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  • FIRST POST
    • askgar
    • By askgar 11th Aug 17, 4:26 PM
    • 26Posts
    • 13Thanks
    askgar
    POPLA Appeal Premier Park Ltd
    • #1
    • 11th Aug 17, 4:26 PM
    POPLA Appeal Premier Park Ltd 11th Aug 17 at 4:26 PM
    Hi,

    I received a PCN from Premier Park a couple of months ago via the post for exceeding the maximum stay period in a free car park. I sent off the appeal template as found in the Newbie thread. I've since received my POPLA code and wanted feedback of what I've currently got for my appeal. It's been composed using the samples found in the Newbie thread.

    I am the registered keeper and I am appealing this parking charge from Premier Park Limited at Hathaway Retail Park Car Park.

    To protect the driver, they have not been named.

    My appeal as the registered keeper is as follows:

    No evidence of Landowner Authority
    No keeper liability
    Inadequate signage

    1. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the 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 CoP) 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 this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    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

    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.’'

    3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which 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 for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    IMAGE OF TWEET

    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 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    IMAGE OF BEAVIS SIGN

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' 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.

    IMAGE OF SIGN FROM LOCAL CARPARK

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

    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 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This 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 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) 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 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator 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's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
    Should I add more to this, I have more images of the carpark showing where the parking signs are relative to where the car was parked on the day in question, should I include some of these?

    The PCN mentions within 29 days, which I understand isn't POFA compliant BUT failed in an appeal recently so is it even worth me mentioning that?

    I'm happy to upload a copy of the PCN if required but it'll take me until later to scan, retract any specific information about the situation and post it.
Page 1
    • askgar
    • By askgar 13th Aug 17, 8:06 AM
    • 26 Posts
    • 13 Thanks
    askgar
    • #2
    • 13th Aug 17, 8:06 AM
    • #2
    • 13th Aug 17, 8:06 AM
    Does anyone have any feedback on this or shall I submit as is?
    • Coupon-mad
    • By Coupon-mad 13th Aug 17, 4:19 PM
    • 51,470 Posts
    • 65,059 Thanks
    Coupon-mad
    • #3
    • 13th Aug 17, 4:19 PM
    • #3
    • 13th Aug 17, 4:19 PM
    The PCN mentions within 29 days, which I understand isn't POFA compliant BUT failed in an appeal recently so is it even worth me mentioning that?
    I'd say yes, see this one, albeit you MUST change 'POFA para 8 non-compliance' to para 9, if it wasn't a windscreen PCN case for you.

    http://forums.pepipoo.com/index.php?showtopic=114925&st=20&start=20

    So, you need a paragraph explaining to POPLA why the NTK is not compliant (be aware their Lead Adjudicator doesn't agree, and thinks 'within 29 days' is OK!). Still include something about it though, as he doesn't make the decision. An Assessor will, so try everything, use Dennis Basher's advice there and get the dates into your appeal.

    Should I add more to this, I have more images of the carpark showing where the parking signs are relative to where the car was parked on the day in question, should I include some of these?
    Yes, put images in (embed them into the word document and explain them) as long as they support your case, no close up of a readable sign of course.

    Also, if it was a small 'overstay' alleged of less than 15 minutes or so, add a BPA Grace Periods section.

    And if the signs didn't warn drivers at the entrance that the ' free parking time' was somehow being back-timed to start from the moment the car left the road outside, add another point where this person starts 'specifically missing' and quotes consumer law about misleading omissions:

    http://forums.moneysavingexpert.com/showthread.php?p=72969309#post72969309

    Chuck it all at them, and if you lose in the end, ignore them unless they try a small claim.

    Oh - final thing - BEFORE putting PP to POPLA stage, complain to the landowner/retailer Store Managers and ask them to cancel it on the spot. Do that BEFORE POPLA, your code lasts for just over 30 days, so complain first (even if you already have - do it more assertively, and to other Managers!). Some PPCs will cancel more easily before POPLA but will refuse, after a person loses, when they say it's ''too late'' for landowner cancellation.

    Including to the managing agents who run the place - dead easy to Google for any named retail park.
    Last edited by Coupon-mad; 13-08-2017 at 4:22 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • askgar
    • By askgar 22nd Aug 17, 5:01 PM
    • 26 Posts
    • 13 Thanks
    askgar
    • #4
    • 22nd Aug 17, 5:01 PM
    • #4
    • 22nd Aug 17, 5:01 PM
    Thanks for your comments.

