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UKCPS Leeds - parked in resident's bay but forgot to display permit
CrowClan
post Wed, 21 Dec 2022 - 10:04
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Hi. Driver parked his car in his resident's bay within a secure apartment car park but forgot to display the permit on the dashboard, over a weekend and has received 3 PCNs for parking "without a valid permit" The signage says a permit must be displayed clearly in the windscreen at all times. The photo evidence is from a manual camera, not ANPR. In each case the timed event is from 6 to 8 minutes, from first photo to last photo. Asked the building management company if they could cancel the PCNs as the car was parked in the correct bay number and has a valid permit, just not displayed - but the management company refused saying that driver error is not grounds to cancel a correctly issued PCN.

Any advice on possible grounds to challenge the PCNs, eg consideration period or grace period, or other ?

Many thanks in advance
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post Wed, 21 Dec 2022 - 10:04
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hcandersen
post Sat, 28 Jan 2023 - 07:10
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The OP belatedly posted:

the keeper already identified the driver to UKCPS and thus discharged keeper liability under PoFA.

So OP, you received 3 PCNs, Notices to Keeper, addressed to you and you responded in time with, amongst other matters, the driver's details. Yes?

Therefore we are still dealing with procedural POFA issues. OP, if you named the driver and gave details of a serviceable address then you have relieved yourself of liability whatever happens. They, not you, are in the frame. Pl confirm that you did and how and whether you stated to the PPC that you had given them permission to park.

The issue of leaseholder authority would not be for your defence, it's for theirs and if not accepted would ultimately leave them liable for the parking charge, not you.

This post has been edited by hcandersen: Sat, 28 Jan 2023 - 07:24
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CrowClan
post Sat, 28 Jan 2023 - 11:39
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Really appreciate the additional feedback, I have amended the response, which together with the points made in the original appeal should cover it:

Response to Operators prima facie case:
The Operator’s prima facie case is bogus and has not addressed the grounds of this appeal for the following reasons:
1. The Operator states they are seeking keeper liability in accordance with PoFA. However, the keeper already identified the driver to UKCPS and thus discharged keeper liability under PoFA.
2. As stated in my appeal, the resident is the landholder of the parking bay 303, which has been leased to them by the freeholder in consideration of rents which are duly paid. Neither the management company, nor a third party agent such as UKCPS can come along and seek payment, by way of a Parking Charge Notice, for parking in their own legally owned space.
3. The letter to residents is an irrelevance, it is merely divulging information, it's not contractual nor does it seek to change a contract. It cannot override the leasehold for the parking bay.
4. I assume that the landlord has a responsibility to protect leaseholders' legitimate interests in terms of enjoying the rights granted under their leases by, for example, using an agent (in this case UKCPS) to police the area and taking action against drivers who have no right to park there.
5. I can understand that they would erect signs and with the landlord's approval establish a contractual regime whereby a financial charge for a breach could be imposed on drivers who have no right to park there.
6. However, none of this affects the resident’s rights to park in their own space without imposition of parking charges by a third party.
7. The omission on this occasion (to display a permit) cannot give rise to a separate contract with the landlord's agent and liability for any parking charge is denied.
The parking charge must be cancelled.


I will submit today and see what happens with IAS
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hcandersen
post Sat, 28 Jan 2023 - 14:04
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OP, I think you're missing the point or trying to make 2 points when in reality as far as the keeper is concerned one would suffice.

Where is your evidence that you identified the driver to the creditor. We've not seen it.

This is your primary defence against a claim made against you as keeper so it needs to be evidence-based not just an assertion.

