any help gratefully received for a PCN by Premier Park Exeter

technicaltaff

Hi

I'm new to all this so apologies if do not use the correct etiquette.

I received a PCN from Premier Park in Exeter for parking for 1 hour in a 30 minute limit free car park in a Devon Town (I don't want to give exact details in the open forum) They photographed my car on the way in and out of the car park. I wrote to them saying I had made a genuine mistake, was a law abiding citizen and that the charges were disproportionate using unfair terms in Consumer Contract Regulations as per another thread, but unsurprisingly have had a letter back today saying appeal denied, and giving me a POPLA verification code to appeal it.

I was wondering if anyone can help me put a letter together for a POPLA appeal as I've got not intention of paying this.

I tried talking to the shop owner who's land it is but they say all matters of parking have been put in the hands of Premier Park. Also there are private parking bays in this car park, one signposted as belonging to a local school.

technicaltaff

OK I've actually put together a POPLA letter because in my newbie naivety asking someone to do that for me is probably unreasonable and that wasn't really what I was asking.

I say this because I notice that all the other posts pre and post mine have had replies and my post has not! I can assure you I am genuine and would happily private message the experts with copies of my letters premier park have sent me if you think this is a scam.

I've copy and pasted/ adapted from several of the examples on here and I've read the Newbie sticky that coupon mad put together.
Am I on the right lines with this letter.


Dear POPLA,

APPEAL RE: Premier Park PCN number xxxxxxxxxx POPLA code xxxxxxxxxxxxxx
xxxxxxxxxxxxxx Car Park xxxxxxxxxxxx, VEHICLE REG: xxxxxxxxxxxxxxxx

On the xxxxxxxxxxxxxxxxxxx Premier Park issued a parking charge notice of £100 because vehicle xxxxxx was allegedly recorded on the automatic number plate recognition system as having stayed at the xxxxxxxxxx car park in xxxxxxx for xxxxxxxxxxxxxxx. This appeal is on the grounds that I as the registered keeper am not liable for the parking charge, the vehicle was not improperly parked and the 'parking charge' exceeds the appropriate amount.

Premier Park is requiring payment from me as the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. I say they have not met all the conditions imposed by this Act and so there is no obligation or liability on me at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice.


1. NO EVIDENCE OF PARKING TIME, DETAILS OF DRIVER OR SUFFICIENT DETAIL OF CONTRAVENTION

The Operator is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in. They also do not show who the driver was. As this alleged contravention took place several weeks ago and both myself and my wife were in the vehicle at the time I cannot say with any degree of certainty which of us was driving the car at the time.

As this car park is free for xxxxxxxxxxxxxxx customers for 30 minutes it is incumbent on the driver to take exact note of when the parking time begins and ends and not exceed those times. This is unrealistic and does not form the basis for a contract between Premier Park and the driver.

2. ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE

Premier Park have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). I need POPLA to consider whether the Operator has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.

3.CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS

Premier Park have also not provided me with any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

There are several private parking spaces in the car park, (photographic evidence attached) one of which is designated to xxxxxxxx, several of which are reserved parking for xxxxxxxxxxxxxx From the photographic evidence alone Premier Park cannot say for sure that the vehicle in question was not parked in one of these parking spaces and I fail to see how they have jurisdiction over these parking bays.

Premier Park must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists. In POPLA case reference 1771073004 POPLA ruled that a witness statement was not valid. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement regarding contract documents between the operator and the landowner the alleged contract is a document which the operator could produce (if it exists). If the operator does not produce the actual contract but tries to rely on a witness statement then POPLA should be consistent and rule any such statement invalid). Specifically, to comply with the Code of Practice, the contract needs to specifically grant Premier Park the right to pursue parking charges in the courts in their own name, as creditor.

4. UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS

I believe the signs and any core parking terms Premier Park are relying upon were unclear in all respects. This Operator needs to show POPLA their evidence and signage map/photos specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the walls of buildings do not alter the contract which must be shown in full at the entrance.
There are no clear signs on entry to this car park which would have communicated the terms & conditions of parking there to a seated driver in moving traffic. This is a breach of the BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead''. The sign is in fact on a gate which has to remain open to give access to vehicles entering the car park and therefore is at right angles to drivers entering the car park.

In a telephone conversation to try to resolve the matter with the Manager of the xxxxxxxx, the manager stated that Premier Park had had to move signs within the car park because they were placed on the wall of a listed building, at the insistence of the xxxxxxxxxxxxx, so the signage is obviously not in their preferred location and is therefore compromised.

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

Premier Park has a duty to make the terms so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. To suggest a breach of contract, Premier Park also needs to show that the driver actually saw, read and accepted the terms. No driver would knowingly accept these terms to pay this charge. The truth is that the driver did not see, understand nor accept the alleged terms. Premier Park may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract.

