Free Parking Overstay

Thanks Fruitcake. It was a postal Parking Charge to the registered keeper titled "Re: Parking Charge" but this is still a NTK isn't it, so unfortunately I can not go down this route

Ok here goes for my draft POPLA Appeal. Any comments are appreciated.

POPLA Appeal Process:

POPLA Verification Code: XXXXXXX

Registration Number: XXXXX

I, the registered keeper of this vehicle, received a letter dated XXXX, titled !!!8220;Re: Parking Charge!!!8221; from UKPC Ltd, acting as a notice to the registered keeper. My appeal to UKPC was submitted electronically via the Operator!!!8217;s website on XXXX with an automated appeal confirmation emailed back to myself on the same date. The Rejection letter from UKPC was received 43 days later on XXXX dated XXXX.

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1 !!!8211; Signage !!!8211; The signs are not prominent, clear or legible from all parking spaces, especially in relation to the sum of the parking charge itself. The poor lighting further diminishes the ability of any person to read the signs especially during darkness in the hours the alleged breach is said to have occurred.

2 !!!8211; No Evidence of Landowner Authority

3 !!!8211; Amount demanded is a penalty

4 !!!8211; The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs to to inherent failure to indicate the !!!8216;commercial intent!!!8217; of the cameras.

5 - Photo evidence open to being doctored.



1 Signage


The signage is not prominent, clear or legible from all parking spaces, especially in relation to the sum of the parking charge itself. The poor/lack of lighting further diminishes the ability of any person to read the signs especially during darkness in the hours the alleged breach is said to have occurred.

There was no contract nor agreement on the !!!8216;parking charge!!!8217; at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this substantial charge of £50, raising to £85(!!) as a result of this appeal, which is all out of proportion and not saved by the dissimilar !!!8216;ParkingEye Ltd v Beavis!!!8217; case. The case turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners. The signs were unusually clear and not a typical example of this notorious industry. The Supreme Court were keen to point out that the decision related to that car park and those facts only. In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were !!!8216;large lettering!!!8217; signs at the entrance and all around the car park, according to the judges.

This case, by comparison, does not demonstrate an example of the !!!8216;large lettering!!!8217; and !!!8216;prominent signage!!!8217; that impressed the Supreme Court judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and agreement on the charge existed. At XXXXX Shopping Centre, where the alleged incident took place, the signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible. The wording is mostly illegible for a number of reasons, firstly it is very cluttered with a lack of white space as background. It is undisputable that placing letters too close together in order to fit more information into a smaller space drastically reduces the legibility of a sign, especially on which must be read before the action of parking and leaving the car. Secondly, the positioning of the signs on the outskirts of the car park, considerably high up makes it impossible to read the conditions on the sign from inside the car, should the signs even be noticed. Even stood directly below the signs it was difficult to read as the following images will show.



(Fig. 1) (Fig. 2)

Figure 1 shows the distance of the closest sign from a bay in the car park, the height of the sign and its illegibility from inside the car. Figure 2 shows how far away the position of another similar sign also on the boundary of the site is from the same bay (above the window of the grey car to the left).

(Fig. 3)
Figure 3 is a final sign that ineligibly states the conditions of the car park in a position that can be hidden behind a bush depending on where the driver parks.

After exiting the car parked in the same bay as Figure 1 and walking to that closest sign the figures 4 and 5 show the view from on foot.

(Fig. 4)
(Fig. 5)
Figure 4 emphasises the height of the signs whilst Figure 5 indicates just how small the conditions and charges are, with the most important information relating to parking charges being in the smallest font. Even from standing below the sign it is illegible so how can it be expected of the driver to be aware of the conditions of the car park and the charges imposed? Do the UKPC expect drivers to bring binoculars along with them to the car park! Please note that figure 5 is an image taken with the camera above my head so this is not even the view from standing. It would be reasonable to state that for most drivers inside the car the view of the signs and the legibility of them are even worse.

It should also be noted that the images were taken during daylight so the illegibility of the signs is clear to the independent party mitigating this process. The alleged offence is said to have taken place between XXXX and XXXX, on the XXXXXX, during which there is total darkness. There is some street lighting that provides limited light but conveniently for UKPC their signage is not located in positions to be indirectly lit, nor are their signs directly lit.