    I have updated my letter, added a section about the invalid NTK (could someone check the dates in there, I think I worked them out correctly but would like it checked). I also added a section about the lack of mention of when parking starts.

    I have also added some more images, however, I haven't included these below, and I removed the close-up image I had included to show the wording/layout isn't as good as the sample provided. (Letter in next post as it was too long for this one).
    • askgar
    • By askgar 22nd Aug 17, 5:02 PM
    • 26 Posts
    • 13 Thanks
    askgar
    • #5
    • 22nd Aug 17, 5:02 PM
    • #5
    • 22nd Aug 17, 5:02 PM
    And here is my updated letter.

    I am the registered keeper and I am appealing this parking charge from Premier Park Limited at Hathaway Retail Park Car Park.

    To protect the driver, they have not been named.

    My appeal as the registered keeper is as follows:

    1. Notice to keeper not delivered in compliance with the requirements of POFA.
    2. No evidence of Landowner Authority
    3. No keeper liability
    4. Inadequate signage

    1. Notice to keeper not delivered in compliance with the requirements of POFA

    In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a notice to keeper in full compliance with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why Premier did not comply.

    Non-compliance with Paragraph 9 (2) (e)

    This Paragraph requires that the notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper:

    (i) to pay the unpaid parking charges; or
    (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

    Premier’s notice to keeper does not state that the creditor does not know both the name of the driver and a current address for service for the driver.

    Non-compliance with Paragraph 9 (2) (f)

    This Paragraph requires that the notice must warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given:

    (i) the amount of the unpaid parking charges (as specified under paragraph © or (d)) has not been paid in full, and
    (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid

    • The notice to keeper is dated Thursday 22nd June 2017.

    • Paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted.

    • If the notice to keeper had been posted on Thursday 22nd June 2017 (which Premier has not proven) it would be deemed to have been given on Monday 26th June 2017.

    • The period of 28 days beginning with the day after that on which the notice to keeper is given would therefore cover the period from Tuesday 27th June – Monday 24th July 2017 inclusive.

    • According to Paragraph 8 (2) (f), Tuesday 25th July 2017 would be the first day after this period of 28 days i.e. the first day that the right to recover payment from the keeper existed.

    The PCN issued states “if within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

    This is not consistent with the requirements of Paragraph 8 (2) (f) of Schedule 4 of POFA as demonstrated below:

    • The notice to keeper is dated Thursday 22nd June 2017.

    • Even if it is assumed that the notice was posted on Thursday 22nd June 2017 and even if the date of posting is not counted, this 29 day period referred to in Premier’s notice to keeper would cover the period from Friday 23rd June – Friday 21st July 2017 inclusive.

    • According to Premier, Saturday 22nd July 2017 would be the first day when it would have the the right to recover payment from the keeper

    Thus Premier is seeking to claim keeper liability three days too soon.

    I draw POPLA’s attention to the reverse of the notice to keeper in which Premier states that if you would like us to review this Parking Charge within 29 days of receiving this letter please either.....

    With regard to establishing keeper liability, if Premier had intended to claim that it had the right to recover unpaid parking charges from the keeper if payment had not been made or the driver’s details not been provided within 29 days of receiving this letter, the notice to keeper would have explicitly said so. However, the notice to keeper did not and POPLA has no right to interpret Premier’s statement "if within 29 days" as meaning that this must apply from the date of service rather than the date of posting.

    Non-compliance with Paragraph 9 (2) (i)

    This Paragraph requires that the notice must specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

    Premier’s notice to keeper merely states a “Date” of 11th July 2017 which may or may not have been the date that the notice was actually sent or given. Therefore the notice to keeper fails to specify the date on which it was sent or given.

    As a consequence of its failure to comply with POFA, Premier has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA must determine that Premier’s claim is invalid.

    Should Premier try to suggest that there is any other method whereby a vehicle’s keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

    https: //popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

    I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.......
    .......... However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver”.

    2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the 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 CoP) 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 this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    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

    3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.’'

    4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which 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 for this notorious industry. The Supreme Court were keen to point out 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 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:


    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' 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.