Premier Park needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply complying with the Parking for Spar and Post Office customers Only. Maximum stay 30 minutes. No return within 1 Hour

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

6. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

In a second letter from Premier Park dated xxxxxxxxxxxxxx they claim that the vehicle was parked without complying to the conditions of the contract therefore they are clearly attempting to enforce this charge by claiming a breach of contract under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this particular 'contravention'. Operators cannot lawfully include their operational day-to-day running costs such as staff, signs, cameras, uniforms etc in any 'loss' claimed. It was found in the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) that general business costs cannot constitute a loss.

In Parking Eye v Smith (Manchester County Court December 2011) the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. As this car park does not charge a fee, but offers free parking for customers then how can a fee of £100 be charged for overstaying for xxxxxxxxxxxxxxxx.

7. UNFAIR TERMS AND AN UNENFORCEABLE PENALTY
I feel this charge is punitive and unfair, contravening the Unfair Contract Terms Act 1997. Furthermore, I believe Premier Park is in breach of the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2(1)(e) states: ‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’.


Also, Regulation 5 states:
(1) ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

Private parking tickets unrelated to any genuine loss are unenforceable penalties. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''



CONCLUSION

In considering the evidence in my appeal, I believe POPLA should order that this unjustified charge is cancelled.


Yours faithfully,

Coupon-mad

Nice research, it should be another winner IMHO, as long as the PCN and the signage says that a PCN is for 'breach' or failure to comply' with terms. Check the PCN - does it say the driver 'failed to comply' or 'breached' the rules? If so then your wording is suitable and should win. Most PPCs fall into that bracket but I wanted to check.

The only thing I would change if not yet submitted (online please due to postal delays!) would be to put the 'no genuine pre-estimate of loss' as point #1 - because that will be the one which wins at POPLA, IF the PCN and signage is alleging a breach.

And the only other thing would be to advise you to read the 'Successful Complaints about PPCs' and get back into that Retail park and complain to the Store Manager(s) and/or Centre Manager again. You don't have to 'apologise for a mistake' if you were shopping at their shop! Read the linked successes in that sticky thread, take confidence from them and complain. It may need an email or phone call to the retail park (Google the name of the place and dig for contact details of the managing agents who run it). I see you have phoned up a Manager but have you followed it up as a complaint in writing?

technicaltaff

thanks for getting back to me coupon mad
neither breach nor failure to comply are specifically used so perhaps I need to change the wording.

they say this in the 2nd letter "as the vehicle was parked without complying to the conditions of the contract for parking in this car park, the driver of the vehicle agreed to pay a parking charge of £100.00. It cannot after the event be renegotiated."


the sign says :-

PARKING FOR ****** CUSTOMERS ONLY. MAX STAY 30 MINS. NO RETURN WITHIN 1 HOUR.

If you enter or park on this land contravening the above terms & conditions you are agreeing to pay PARKING CHARGE NOTICE £100 / NOTICE TO OWNER £100


I've just seen Mouche's brilliant sample letter on another thread, and his situation is similar to mine in that the car park doesn't charge so I might plagiarise some of his, if he doesn't mind.

I haven't written to the shop but have been in twice and phoned but they keep saying it's nothing to do with us - Premier Park control the car park and charges.

Stroma

So it's a breach of rules so therefore it must be a genuine pre-estimate of loss. You will win on the above

technicaltaff

thanks for all your advise on this. I'm now feeling very confident whereas I was quite worried about the whole thing. I've also been looking at the brilliant stuff on PEPIPOO fightback forums.

Coupon-mad

'parked without complying' = 'failure to comply'

and

'contravening the above terms & conditions' = 'breaching the t&cs'

which is EXACTLY what you wanted to see! Be confident of a win sometime in February.

Pepipoo is indeed a fantastic forum too.

bod1467

The only other suggestion is to have a bullet list of appeal points clearly defined at the top of the appeal (using your current appeal headers), then your appeal as it is now.

(The bullet list makes it easier for the POPLA assessor to see the silver bullets of No Authority and No GPEoL [your points 3 and 6] and give you an easy win).

technicaltaff

I've re written the letter having taken the advise given. Thanks to all. If a couple of "experts" could cast their eye over it, if good to go, then it will be emailed to POPLA post haste!



Dear POPLA,

APPEAL RE: Premier Park PCN number xxxxxxx POPLA code xxxxxxx
xxxxxxx Car Park xxxxxxx, VEHICLE REG: xxxxxxx

On the xxxxxxxxxxxxxxxxxx Premier Park issued a parking charge notice of £100 because vehicle xxxxxxxxxxx was allegedly recorded on the automatic number plate recognition system as having stayed at the xxxxxxxxxxxx car park in xxxxxxxxxxx for xxxxxxxxxxxxx. This appeal is on the grounds that I am not liable for the parking charge, the vehicle was not improperly parked and the 'parking charge' exceeds the appropriate amount.

Premier Park is requiring payment from me as the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. I say they have not met all the conditions imposed by this Act and so there is no obligation or liability on me at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice.