The rest is trying to deal with whether the creditor has a claim against the driver. They don't IF you gave them permission to park and IMO this cannot be left as implicit, you must state the fact and show how this occurred e.g. email, tel call etc.
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Sheffield Dave
post Sat, 28 Jan 2023 - 15:06
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At the start of you appeal you should spell out with absolute clarity that:
1) The appellant (the RK) was not the driver at the time.
2) The appellant has provided the serviceable name and address of the driver to to UKCPS. This was done by email/letter/whatever on [date].
3) Thus I have no liability whatsoever for this charge, under POFA or anything else.
4) For the avoidance of doubt, the driver was: Mrs Miggins, of 42 Arcadia Drive, Little Whinging, Surrey.
5 As the appellant has just identified the driver again, and the driver is not the appellant, there can be no liability for the appellant under POFA.

With that in their face, there is a small chance the IAS will find in you favour. All the remaining stuff is just fluff from the IAS's perspective. They will ignore it as usual, and it will mainly become important if and when you are taken to court.
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CrowClan
post Sat, 28 Jan 2023 - 17:03
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Ok, apologies for any confusion, let me clarify the sequence of events and the dramatis personae.

The keeper and driver are two different persons. The driver has been parking the car in a parking space with the permission of a resident at the location in question who owns the parking bay, bought by that resident on a leasehold basis. Over a period of about a week the keeper received 3 NTKs from UKCPS asserting breach of parking terms for not displaying a permit. The keeper appealed each PCN on UKCPS's online appeal site, identified the driver and provided the driver's contact address.

UKCPS acknowledged having received the driver name and address because they wrote to the driver, rejecting each appeal. The driver asked the resident to ask the management company to cancel the PCNs but the management company refused, stating the PCNs had been issued according to the published parking terms onsite, irrespective of the fact that the resident owns their own space.

The driver appealed to IAS, so the driver is the appellant. Notwithstanding the fact that UKCPS know who the driver is (because they wrote to the driver to reject the appeal in relation to the 3 original NTKs) the operator prima facies case states:

"The operator made their Prima Facie Case on 23/01/2023 11:38:32.

The Operator Reported That...
The appellant was the driver.
The operator is seeking keeper liability in accordance with PoFA..
The Notice to Keeper (Non-ANPR) was sent on 01/12/2022.
The ticket was issued on 28/11/2022.
The charge is based in Contract.

The Operator Made The Following Comments...
The location where the vehicle was parked is private land where parking is provided only for the use of vehicles displaying a valid permit or a charge of £100 to park is incurred. No parking or waiting is permitted at any time for vehicles when not displaying a valid permit. Prior to leaving the vehicle it is the responsibility of the driver to ensure that their permit is clearly on display.

I have attached a copy of the letter dated the 29th July 2022 that was sent to residents by the property manager which outlines the new car park arrangements.

By parking the vehicle whilst not displaying a valid permit the driver contractually agrees to pay a parking charge and UKCPS Ltd therefore request this appeal be dismissed."


The above text is lifted from the IAS appeal case online.

Could it be as simple as this, given that the operator states the driver is the appellant AND is seeking keeper liability under PoFA, even though they know the keeper was not the driver, then their case is bogus, so teh driver's appeal should be upheld ?

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Sheffield Dave
post Sun, 29 Jan 2023 - 10:44
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Most of their case text will just be cut and paste boilerplate. Which is why they are both claiming the appellant is the driver and that they are using POFA to make the keeper liable. This is just covering all bases. It means that if, for whatever reason, the IAS decide that it hasn't been proven that the appellant is the driver, the appellant can still be held liable under plan B.

This doesn't help the driver in the slightest - it just means that any argument abou tPOFA and/or keeper liability is dead in the water, and thus the driver's only useful appeal point is that they had been granted permission to park by the land holder, and thus they had no reason to enter into a parking contract.

There would be a 95% chance that a judge in the county court would understand such a point and would find in the driver's favour. There is about a 0% chance that the IAS will understand this point and find in the driver's favour. The IAS are mostly a sham tribunal, and the driver is highly likely to lose. But it's not binding on the driver. So don't waste much time on this appeal.

