Newbie going to have fun with a Park Premier PCN

beamerguy

soton_25 wrote: »

So ... interesting, I called out their possible "fraud" in my rebuttal to their evidence pack.... guess what?

They choose not to contest the appeal. Quelle surprise.

Does anyone else smell fish

Oh... AND THAT MEANS I WIN. Time to be smug and post on POPLA results thread

Well done, that is so funny, please post up what POPLA said and send to Mr Prankster as well

Also to J.K Rowling
"Harry Potter and the fraudulent parking operatives"

soton_25

This was my appeal - bit old style as first submitted way way back pre-Beavis in 2015

This document reflects the latest version of my appeal to POPLA (Ombudsmen Services) in reply their letter to me dated August 2016

As the registered keeper of the vehicle, registration number [not telling], I wish to appeal against the parking charge issued by Premier Park

My appeal is based on the following grounds.

A. Notice to Keeper not properly given under POFA 2012 – no keeper liability. Specifically, but not exclusively, I contend a prima facie ground for appeal exists. No NTD was served and the NTK was outside of the statutory timings required (A.3 in bold below)

B. No breach of contract and no genuine pre-estimate of loss. The circumstances are significantly different to Parking Eye vs Beavis and the judgement of the Supreme Court cannot be relied upon as binding in this case.

C. Contract with the landowner – no locus standi. The contract provided as evidence is deficient.

D. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.

E. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:

A. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
The Notice I have received dated 17 February 2015, as the registered owner of the vehicle, makes it clear that Premier Park is relying on Schedule 4 of the Protection of Freedoms Act 2012. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. Premier Park has failed to establish keeper liability. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'
Specifically, no notice to driver was issued, therefore paragraph 9 of Schedule 4 applies to the Notice sent 17 February 2015.
1. Neither the relevant land or the period of parking is specified as required by Paragraph 9(2)(a)
2. Premier Park have failed to identify the ‘Creditor’. This may, in law, be Premier Park or their client, their debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is.....”. The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted.
3. Premier Park have failed to deliver the Notice within relevant period as specified by Paragraph 9(5). If Premier Park rely of the provisions Paragraph 8(5) in their evidence submission to claim , I put them to strict proof to prove that a Notice to Driver was issued. As Registered Keeper, I state that no such notice was provided and as the location is an ANPR managed site no NTD could have been issued.

B. No breach of contract and no genuine pre-estimate of loss
Premier Park are asserting that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms. This case is distinctly different from Parking Eye vs Beavis and as such I contend that the judgement of the Supreme Court does not set a precedent that can be relied on by the operator or POPLA.

I require Premier Park to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Premier Park cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to Premier Park nor the landowner. Additionally there is no loss to Premier Park nor the landowner when the parking is not full, as was the case during the disputed ‘contravention’. The Office of Fair Trading has stated 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.''


C. Contract with landowner - no locus standi
Premier Park do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Premier Park has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, POPLA should have sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

The contract provided to date is deficient and for all these stated reasons I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Premier Park and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de25e5c60b4d5cacfed6b40?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense' as described in that case, and is unenforceable.


D. Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.
I contend the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.


E. Unclear and non-compliant signage, forming no contract with drivers.
The road markings at the entrance to the car park are faded and ineffective. This can clearly be seen from the photographs provided as is confusing to drivers using the car park. I contend this contributed to the driver parking as he or she did.

Due to their position and the barely legible size of the smallprint, the wall mounted signs in this car park are very hard to read. Additionally the single sign at the entrance to the car park details parking restrictions and charges, whereas signs inside the car park refer to parking AND entry restrictions and charges. The operator should be clear which it is charging a fee for - entry or parking. Again this is a source of confusion for drivers and I contend this contributed to the driver parking as he or she did.
Additionally the ANPR evidence provided by Premier Park only proves entry and exit of the vehicle NOT the parking time. The timestamps could reasonably be understood to indicate that the driver entered and exited without parking and given the confusion of the signage this means the charge is unenforcable.
I contend that the roadmarkings, signs and any core parking terms that Premier Park are relying upon were inconsistent, too small and/or poorly maintained for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice.
I would contend that the signs both entrance, road and wall mounted (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent or lacking in confusion that they 'must' have been seen and understood by the driver - who would never have reasonably agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