    As you can see from the images above, taken from the driver’s perspective inside the carpark, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

    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 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This 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 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) 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 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    Specifically missing from the signs (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the site boundary. It is not stated that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

    In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. 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.'

    The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

    Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR 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':

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

    Misleading omissions: 6.—(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.''

    So, for this appeal, I put this operator 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's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
    • Coupon-mad
    • By Coupon-mad 22nd Aug 17, 11:21 PM
    • 51,470 Posts
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    Coupon-mad
    • #6
    • 22nd Aug 17, 11:21 PM
    • #6
    • 22nd Aug 17, 11:21 PM
    Have you exhausted the landowner/site agent complaint first? Always do that before POPLA.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • askgar
    • By askgar 23rd Aug 17, 9:17 AM
    • 26 Posts
    • 13 Thanks
    askgar
    • #7
    • 23rd Aug 17, 9:17 AM
    • #7
    • 23rd Aug 17, 9:17 AM
    Have you exhausted the landowner/site agent complaint first? Always do that before POPLA.
    Originally posted by Coupon-mad
    I have sent messages to the landowners and shops, but not had much luck (most of the shops just say nothing they can do as the parking is sorted by the retail park, not the shops), unfortunately, I've been away most of the summer so had little time to actually sort the appeal and it's now due on Friday so need to get this prepared.

    Just done some additional research and found a named person to email from the site agents, I'm hoping that might have better luck than the email to an office instead.
    Last edited by askgar; 23-08-2017 at 9:32 AM.
    • askgar
    • By askgar 23rd Aug 17, 9:28 AM
    • 26 Posts
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    askgar
    • #8
    • 23rd Aug 17, 9:28 AM
    • #8
    • 23rd Aug 17, 9:28 AM
    The actual overstay was just over 20 minutes, is it worth me putting anything about grace periods in the letter? Saying it was busy, hard to park and leave that day, etc.
    • Umkomaas
    • By Umkomaas 23rd Aug 17, 9:39 AM
    • 15,432 Posts
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    Umkomaas
    • #9
    • 23rd Aug 17, 9:39 AM
    • #9
    • 23rd Aug 17, 9:39 AM
    If Friday is your POPLA deadline, you need to concentrate on that now. You can certainly build Grace Periods into your POPLA appeal on the basis you've highlighted above.

    Remember there are two Grace Periods, one at entry to the site and one when leaving the site. Check the BPA Code of Practice for what it says about GPs, also look at previous (recent) POPLA appeals and use them as an example to build on where they argue the two GPs.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • askgar
    • By askgar 23rd Aug 17, 10:52 AM
    • 26 Posts
    • 13 Thanks
    askgar
    Most of the grace period examples I found mentioned machines and purchasing tickets, so I adapted one. Can you check the new beginning to the letter, please? (I have stuck the grace periods section as 1 and bumped everything down, would I be better rearranging them a bit?).

    I am the registered keeper and I am appealing this parking charge from Premier Park Limited at Hathaway Retail Park Car Park.

    To protect the driver, they have not been named.

    My appeal as the registered keeper is as follows:

    The two BPA 'Observation' and 'Grace' Periods either side of paid-for time were not properly applied.
    Notice to keeper not delivered in compliance with the requirements of POFA.
    No evidence of Landowner Authority
    No keeper liability
    Inadequate signage

    1) The two BPA 'Observation' and 'Grace' Periods either side of paid-for time were not properly applied.

    The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

    The CoP states (my bold):

    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the END of the parking period should be a MINIMUM of 10 minutes.

    For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

    Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

    http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

    Good car parking practice includes ‘grace’ periods

    “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

    “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

    The observation period (at the start)
    The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors.

    On the day in question Hathway Retail Park was exceptionally busy, likely due to a family fun day at the local park.

    http://www.neeld.co.uk/family-fun-day-2017/

    Given the nature of the day, it is not unreasonable for finding a space to take an extended period of time, due to a large number of families traversing the car park, and the large number of cars blocking the car park waiting for spaces.

    How would it occur to any reasonable person to account for the time taken to get into the busy car park when ensuring they were back at their car within the maximum parking period?

    The grace period (at the end)
    The BPA CoP allows a MINIMUM of ten minutes just to leave, the car park, given the day in question mentioned above, leaving the car park took just as long as entering the car park, and as such it is not unreasonable to expect at least ten minutes was taken, simply getting to the exit of the car park and avoiding both families and other cars.