This post has been edited by Sheffield Dave: Sun, 29 Jan 2023 - 10:46
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CrowClan
post Sun, 29 Jan 2023 - 10:57
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Not sure I understand the conclusion re driver and keeper liability. UKCPS were informed by the keeper as to the identity of the driver thus discharging keeper liability. UKCPS could have re-issued the PCN to the driver but they have not done that. They merely responded to the original keeper's appeal of the PCN by writing to the driver to reject that appeal. The driver subsequently appealed via IAS and is the appellant.

So how can the UKCPS prima facie case against the appellant stand, given they seek keeper liability as part of their prima facie case against upholding the appellant's appeal and the keeper is not the appellant ?
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hcandersen
post Sun, 29 Jan 2023 - 11:00
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UKCPS acknowledged having received the driver name and address because they wrote to the driver, rejecting each appeal

Pl explain further and post these notices.

This thread has been made unnecessarily complicated by not giving the details of your last post up front. This case has nothing to do with you other than you being the leaseholder, it's about the person who is being pursued by the creditor which is not you.

I am the resident;
I have parking rights under my lease;
The driver parked in my space with permission;
The creditor wrote to me as keeper in respect of 3 PCNs issued in respect of alleged breaches by the driver;
I provided the creditor with the driver's details and summary information that they were permitted to park;
The creditor rejected my challenge but wrote to the driver anyway(is what you seem to be saying) and has not pursued me since (see above);
The driver challenged whatever it was they received and these were rejected by the creditor;
The driver has appealed to IAS.

Therefore we need to see your challenges, their responses, the letters to the driver, their challenges and the creditor's response.

The driver needs a coherent argument supported by facts, not assertions, and these facts are in these docs.

PoFA has no relevance as regards how a creditor may pursue a driver whose details have been provided by a keeper subsequent to being issued with a PCN Notice to Keeper. The IAS (whether IPC or BPA) are trade organisations whose remit extends beyond PoFA and beyond any Code of Practice. Personally, I don't know why creditors submit this type of case to binding adjudication by their trade body when all they're doing is (apparently) pursuing a driver. But they do and throw misguided and inapplicable PoFA references into the mix.
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Sheffield Dave
post Sun, 29 Jan 2023 - 13:13
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QUOTE (CrowClan @ Sun, 29 Jan 2023 - 10:57) *
So how can the UKCPS prima facie case against the appellant stand, given they seek keeper liability as part of their prima facie case against upholding the appellant's appeal and the keeper is not the appellant ?

The IAS need to establish two basic facts. First, that the driver is liable - i.e. they entered into a contract to park, then breached that contract. Second, that the appellant is the driver. If those two facts are shown to be true,then it's pretty obvious that the appellant is liable. Keeper liability is only relevant where the identify of the driver isn't known.

Suppose UKCPS claim that: 1) the appellant is the driver, 2) the appellant is the keeper, 3) the appellant is Lord Lucan.
Then the IAS (or later on, a judge) is free to determine that the facts are that the appellant is the driver, isn't the keeper, and isn't Lord Lucan. Having established these facts. they can then decide what liability the appellant has.

But you are completely wasting your time here. I will say once again: the IAS are a kangaroo court - they won't care in the slightest about all your worries about the details of keeper. Their job is to rule in favour of the parking companies. Which is why we normally advise not appealing to thr IAS, and that if you do, don't waste much time on it,
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CrowClan
post Sun, 29 Jan 2023 - 14:39
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Apologies again for any confusion. I am acting on behalf of the keeper and the driver in this case (as a relative not in any professional capacity) because I have more experience of PCNS, eg via my longstanding and successful dispute with NCP over 8 PCNs at Cambridge rail station.

I take the point that appeals to IAS should not consume onerous amounts of time, so I will get the driver to fire off an appeal using the land/property arguments provided so helpfully by forum members. If IAS reject the appeal and if the case comes to court I will revisit these arguments in more detail with the forum's assistance.

Many thanks again to everyone who has contributed.
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