
• No loading/unloading.
• That a parking charge will be incurred for briefly stopping.

A reasonable motorist would understand the wording to mean that access for deliveries must be maintained and that vehicles should not obstruct the roadway.

The operator has not alleged that the vehicle obstructed access, prevented deliveries, or interfered with other users of the roadway.

Where signage is ambiguous, any ambiguity must be construed against the party seeking to rely upon it.

The signage does not clearly prohibit the activity alleged by the operator and therefore cannot form the basis of a valid parking charge.

4. The operator has failed to establish keeper liability under Schedule 4 of the Protection of Freedoms Act 2012

The operator is seeking to hold me liable as the registered keeper.

However, the Notice to Keeper fails to comply with the mandatory requirements of Schedule 4 of the Protection of Freedoms Act 2012.

Paragraph 9(2)(a) requires a Notice to Keeper to:

"specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates."

The Notice to Keeper does not specify any period of parking.

Instead, the notice merely provides a date and photographic timestamps.

A timestamp is not a period of parking.

The operator has therefore failed to comply with the requirements of Paragraph 9(2)(a) and consequently cannot rely upon Schedule 4 to transfer liability from the driver to the registered keeper.

As I am appealing as keeper and the driver has not been identified, the appeal must be allowed.

5. The operator is put to strict proof of landowner authority

The operator has not provided evidence that it possesses the necessary authority from the landowner to issue parking charges and pursue them in its own name.

The BPA Code of Practice requires operators to have written authorisation from the landowner.

I require the operator to produce a contemporaneous and unredacted copy of the contract or written agreement with the landowner demonstrating that it is authorised to:

• Manage parking at the site.
• Issue parking charge notices.
• Pursue charges in its own name.
• Take legal action where appropriate.
• Enforce the specific restrictions relied upon in this case.

A witness statement or generic site agreement will not be sufficient.

In the absence of strict proof of landowner authority, the operator has no standing to issue or pursue this charge.

Conclusion

The operator has failed to demonstrate that:

• The vehicle was parked rather than engaged in loading/unloading activity.
• Adequate signage existed capable of forming a contract.
• The signage clearly prohibited the conduct alleged.
• Keeper liability has been established under Schedule 4 of the Protection of Freedoms Act 2012.
• It possesses the necessary landowner authority.

For all of the above reasons, I respectfully request that POPLA allow this appeal and direct CUP Enforcement to cancel the Parking Charge Notice.

Coupon-mad

I would start with a sub heading about a lack of fair consideration period, and quote from the CMA's Open Letter to the wider Parking Sector and point out that includes POPLA.

peter129

Google street map has outdated CUP signage. Satellite imagery is correct though, so I could use it to get the distance of the sign from road entrance.

Having had to rewrite the appeal with the new sign, and the appeal process being the way it is… I've submitted the appeal as follows:

1. Why do you perceive that the terms and conditions were not properly signed?

The terms and conditions were not sufficiently prominent, visible or legible to have been adequately communicated to the driver before CUP alleges that a contractual breach occurred.

The private road is accessed as a side road from a public residential road. The CUP Enforcement sign is not positioned immediately at the entrance. Using Google Maps satellite imagery, I have measured the distance from the point where the private road meets the public road to the nearest edge of the CUP sign as approximately 8.5 metres. This is shown in my Evidence A5. The measurement is provided to illustrate the physical positioning of the sign and is not relied upon as a professional land survey.

Evidence A1 shows the view available as a vehicle turns into the private road. From this approach, the CUP sign is viewed at an oblique angle and the detailed wording is not readily legible. The driver must first negotiate the entrance and proceed into the private road before reaching the vicinity of the CUP sign.

Evidence A2 was taken from approximately the centre of the private road, from the approximate standing height of a 165 cm person, looking towards the front-right corner of the adjacent house. From this position, the nearby McDonald's sign is readily identifiable and legible, whereas the CUP Enforcement sign is considerably smaller and its detailed contractual wording is difficult to read.

Evidence A3 is a close-up photograph taken directly in front of the CUP sign. This represents a substantially more favourable viewing position than that available to a driver approaching or entering the private road.

The CUP sign has three clearly distinguishable levels of text size.

The largest text is the heading:

"Parking Conditions"

The middle-sized text contains:

"Terms of parking apply at all times"
"By parking here you agree to the terms as stipulated below"
"No parking at all times"
"£100 payable (reduced to £60 within 14 days)"

The CUP logo, telephone/website details and BPA logo are also displayed at approximately this level of prominence.

The smallest text contains further substantive terms and conditions, including the provisions concerning vehicles on a double yellow line, on the paved area, double parked, mounting the kerb or causing an obstruction. It also contains the ANPR warning and further payment/DVLA/privacy information.

This is important because the detailed contractual conditions relied upon by CUP are not all contained in the prominent heading or middle-sized wording. Some substantive conditions are contained in the smallest lettering on the sign.

Although I have been able to decipher much of this wording by examining the sign and close-up photograph in detail, that should not be confused with the ability of a driver to read and understand those terms from the driver's position while entering or proceeding along the private road.

CUP states on the sign:

"If you Breach any of the above terms and conditions of use you will be charged as follows"

followed by the £100 charge.

A motorist therefore needs to be able to identify and understand the relevant terms in order to understand the circumstances in which CUP says a £100 charge will arise.

The first prominent sign encountered in the vicinity is instead a McDonald's sign stating:

"This is a private Road. Access required at all times for deliveries. Any unauthorised vehicles will be removed by the police."

This prominently emphasises access for deliveries. It does not prominently communicate the £100 parking charge or the detailed terms relied upon by CUP.