    The ANPR photos on the PCN show an arrival time of 13.06 and a departure time of 16.28. Taking both BPA 'Observation' and 'Grace' Periods into account and considering the location of the car park, and the local event on the day in question, I contend that the PCN was not properly given.
    • Umkomaas
    • By Umkomaas 23rd Aug 17, 11:22 AM
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    Umkomaas
    Your GP section above is ok, but can you sharpen up the reasons for the delays? In my view they're a bit 'woolly' - almost 'well this fun day was going on nearby, so that might have contributed ........ ' if you get my drift. You're not far away, but just tighten it.

    Leave out the 'paid-for-time'; I'd change that to 'actual parking time'.

    Looking back at your other appeal points. 'No Keeper Liability' appears to be your strongest, but in all honesty, I think it's too rambling and becoming overly complicated, with quotes from here, there and everywhere. Again sharpen it with the critical points, not confuse it with hypotheses. I gave up reading it just over half way through. Sorry!

    If this is your strongest point, then leave that as the first appeal point - saves the assessor having to go any further.

    I'd follow it with landowner authority as lots of PPCs either don't have the paperwork to prove it, or are pretty 'shy' at letting you and POPLA view it. Many fail on this. In my view it's open to less subjectivity and interpretation by the assessor than Grace Periods.

    GPs can come next, followed by the remainder.

    Save the document as a .pdf file and attach it to the POPLA appeal portal. Put some reference to the attachment in the portal dialogue box like 'Please find attached POPLA appeal for POPLA verification code xxxxx'. In the 'Reasons for Appeal' dropdown box, select 'OTHER'.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • askgar
    • By askgar 23rd Aug 17, 11:43 AM
    • 26 Posts
    • 13 Thanks
    askgar
    Your GP section above is ok, but can you sharpen up the reasons for the delays? In my view they're a bit 'woolly' - almost 'well this fun day was going on nearby, so that might have contributed ........ ' if you get my drift. You're not far away, but just tighten it.
    Originally posted by Umkomaas
    I'll look at that and make it more it did rather than it could.

    Leave out the 'paid-for-time'; I'd change that to 'actual parking time'.
    Originally posted by Umkomaas
    Whoops, cleared a lot of references to paid for time out but missed the obvious ones.

    Looking back at your other appeal points. 'No Keeper Liability' appears to be your strongest, but in all honesty, I think it's too rambling and becoming overly complicated, with quotes from here, there and everywhere. Again sharpen it with the critical points, not confuse it with hypotheses. I gave up reading it just over half way through. Sorry!
    Originally posted by Umkomaas
    I took the No Keeper Liability section from the Pepipoo forum post linked above, I'll see how much I can trim from it to make it clearer.

    If this is your strongest point, then leave that as the first appeal point - saves the assessor having to go any further.

    I'd follow it with landowner authority as lots of PPCs either don't have the paperwork to prove it, or are pretty 'shy' at letting you and POPLA view it. Many fail on this. In my view it's open to less subjectivity and interpretation by the assessor than Grace Periods.

    GPs can come next, followed by the remainder.

    Save the document as a .pdf file and attach it to the POPLA appeal portal. Put some reference to the attachment in the portal dialogue box like 'Please find attached POPLA appeal for POPLA verification code xxxxx'. In the 'Reasons for Appeal' dropdown box, select 'OTHER'.
    Originally posted by Umkomaas
    Thanks for the advice on the order, I'll get that done as well. I'll get a new version up a little later.
    • Umkomaas
    • By Umkomaas 23rd Aug 17, 11:55 AM
    • 15,432 Posts
    • 24,135 Thanks
    Umkomaas
    I took the No Keeper Liability section from the Pepipoo forum post linked above, I'll see how much I can trim from it to make it clearer.
    If that point with all its verbiage has previously been successful at POPLA, then do use it.

    You might guess that I'm more in favour of sharp, to the point statements. The number of these War and Peace appeals we are asked to go through can really turn my brain to mush. There's thousands of them over the space of a year, and the regulars are at this every day.

    Yours was not one of the longer ones. Just a few weeks ago there was one POPLA appeal that was 41,000 words (yep, forty one thousand) long. The will to live fades rapidly!
    Last edited by Umkomaas; 23-08-2017 at 12:22 PM. Reason: Predictive text gremlins.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • askgar
    • By askgar 23rd Aug 17, 12:17 PM
    • 26 Posts
    • 13 Thanks
    askgar
    If that point with all its verbiage has previously been successful at POPLA, then do use it.

