Premier Park Ltd issued a PCN in Wareham

4) Non compliant Notice to Keeper - no keeper liability established under POFA 2012
The registered keeper of the vehicle can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. Schedule 4 para 9(2)(a) of the Act states that the notice to keeper must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Schedule 4 para 9(2)(e) of the Act states that the notice to keeper must “state that the creditor does not know both the name of the driver and a current address for service for the driver”. Schedule 4 para 9(2)(h) of the Act states that the notice to keeper must “identify the creditor”.

Premier Park Ltd has not complied with paragraph 9(2)(a) as it has not specified the period of parking to which the Notice to Keeper relates, it has merely shown the the time of issue of a PCN. Premier Park Ltd has not complied with paragraph 9(2)(e) as it has not stated that the creditor does not know both the name of the driver and a current address for service for the driver. Premier Park Ltd has not complied with paragraph 9(2)(h) as it has not identified the creditor.

The Notice to Keeper is non-compliant under the POFA 2012. The requirements for pursuing the keeper for the charge have not been satisfied and therefore no keeper liability exists.

Dear POPLA Assessor,
RE Verification Code: xxxxxxxxxxxx

I am the registered keeper of vehicle ABC 1234 and wish to appeal on the following grounds:

1. Inadequate signage in vicinity – no contract with driver formed
2. The charge is for breach (not a contractual fee) and is not a genuine pre-estimate of loss but an unenforceable penalty.
3. Lack of proprietary interest and non-compliant contract with landowner
4. Operator not properly trained and PCN not issued in line with BPA code of practice
5. Non compliant Notice to Keeper – no keeper liability established under POFA 2012
6. The charge is unreasonable and unfair

1. Inadequate signage in vicinity – no contract with driver formed
The driver turned into Christmas Close from the west. Entering the road from this direction, no signs are apparent drawing attention to any parking restriction and there are no road markings at all where the vehicle was parked. Along with the fact that multiple other cars were parked on the same road, the driver was led to believe that the zone was unrestricted. To be clear, the driver neither saw any signs nor knew about any terms & conditions which governed the layby where the vehicle was parked.

On revisiting the location, it’s clear that the sign (which was fixed to the “Christmas Close” council road sign) was only visible if approaching Christmas Close from the east. There was no visible signage on the opposite side at all. Closer inspection of the sign attached to the Christmas Close road sign revealed that it does not contain any terms and conditions and hence even if the driver had seen this, a contract would not have been formed. To be relied on as having formed a contract, all terms and conditions must be readable, understood and agreed to by any driver (elderly, disabled, short sighted etc) on entering the area and in any lighting and all weather conditions. Upon further inspection of the area, a small sign with terms and conditions was observed fixed to Robert Christmas House. On this sign, the font outlining the contractual terms is less than 10mm high. To insist that such text is readable from the layby is ridiculous and unacceptable. Both signs are unlit, yet the sign fixed to the house claims that the “terms and conditions apply at all times”. Furthermore, the terms are misleading and use words which attempt to dress up the charge as a contractual' fee, which it is not (see point 2 below).

No contract with the driver was formed. There was no agreement to pay. No consideration/acceptance flowed therefore no contract exists.

2. The charge is for breach (not a contractual fee) and is not a genuine pre-estimate of loss but an unenforceable penalty.
Although certain wording on the sign attempts to claim that the sum sought is a contractual term, other wording on the sign contradicts this and shows the true nature is for breach, as indicated by the phrase ‘if you park on this land contravening the terms and conditions'.

In their rejection of my appeal Premier Park Ltd state that the PCN was “issued to your vehicle for a breach of the advertised terms and conditions’. It is, therefore, clear that the charge is for breaching specific stated conditions. Parking for non-resident drivers is not offered for a fee because it is not allowed. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be shown to be a genuine pre estimate of the loss which may be caused by the parking breach.

The charge demanded far exceeds any loss to the landowner. As it exceeds any loss, it becomes a penalty. Premier Park Ltd has not stated why it feels a £100 charge is an appropriate pre-estimate of its loss. For this charge to be justified a full breakdown of the costs Premier Park Ltd has suffered as a result of the car being parked in the layby is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked in the layby.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a single breach of the parking terms, and in this instance there was no such loss.