I dispute the PCN on the following points and will expand on each one in turn:-

1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
2. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
3. NO EVIDENCE OF DETAILS OF DRIVER
4. BREACH OF ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
5. UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS. CONFLICTING SIGNS FROM DIFFERENT ORGANISATIONS.
6. UNFAIR TERMS AND AN UNENFORCEABLE PENALTY


1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
The car park is free to use and there is no provision for purchasing a ticket. Therefore the charge is a penalty and not a genuine pre-estimate of loss'. The £60, £100, £150 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked.
For this charge to be justified a full breakdown of the costs Premier Park has suffered as a result of the car being parked at the car park is required and should add up to £60/£100/£150. 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 at that car park.

Premier Park have provided no evidence of how the amount of PCN can change dependent on how soon it is paid? The very fact that Premier Park try to incentivise drivers to pay early and pay less shows that these are bogus penalties.

This charge from Premier Park as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. In this case it is a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

Premier Park and POPLA will be familiar with several well-known cases on whether a sum is a genuine pre-estimate of loss or a penalty:
• Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. In the speech by Lord Dunedin he concluded, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

• In the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) it was deemed that general business costs cannot constitute a loss.

• In a recent decision about ParkingEye in a car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS

Premier Park have not provided me with any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

Premier Park must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists. In POPLA case reference 1771073004 POPLA ruled that a witness statement was not valid. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement regarding contract documents between the operator and the landowner the alleged contract is a document which the operator could produce (if it exists). If the operator does not produce the actual contract but tries to rely on a witness statement then POPLA should be consistent and rule any such statement invalid). Specifically, to comply with the Code of Practice, the contract needs to specifically grant Premier Park the right to pursue parking charges in the courts in their own name, as creditor.

3. NO EVIDENCE OF DETAILS OF DRIVER

The Operator is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in. They also do not show who the driver was. As this alleged contravention took place several weeks ago and both named drivers on the vehicles insurance policy were in the vehicle at the time it cannot be determined with any degree of certainty who was actually driving the car at the time.

4. BREACH OF ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Premier Park have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that Premier Park present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require Premier Park to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Premier Park to strict proof to the contrary.


5. UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS. CONFLICTING SIGNS FROM DIFFERENT ORGANISATIONS.

I believe the signs and any core parking terms Premier Park are relying upon were unclear in many respects. This Operator needs to show POPLA their evidence and signage map/photos specifically showing the position of the signs at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on tablets within the car park area must be shown in full at the entrance.

There are no clear signs on entry to this car park which would have communicated the terms & conditions of parking there to a seated driver in moving traffic. This is a breach of the BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead''. The sign is in fact on a gate which has to remain open to allow access to vehicles and therefore is at right angles to drivers entering the car park. See photographic evidence picture 1. In addition it does not contain the full terms and conditions of the parking requirements.

In a telephone conversation with the Manager of the xxxxxxxxxxx xxx, she admitted that Premier Park have had to move signs within the car park because they were placed on the wall of a listed building. They were told to remove and reposition their signage, therefore it is obviously not in Premier Park’s preferred location and is therefore compromised.

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

Premier Park has a duty to make the terms so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. To suggest a breach of contract, Premier Park also needs to show that the driver actually saw, read and accepted the terms. No driver would knowingly accept these terms to pay this charge. The truth is that the driver did not see, understand nor accept the alleged terms. Premier Park may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract.

Premier Park needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply complying with the 30 minute free parking for Spar and Post Office customers, or choosing to park in the Bedford Square car park at a cost of 60 pence for an hour some 50 metres away!


In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

Premier Park does not provide signage in a suitable position to be read from the vehicle at the entrance. Clear signs are needed and means for a driver to read the full terms and decide whether to continue with parking in this location before they enter the car park.

In addition there appear to be several private parking spaces in the car park, one of which is designated to xxxxxxxxxxxxxxxxx, several of which are reserved parking for xxxxxxxxxxxxxx From the photographic evidence alone Premier Park cannot say for sure that the vehicle was not parked in one of these aforementioned parking spaces and there seems to be conflicting information about which parking spaces exactly Premier Park have jurisdiction over. See photographic evidence pictures 2 & 3. At no point have Premier Park tried to ascertain whether the driver was visiting one of the xxxxxxx and therefore entitled to park in the reserved space or whether the driver was or is xxxxxxxxxxxxxxxxx. If these signs are historical and no longer applicable then they need to be removed immediately to clear up any confusion.


6. UNFAIR TERMS AND AN UNENFORCEABLE PENALTY
I feel this charge is punitive and unfair, contravening the Unfair Contract Terms Act 1997. Furthermore, I believe Premier Park is in breach of the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2(1)(e) states: ‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’.


Also, Regulation 5 states:
(1) ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

Private parking tickets unrelated to any genuine loss are unenforceable penalties. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also O B Services v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

CONCLUSION

In considering the evidence in my appeal, I believe POPLA should order that this unjustified charge is cancelled.


Yours faithfully,

Coupon-mad

Looks good to go - submit it online to POPLA and you may have to use a different browser to make it work.

Guys_Dad

I don't think you have mentioned that operational costs such as signage,uniforms,salaries,office costs are operating costs of providing the management of the car park and are not affected by your supposed contravention.

There is a danger in a kitchen sink of an appeal such as yours that the main point can be missed in all the padding, so spell it out to help the adjudicator.