soton_25

This was my rebuttal

Dear Sir/Madam,
Operator Evidence Pack Rebuttal
I have received the operator's evidence pack today 10 August 2016. I have a number of specific points of rebuttal.
1. The operator has included a PCN in the evidence pack (section C), inferring that a PCN was issued. As a statement of truth, as registered keeper I categorically deny receiving this PCN. I allege that this PCN is included in the evidence pack as a fabrication once they released the timings laid out in POFA 2012 were not complied with, as laid out in my first appeal to the operator. I also contend the PCN was never sent out and allege it is included in the evidence pack as a possible attempt to deceive the appeal. This is not unknown behaviour by operators supplying speculative timely "PCNs" to the evidence pack at a later date, as can be evidenced by multiple reports on parking forums such as https://www.moneysupermarket.com
The first communication received from the operator was the letter dated 17 Feb 2016 which I replied to on 3 March 2016 as registered keeper stating that "this is the first communication the vehicle's registered keeper has received" and that I was "treating this as an attempted Notice to Keeper". The operator never denied or challenged that this letter dated 17 Feb 2016 was the first communciation to the registered keeper. As such, is should be assumed that this was the notice to keeper. No driver liability has been admitted, as such the operator is relying on POFA2012 to persue the registered keepr.
Note also please that the "PCN" the operator has provided is not dated nor has any proof of postage. I contend that even if this "PCN" were reliable evidence, it gives no indication that POFA2012 timings have been complied with, I no inference could be drawn that they were. I believe the operator is hoping in this instance that the registered keeper is not sharp or knowledgable enough to contest this point.
2. The notice to keeper sent must to comply with section 9 of PoFA, 2012 that states that the creditor must ‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— . (i)the amount of the unpaid parking charges specified under paragraph (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 Parking Charge Notice (PCN) is not compliant with the requirements of PoFA set out above, in order to transfer liability to the keeper. No driver liability has been admitted.
3. Grace period. The PCN supplied in the evidence specifically states that the parking time was 20 minutes under the sub heading "duration". This is within the 20 minute grace time laid out in the "site agreement" (G) - sub section "Additional Information" towards the bottom of the page - that the operator has provided in the evidence pack. I contend that as the duration is within the contractual grace period there is no charge to pay. The site agreement superceeds any grace periods references elsewhere such as the CoP. The operator has not followed the agreement and therefore the charge is unenforceable.
4. The "site agreement" (G) is redacted. Providing only undecipherable signatures and no names does not allow either the registered keeper or the appeal to be sure that the document is indeed what it pupports to be. It is not possible to fact check that the signatures are of employees of either EasyGym or Permier Park authorised to sign such an agreement. I specifcally requested an unredacted copy of the agreement in my original appeal to POPLA London Councils to clarify exactly this issue of title or authority. The "contract" does not meet the requirement of the British Parking Association (BPA) Code of Practice section 7. I contend the appeal should consider the operator to be a mere parking agent, without authority to issue charges.
5. I contend that EasyGym is not the landowner of the car park and merely leases the same. As such there is no evidence that EasyGym is entitled to attempt to enter into an agreement with the Operator.
On this basis, and the evidence previously submitted, I request that you uphold the appeal.
Yours sincerely

Asterix

"Does anyone still smell fish"

The_Deep

Keep the fun coming. Twist the knife, send them an invoice for your wasted time. If they ignore it, send them another, if they ignore that send them an LBA.

Even if you have no intention of taking them to court it will cost them money.

Edna_Basher

Excellent - well done for seeing this out, soton_25.

It's a good thing that your case was taken away from Wright Hassall and assigned to the Ombudsman Service POPLA - otherwise who knows what the outcome would have been.....

beamerguy

The_Deep wrote: »

Keep the fun coming. Twist the knife, send them an invoice for your wasted time. If they ignore it, send them another, if they ignore that send them an LBA.

Even if you have no intention of taking them to court it will cost them money.

And this should be done to all the scammers who lose

1: INVOICE, SAME AMOUNT AS THEIR TICKET
(they will either ignore or reject it, just as they do ... IGNORE)

2: REMINDER OF OUTSTANDING INVOICE

3: LBA WARNING LETTER
(maybe or maybe not they will respond)

And in your mind ... only joking.

As Deep says ... costs them money just like you packaging up a brick and sending it FreePost

Fruitcake

Well done. I trust you cancelled your gym membership long ago. You can now leave negative feedback on social media about the gym showing your proof that they employ scammers who have thrown in the towel because they lied and got caught out.

soton_25

Brick sent.

Never was a member of the gym. Driver just picking up a parcel.

It is a scam that car park.

beamerguy

soton_25 wrote: »

Brick sent.

Never was a member of the gym. Driver just picking up a parcel.

It is a scam that car park.

You did the job, great stuff, look forward to you helping others if you have spare time

soton_25

Indeed. Have done a few times.
Thanks to everyone, Edna Clouds, Coupon-Nutter, Beamer, Far too Deep, Unknownmass etc