3. Lack of proprietary Interest & non-compliant contract with landowner
Premier Park Ltd’s lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowners and I have seen no evidence of a compliant contract with the landowner.

I do not believe that Premier Park Ltd has demonstrated a proprietary interest in the land, because they have no legal possession which would give Premier Park Ltd any right to offer parking spaces, let alone allege a contract with visitors of the lawful owner/occupiers.

I believe there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant.

There is no contract with the landowner/occupier that entitles them to levy these charges and therefore no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Premier Park Ltd which must prove that it is not in breach of section 7.1 of the BPA code. I, therefore, put Premier Park Ltd to strict proof of the contract terms with the site landowner (not an individual lessee or managing agent as they are another third party). A site agreement/witness statement saying they 'can issue Parking Charge Notices' will not suffice; this is not the issue. The whole unredacted contract is required to show what is authorised by way of charges and whether only for breach - and whether Premier Park Ltd have the assignment of title or standing needed to pursue the matter in the courts in their own name.

4. Operator not trained and PCN not issued in line with BPA code of practice
The BPA Approved Operator Scheme Code of Practice for control and enforcement of parking on private land states that Premier Park Ltd must “allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action”. In this case, Wareham Hospital IT systems show that the vehicle arrived at 9.28am. The PCN was issued at 9.29am, i.e. just 1 minute after the vehicle arrived. Even if the driver had noticed signs and been aware of parking restrictions, it is clear that 1 minute is not long enough to make a decision about whether to stay or go.

If it was self-ticketing as defined by para 15.2 of the BPA code of practice, I contend that the ticketer was not trained in the BPA code of practice and put Premier Park Ltd to strict proof to show otherwise. The code requires that Premier Park Ltd must provide the landowner with “an up-to date copy of the Code and get their signed confirmation that they have read the Code and agree to keep to it”. Regardless of whether or not self-ticketing was involved, I require an explanation from Premier Park Ltd as to why no grace period was allowed as mandated by clause 13 of the BPA code of practice.

5. Non compliant Notice to Keeper - no keeper liability established under POFA 2012
The registered keeper of the vehicle can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. Schedule 4 para 9(2)(a) of the Act states that the notice to keeper must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Schedule 4 para 9(2)(e) of the Act states that the notice to keeper must “state that the creditor does not know both the name of the driver and a current address for service for the driver”. Schedule 4 para 9(2)(h) of the Act states that the notice to keeper must “identify the creditor”.

Premier Park Ltd has not complied with paragraph 9(2)(a) as it has not specified the period of parking to which the Notice to Keeper relates, it has merely shown the the time of issue of a PCN. Premier Park Ltd has not complied with paragraph 9(2)(e) as it has not stated that the creditor does not know both the name of the driver and a current address for service for the driver. Premier Park Ltd has not complied with paragraph 9(2)(h) as it has not identified the creditor.

The Notice to Keeper is non-compliant under the POFA 2012. The requirements for pursuing the keeper for the charge have not been satisfied and therefore no keeper liability exists.

6. The charge is unreasonable and unfair
The amount of £100 demanded by Premier Park has not been individually negotiated and is disproportionately high. Therefore it falls under the definition of an unfair term as defined in The Unfair Terms in Consumer Contracts Regulations 1999. The Regulations state that terms are unfair if they have the object or effect of “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” and that unfair terms shall not be binding on the consumer.

The charge that has been levied is also an unreasonable indemnity clause as defined in the Unfair Contract Terms Act 1977, which states that “A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness”

I contend that it is unreasonable to attempt to profit by charging a disproportionate sum where no loss has occurred. I require Premier Park to justify that their charge, under the circumstances outlined and with their insufficient signage in mind, does not cause a significant imbalance to my detriment and does not breach the two acts quoted above.

For the 6 numbered reasons outlined above, I request that my appeal is upheld and the charge is cancelled.

As an additional aside to my above points, I am aware that I have the right to see the evidence provided by Premier Park to POPLA, along with the right to respond and rebut that evidence. I have also been made aware that, on a number of occasions, this information has not been received by appellants. I would request that the assessor attempts to ensure that I receive the evidence in a timescale sufficient for me to fully review and respond to it.