    You might get guess that I'm more in favour of sharp, to the point statements. The number of these War and Peace appeals we are asked to go through can really turn my brain to mush. There's thousands of them over the space of a year, and the regulars are at this every day.

    Yours was not one of the longer ones. Just a few weeks ago there was one POPLA appeal that was 41,000 (yep, forty one thousand) long. The will to live fades rapidly!
    Originally posted by Umkomaas
    It looks like the Pepipoo template was only written in the last week or so, so unlikely to have ever been used successfully. I'll take a look and see what I can do to it.
    • askgar
    • By askgar 23rd Aug 17, 2:51 PM
    • 26 Posts
    • 13 Thanks
    askgar
    Updated Ordering

    I am the registered keeper and I am appealing this parking charge from Premier Park Limited at Hathaway Retail Park Car Park.

    To protect the driver, they have not been named.

    My appeal as the registered keeper is as follows:

    1) Notice to keeper not delivered in compliance with the requirements of POFA.
    2) No evidence of Landowner Authority
    3) The two BPA 'Observation' and 'Grace' Periods either side of actual parking time were not properly applied.
    4) No keeper liability
    5) Inadequate signage
    Updated NTK Section (now section 1). I trimmed out a little bit at the end as I felt including a selective quote from a document wasn't actually that useful and just cluttered the argument.

    1. Notice to keeper not delivered in compliance with the requirements of POFA

    In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a notice to keeper in full compliance with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why Premier did not comply.

    Non-compliance with Paragraph 9 (2) (e)

    This Paragraph requires that the notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper:

    (i) to pay the unpaid parking charges; or
    (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

    Premier’s notice to keeper does not state that the creditor does not know both the name of the driver and a current address for service for the driver.

    Non-compliance with Paragraph 9 (2) (f)

    This Paragraph requires that the notice must warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given:

    (i) the amount of the unpaid parking charges (as specified under paragraph © or (d)) has not been paid in full, and
    (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid

    • The notice to keeper is dated Thursday 22nd June 2017.

    • Paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted.

    • If the notice to keeper had been posted on Thursday 22nd June 2017 (which Premier has not proven) it would be deemed to have been given on Monday 26th June 2017.

    • The period of 28 days beginning with the day after that on which the notice to keeper is given would therefore cover the period from Tuesday 27th June – Monday 24th July 2017 inclusive.

    • According to Paragraph 8 (2) (f), Tuesday 25th July 2017 would be the first day after this period of 28 days i.e. the first day that the right to recover payment from the keeper existed.

    The PCN issued states “if within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

    This is not consistent with the requirements of Paragraph 8 (2) (f) of Schedule 4 of POFA as demonstrated below:

    • The notice to keeper is dated Thursday 22nd June 2017.

    • Even if it is assumed that the notice was posted on Thursday 22nd June 2017 and even if the date of posting is not counted, this 29 day period referred to in Premier’s notice to keeper would cover the period from Friday 23rd June – Friday 21st July 2017 inclusive.

    • According to Premier, Saturday 22nd July 2017 would be the first day when it would have the the right to recover payment from the keeper

    Thus Premier is seeking to claim keeper liability three days too soon.

    I draw POPLA’s attention to the reverse of the notice to keeper in which Premier states that if you would like us to review this Parking Charge within 29 days of receiving this letter please either.....

    With regard to establishing keeper liability, if Premier had intended to claim that it had the right to recover unpaid parking charges from the keeper if payment had not been made or the driver’s details not been provided within 29 days of receiving this letter, the notice to keeper would have explicitly said so. However, the notice to keeper did not and POPLA has no right to interpret Premier’s statement "if within 29 days" as meaning that this must apply from the date of service rather than the date of posting.

    Non-compliance with Paragraph 9 (2) (i)

    This Paragraph requires that the notice must specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

    Premier’s notice to keeper merely states a “Date” of 11th July 2017 which may or may not have been the date that the notice was actually sent or given. Therefore the notice to keeper fails to specify the date on which it was sent or given.

    As a consequence of its failure to comply with POFA, Premier has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA must determine that Premier’s claim is invalid.