The CUP sign is further into the private road and is less prominent, viewed obliquely from the approach, and contains substantive terms in considerably smaller text.

I therefore submit that the signage did not provide sufficiently prominent and legible notice of the terms which CUP now seeks to enforce.

The photographs A1-A3 demonstrate the issue from the perspective of approaching the sign, viewing it from within the roadway, and finally examining it directly at close range. Evidence A5 demonstrates the approximate physical distance of the CUP sign from the entrance.

I respectfully ask POPLA to consider the actual visibility, positioning and legibility of the signage rather than simply the fact that a CUP sign existed somewhere on the private land.

2. The reason for your appeal

I am appealing as the registered keeper of the vehicle. I am not identifying the driver and no inference should be drawn from this appeal as to the driver's identity.

I dispute the Parking Charge Notice on the following grounds.

1. The vehicle was temporarily stopped for loading/unloading and was not parked

The vehicle was temporarily stopped for approximately 10 minutes for loading/unloading. It was not left parked for the purpose of occupying a parking space.

Significantly, CUP's own photographic evidence shows the vehicle stationary with its boot open. I have included this as Evidence A4. The operator's own photograph is therefore consistent with the circumstances described and does not establish that the vehicle was parked rather than temporarily stopped for loading/unloading.

I rely upon Jopson v Homeguard Services Ltd [2016] B9GF0A9E as persuasive authority concerning the distinction between parking and temporary stopping for activities such as loading/unloading.

2. The signage was inadequate

As explained in detail in the preceding signage section, the CUP sign is approximately 8.5 metres into the private road, is viewed obliquely from the approach and contains three substantially different levels of text size, with substantive contractual conditions appearing in the smallest lettering.

Evidence A1-A3 demonstrate the visibility and legibility of the sign from the approach, from within the road and from directly in front of it. Evidence A5 shows the approximate distance from the entrance.

The first prominent sign encountered instead states that the private road requires access at all times for deliveries. There is no evidence that the vehicle obstructed access or interfered with any delivery.

3. No obstruction was caused

CUP has provided no evidence that the vehicle prevented access, obstructed a delivery vehicle, interfered with another road user or caused any safety issue.

CUP's own sign specifically refers to vehicles "causing an obstruction" among the circumstances described on the sign. No evidence has been provided that the vehicle caused any obstruction.

4. Consideration period

CUP's rejection letter asserts that the consideration period was exceeded and that "utility was gained". However, the consideration period exists to allow a driver an appropriate opportunity to read and understand the terms and decide whether to accept them.

I put CUP to strict proof of the consideration period it had registered for this site, when it considers that period commenced and ended, and how it determined that the driver had a reasonable opportunity to identify and read the signage.

The physical circumstances are particularly relevant: the CUP sign was approximately 8.5 metres into the private road, was viewed obliquely and contained substantive contractual terms in considerably smaller text.

5. Notice to Keeper – failure to specify a period of parking

I have not identified the driver. CUP therefore needs to demonstrate compliance with Schedule 4 of the Protection of Freedoms Act 2012 if it seeks to establish keeper liability.

Paragraph 9(2)(a) requires the Notice to Keeper to specify "the period of parking to which the notice relates".

The Notice to Keeper supplied by CUP gives a date but does not specify a period of parking. It does not state a start time, end time or duration identifying the period of parking.

CUP's two photographs contain timestamps, but those timestamps do not themselves constitute a period of parking specified in the Notice to Keeper.

I therefore submit that CUP has failed to comply with Paragraph 9(2)(a) of Schedule 4.

As the driver has not been identified, CUP cannot rely upon keeper liability unless it can demonstrate compliance with the mandatory requirements of Schedule 4.

6. Paragraph 9(2)(e) and keeper liability

CUP is also put to strict proof that its Notice to Keeper fully complies with Paragraph 9(2)(e) of Schedule 4, including the statutory invitation to the keeper to pay the unpaid parking charge or, if the keeper was not the driver, to notify the creditor of the name and current address of the driver.

I do not identify the driver and therefore CUP must establish that all statutory conditions for transferring liability to the registered keeper have been satisfied.

7. Landowner authority

CUP is put to strict proof of its authority from the landowner to operate at this particular location and to issue and pursue parking charges.

CUP should provide the relevant contemporaneous landowner agreement or other evidence demonstrating its authority to impose the terms, issue charges and pursue unpaid charges at the location during the relevant period.

8. Conclusion

The evidence does not establish that the vehicle was parked in the manner alleged. CUP's own photograph shows the boot open, consistent with temporary loading/unloading. There is no evidence of obstruction or interference with access.

The signage was not sufficiently prominent or legible from the driver's approach. The CUP sign was approximately 8.5 metres into the private road, was positioned away from the entrance and contained substantive terms in considerably smaller lettering.

Furthermore, the Notice to Keeper does not specify a period of parking as required by Paragraph 9(2)(a) of Schedule 4 PoFA, and CUP is put to strict proof of compliance with all other mandatory requirements if it seeks to establish keeper liability.

For these reasons, I respectfully request that POPLA allow the appeal and require CUP Enforcement to cancel the Parking Charge Notice.

I had a stronger and more complete draft of my whole appeal before attempting to submit it through the POPLA process, but was in a rush to get it submitted as I know how over-complicated forms love to time-out so I used AI to split the appeal into the two 10K character limit input boxes. Stupid AI severely over summarised and left out a lot of details and only used up about half of the input limit! Oh well… I'm pretty sure it's good enough as it is for a win. If anyone thinks the fuller draft would be useful for someone else, I can post it.

Coupon-mad

Good work but you know most consumers lose at POPLA, which isn't fully independent. Don't hold your breath and no paying, at all. Regardless of POPLA outcome.