Hopefully the figures 1-5 have provided sufficient context in regards to the signs to help you agree that it is not prominent, clear or legible from all parking spaces, especially in relation to the sum of the parking charge itself. Figures 1-5 clearly show that the UKPC signage does not comply with the BPA Code of Practice (18.3), specifically: !!!8216;Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.!!!8217;

The BPA Code of Practice (Appendix sets the requirements for entrance sigs. The following requirements, set out in Appendix B are disputed:
!!!8226; The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
!!!8226; Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement takes places at those times. 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, we suggest that it should be made of a retroreflective material similar to that used on public roads and described in the Traffic Signs Manual.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact !!!8216;Vine vs London Borough of Waltham Forest [2000] EWCACiv106!!!8217; about a driver not seeing the terms and, consequently, she was NOT deemed bound by them. This judgement is binding case law from the Court of Appeal and supports my argument, not the operator!!!8217;s case: http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

The judgement was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to, and cannot have !!!8216;breached!!!8217;, an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as !!!8216;private land!!!8217; and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver!!!8217;s seat before parking. So, for this appeal, I put UKPC to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver!!!8217;s perspective. Equally, I require this operator to show how the entrance signs appear from a drivers seat (not stock examples of !!!8216;the sign!!!8217; in isolation/close up), in the same lighting conditions. I submit that full terms simply cannot be read from a car before parking and mere !!!8216;stock examples!!!8217; of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Please also 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. The driver must be given !!!8216;adequate notice!!!8217; of the charge, which is defined in POFA 2012 as follows:

!!!8220;(3)For the purposes of sub-paragraph (2) !!!8220;adequate notice!!!8221; 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.!!!8221;



Section 18 of the BPA Code of Practice states that if a Private Parking Company !!!8220;intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give !!!8216;adequate notice!!!8217;. This includes: Specifying the sum payable for unauthorised parking, adequately bringing the charges to the attention of the drivers, and following any applicable government signage regulations.!!!8221; From the images already attached it is clear that UKPC do not meet any of the requirements to make the keeper liable according to the BPA.

I am of the view that the signage at the site !!!8211; given the miniscule font size of the charge, which cannot be seen in my photographs (either in the car or stood directly below) !!!8211; is NOT sufficient to bring the parking charge to the attention of the motorist.



2 No Evidence of Landowner Authority

As this operator does not have a proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any !!!8216;site agreement!!!8217; or !!!8216;User Manual!!!8217; setting out details including exemptions !!!8211; such as any !!!8216;genuine customer!!!8217; or !!!8216;genuine resident!!!8217; exemptions or any site occupier!!!8217;s !!!8216;right of veto!!!8217; charge cancellation rights !!!8211; is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.

It cannot be assumed, just because an agent is contracted to merely put up some signs and issue Parking Charges, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce that 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 Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply.

Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises UKPC to charge (which cannot be assumed to be the sum in the small print on a sign because template private parking terms and sums have been known to not match the actual landowner agreement).

Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put UKPC to strict proof of full compliance:

!!!8220;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 agreement!!!8221;



3 Amount demanded is a penalty

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.


4 The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs to to inherent failure to indicate the !!!8216;commercial intent!!!8217; of the cameras.

Paragraph 21.1 of the British Parking Association (BPA) Code of Practice (CoP) advises operators that they !!!8220;may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner!!!8221;. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

UKPC signs do not comply with these requirements because the car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

It is not clear that the cameras are not for security but are there in order to calculate total stay. In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 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.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

https://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: (1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2;
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.



5 Photo evidence open to being doctored.

(Fig. 6 ANPR at entrance) (Fig. 7 No ANPR visible at exit)

I would also bring into question the authenticity of the photographs taken of the vehicle. Both the !!!8216;arrival!!!8217; and !!!8216;departure!!!8217; appear very similar in nature and show a vehicle from the front. It is possible this is just two slightly different images of a car entering the car park and not leaving. Upon visiting the car park the ANPR camera is visible at the entrance but not at the exit (Figures 6 and 7). I ask UKPC to provide photographic evidence of the ANPR camera at the exit along with the images of said vehicle actually leaving the premises.

The image is nearly all black with the vehicle registration barely visible. There is a time stamp at the top left of both images but it is well within the realms of possibility for even an amateur to use free photo-editing software to add this to the images. Not only is this a possibility, but UKPC are known to have practiced this numerous times earning themselves a ban from DVLA and disciplinary action from the BPA. Links to how UKPC tried to steal from people can be found below.

https://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

http://www.bbc.co.uk/news/uk-england-35253759

For the above reasons I request that POPLA uphold my appeal and cancel this Parking Charge.

Am I correct in saying the POPLa appeal should be strong enough to win?

Hi Umkomaas

The parking charge was received in the post within the 14 days of the event so I can't go down that route

Yes unfortunately all boxes have been ticked in their NtK