    Should Premier try to suggest that there is any other method whereby a vehicle’s keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

    https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2
    Updated GP section, I've removed references to paid for parking, and changed things to sharpen up the reasons (e.g. it was busy because...)

    3) The two BPA 'Observation' and 'Grace' Periods either side of actual parking time were not properly applied.

    The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

    The CoP states (my bold):

    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the END of the parking period should be a MINIMUM of 10 minutes.

    For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any signs to read & observe the signage terms, before staying.

    Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

    http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

    Good car parking practice includes ‘grace’ periods

    “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

    “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

    The observation period (at the start)
    The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors.

    On the day in question Hathaway Retail Park was exceptionally busy, due to a family fun day at the local park with no public parking of its own, on a day with exceptionally good weather.

    http://www.neeld.co.uk/family-fun-day-2017/

    Given the nature of the day, finding a space would have taken an extended period of time, due to the large number of families with young children traversing the car park, and the large number of cars blocking the car park waiting for spaces.

    How would it occur to any reasonable person to account for the time taken to get into the busy car park when ensuring they were back at their car within the maximum parking period?

    The grace period (at the end)
    The BPA CoP allows a MINIMUM of ten minutes just to leave, the car park, given the day in question mentioned above, leaving the car park would have taken just as long as entering the car park, and as such it is not unreasonable to expect that more than ten minutes were taken, simply getting to the exit of the car park and having to wait for both families and other cars to clear the road.

    The ANPR photos on the PCN show an arrival time of 13.06 and a departure time of 16.28. Taking both BPA 'Observation' and 'Grace' Periods into account and considering the location of the car park, and the exceptional volume of people and cars in the car park due to the event on the day in question, I contend that the PCN was not properly given.
    • Umkomaas
    • By Umkomaas 23rd Aug 17, 6:27 PM
    • 15,432 Posts
    • 24,135 Thanks
    Umkomaas
    Look fine to me now.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • askgar
    • By askgar 24th Aug 17, 2:21 PM
    • 26 Posts
    • 13 Thanks
    askgar
    The appeal is in, I will update this thread with progress.
    • askgar
    • By askgar 31st Aug 17, 4:59 PM
    • 26 Posts
    • 13 Thanks
    askgar
    I have sent messages to the landowners and shops, but not had much luck (most of the shops just say nothing they can do as the parking is sorted by the retail park, not the shops), unfortunately, I've been away most of the summer so had little time to actually sort the appeal and it's now due on Friday so need to get this prepared.

    Just done some additional research and found a named person to email from the site agents, I'm hoping that might have better luck than the email to an office instead.
    Originally posted by askgar
    Well, I definitely wish I'd taken that route earlier...

    Dear X,

    Y has passed your email to me for attention.

    We have been in touch with Premier Park Ltd and can confirm that this PCN has now been cancelled.

    Please accept our apologies for the inconvenience caused.

    With kind regards

    Z
    I guess I should expect them to just cancel the POPLA appeal or something now, obviously, I'll keep an eye out and make sure it actually does happen.
    • askgar
    • By askgar 1st Sep 17, 3:53 PM
    • 26 Posts
    • 13 Thanks
    askgar
    Does this sound right?

    X,

    Premier Park have contacted us this morning to say that they have tried to cancel the PCN but because you have notified POPLA they are unable to until you withdraw your complaint.

    Please can you let me know when you have done this and I will advise Premier Park that they can try again?

    Thanks and regards

    Z
    That sounds like rubbish to me, I've said I'm happy to do this, but I'd like direct confirmation from Premier Park that they will cancel the ticket before I go ahead because I know that if I just withdraw my complaint from POPLA and they don't cancel the PCN I'll end up having to fight a battle I would rather avoid.
    • Silverscreen
    • By Silverscreen 9th Sep 17, 10:29 PM
    • 42 Posts
    • 13 Thanks
    Silverscreen
    Well, I definitely wish I'd taken that route earlier...



    I guess I should expect them to just cancel the POPLA appeal or something now, obviously, I'll keep an eye out and make sure it actually does happen.
    Originally posted by askgar
    Hi,

    Can I just ask what reason did you give the the landowner for the ticket to be cancelled? I'm in a similar situation and your thread is very helpful to me but i have a few days before the POPLA code expires and would like to try and get it cancelled if I can instead of going to POPLA.
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