PCN - UKPS - Dragon Retail Park, Cardiff

[b789]

Use this. It keeps the appeal as a registered keeper appeal, but throws the whole evidential, contractual, PoFA, signage, boundary, passenger-liability, "customer" definition, Equality Act and burden-of-proof argument at them.

The legal hooks are Schedule 4 paragraph 9 of PoFA for keeper liability, the Consumer Rights Act 2015 for fairness/transparency/ambiguity, and the Equality Act 2010 for service-provider duties and reasonable adjustments. The portal rejection also shows UKPS relied on the assertion that occupants allegedly walked offsite and that no onsite businesses were used, without properly answering the keeper-liability point.

I am the registered keeper. I dispute liability for this Parking Charge Notice. No driver has been identified and no admission is made as to the identity of the driver.

This appeal is brought on the following grounds:

1. the operator has failed to establish keeper liability;
   
2. the operator has failed to prove that any parking charge was lawfully incurred by the driver;
   
3. the alleged contravention is unsupported by evidence;
   
4. the operator has not proved that the driver was not a customer;
   
5. the operator has not proved that any occupant was not a customer;
   
6. the operator has not proved that any clearly defined site boundary was brought to the driver's attention;
   
7. the operator has not proved that the driver can be liable for the independent actions of adult passengers;
   
8. the term "customer" is undefined, ambiguous and incapable of supporting the allegation made;
   
9. the operator has failed to address Equality Act considerations;
   
10. the operator has failed to provide strict proof of landowner authority, signage, contractual terms and the evidence relied upon.
    

The alleged contravention is stated as:

"Non Customer Parked in a Customer Only Car Park."

That allegation is denied.

A vehicle cannot be a "customer" or a "non-customer". Only a person can. The operator must therefore prove, on evidence, that the driver was not a customer of any onsite retail establishment during the whole material period. The operator has not done so.

The operator appears to rely on selected CCTV stills and/or ANPR-style images. Those images do not prove the alleged contravention. They do not identify the driver. They do not identify all occupants of the vehicle. They do not prove that every person connected with the vehicle is shown. They do not prove that no person connected with the vehicle entered, browsed in, enquired at, collected goods from, returned goods to, used services at, or otherwise attended any onsite retail establishment. They do not prove that the driver was not a customer.

The operator's position appears to be that one or more persons were seen walking away from the vehicle and that this proves a "non-customer" breach. That is a speculative inference, not proof. A few selected stills of people walking in a particular direction do not prove what happened throughout the entire alleged parking period. They do not prove where every occupant went. They do not prove that no one later attended an onsite business. They do not prove that no one had already attended an onsite business. They do not prove that no one used a click-and-collect service, customer service desk, returns service, enquiry point, showroom, retail counter, café or other customer-facing facility.

The burden of proof rests with the operator. It is not for the registered keeper to identify the driver, explain the movements of unidentified persons, or disprove a speculative allegation.

The operator is put to strict proof that the driver was not a customer of any retail establishment at any point during the whole material period. That proof must be actual evidence, not assertion.

The operator is further put to strict proof of the meaning of "customer". The term is not self-defining. A person may be a customer by purchasing goods, browsing goods, comparing prices, making an enquiry, collecting goods, returning goods, seeking assistance, using a service, accompanying another customer, attending customer services, or visiting with the intention of transacting. If the operator's case is that a person must actually complete a purchase to qualify as a "customer", then the operator must identify the signage term saying so. In the absence of such wording, the ordinary and consumer-friendly meaning of "customer" cannot be artificially narrowed after the event.

Any ambiguity in a consumer term must be construed against the trader/operator and in favour of the consumer. A vague "customer only" term cannot be converted after the event into a strict "purchase only" requirement, a "do not leave site" requirement, or a "all occupants must remain within an undefined boundary" requirement unless that precise obligation was clearly and prominently displayed before parking.

The operator also appears to rely on the assertion that occupants "walked offsite". That allegation is also denied and unsupported.

The operator is put to strict proof of the site boundary. If UKPS alleges that a person walked "offsite", it must prove where the boundary of the relevant site begins and ends, how that boundary was defined, and how that boundary was communicated to the driver before any alleged contract was formed. A driver cannot be bound by an invisible or undefined boundary. A person cannot knowingly breach a boundary term if the boundary is not clearly marked, explained and incorporated into the alleged contract.

The operator must therefore provide a contemporaneous site plan, the landowner-defined enforcement boundary, the precise route allegedly taken by the person or persons shown in the stills, and the signage relied upon to prove that the boundary was clear to a motorist at the material time. Without that evidence, the allegation that anyone walked "offsite" is meaningless.

There is a further fundamental problem. Even if the operator could show that an adult passenger walked away from the site, that does not prove that the driver breached any contractual term. The alleged parking contract, if any, would be between the operator and the driver. The operator must prove that the driver personally breached a clearly incorporated contractual term. It cannot simply make the driver liable for the independent actions of adult passengers unless the signage clearly, prominently and fairly imposed such an obligation on the driver before parking. No such evidence has been provided.

The operator is therefore put to strict proof that the signage expressly warned drivers that they would be liable for the conduct of all occupants, including adult passengers, and that such a term was sufficiently prominent, transparent and fair. If the sign merely says "customer only", that is not the same as saying "the driver is liable if any passenger walks beyond an undefined site boundary".

The operator has also failed to prove continuous observation. If UKPS wishes to allege that no onsite businesses were used, it must produce continuous CCTV or equivalent evidence covering the whole alleged parking period, all relevant persons, all relevant routes, all retail entrances and the whole site boundary. Selected stills are not enough. The operator cannot prove the negative proposition that no customer activity occurred by selecting a few moments from CCTV and ignoring the rest of the period.

The rejection also fails to deal properly with keeper liability.

This is a registered keeper appeal. No driver has been identified. There is no legal presumption that the registered keeper was the driver. If the operator is not relying on Schedule 4 of the Protection of Freedoms Act 2012, it has no keeper liability and can only pursue the unknown driver.

If the operator is relying on Schedule 4, it is put to strict proof of full compliance with every applicable condition. Keeper liability is not created merely because a notice was issued within 14 days. PoFA requires full statutory compliance, including a proper period of parking, a compliant statement of the circumstances in which the charge arose, a compliant invitation to the keeper, a compliant warning of keeper liability and proof that a parking charge was lawfully incurred by the driver in the first place.

The Notice to Keeper is defective. It does not specify a proper period of parking. It gives an incident time and vague wording referring to a period "immediately preceding" that time. That is not a specified period of parking. It also fails to prove the circumstances in which the charge allegedly arose because it merely asserts "Non Customer Parked in a Customer Only Car Park" without proving that the driver was not a customer or that any clearly incorporated contractual term was breached.

Even if the IAS were to find that the Notice to Keeper was technically capable of invoking PoFA, the operator must still first prove driver liability. Keeper liability under PoFA is only secondary liability for a parking charge properly incurred by the driver. If no driver liability is proved, there is nothing capable of being transferred to the keeper.

The operator's evidence does not prove driver liability.

The operator has also failed to provide strict proof of landowner authority. UKPS is put to strict proof that it had authority from the landowner, at the material time, to issue parking charges for this precise alleged breach, at this precise location, under this precise "customer only" regime, and to pursue the charge in its own name. A generic site agreement, witness statement, redacted document or non-landowner authority will not be sufficient.

The operator is also put to strict proof of the signage in place on the material date. This must include entrance signage, all internal signs, their exact wording, their size, position, lighting, prominence, and visibility from the driver's route and parking position. The operator must prove that the alleged "customer only" term, any "leaving site" term, any site-boundary term, and any term making the driver liable for the conduct of passengers were all clearly and prominently displayed before the alleged contract was formed.

The operator's rejection refers generally to signage being compliant and clearly illuminated. That is not evidence of contractual incorporation. It is a bare assertion. The issue is not whether signs existed somewhere on site. The issue is whether the precise term relied upon was clear, prominent, transparent, fair and capable of binding the driver before parking.

There are also Equality Act considerations. The operator was put on notice that there were disability-related considerations. UKPS, the landholder and the retailers are service providers or agents involved in the provision of services to the public. A rigid, automated and evidence-free "customer only" enforcement regime, applied without proper consideration of disability-related circumstances or reasonable adjustments, is unsafe and unfair. The operator's rejection does not appear to address that issue substantively.

The operator's rejection is therefore inadequate. It does not properly answer the keeper-liability point. It does not prove the alleged contravention. It does not define "customer". It does not prove that the driver was not a customer. It does not prove that no occupant was a customer. It does not prove any site boundary. It does not prove that the driver can be liable for the actions of adult passengers. It does not provide continuous evidence. It does not prove landowner authority. It does not prove contractual incorporation. It does not address the Equality Act issue.

The operator's case is based on inference and assertion. That is insufficient.

The appeal must be allowed and the charge cancelled.

Because the kangaroo court that is the IAS, you will have to reproduce that as a PDF file and upload it to the IAS site as your appeal. Just put in the ridiculous text box (you can't paste into it unless you know how to override their ridiculous javascript designed to frustrate users) "See attached [filename].pdf".

Remember, you are only appealing as the Keeper. Do not select anything that may identify the appellant as the driver, which we know the Keeper was not.