Premier Park PCN

Edna_Basher · 27 July 2015 at 10:45PM

Guys_Dad wrote: »

It also seems to me that this is not relevant land.

Agreed. This is another valid appeal point; POPLA will uphold a keeper's appeal if it is proven that the land is not relevant for the purpose of POFA 2012.

Premier Park were wrong to state on their NTK that they have the right to use POFA 2012 to claim keeper liability. It would seem that the keeper data obtained from the DVLA has been misused.

JRH999 · 28 July 2015 at 7:52AM

Thanks for all of the information and help. I can't see anything in the contract between premier and the council which is of much help (other than it seems that premier park get all revenue from the car park, so it seems pointless for the council to use them).

Here is what I now have, hopefully I have understood all of the points, again any feedback greatly appreciated:

As the keeper of my vehicle I received a PCN from Premier Park Ltd for my vehicle being parked at XXXXXXX Car Park, XXXXXXXX on the XXXXXX of XXXXX 2015, the PCN was issues on the XXXXX of XXXXXX 2015.

As the keeper, I wish to refute these charges on the following grounds:

1. The Operator’s Notice to Keeper (“NTK”) did not comply with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
2. A lack of Premier Park Ltd’s proprietary interest in the land and no contract with the landowner.
3. Land owner signage stating it is a ‘free’ car par park as has been the case for many years.
4. The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract.
5. Lack of planning permission for ANPR camera and signage
6. The land is not relevant for the purpose of POFA 2012
7. The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner.

1. In order to be able to be able to invoke keeper liability, the Operator’s NTK had to comply with the strict requirements of Schedule 4 of POFA. I set out below a non-exhaustive list of reasons why it failed to do so.

• Contrary to the requirement of Schedule 4, Paragraph 9 (2) (a), the NTK did not specify a period of parking to which the notice related. The NTK specified the date and times when the Operator’s ANPR equipment recorded the vehicle entering and leaving the site; however, these times do not equate to the actual period of parking

• Contrary to the requirement of Schedule 4, Paragraph 9 (2) (b), the NTK did not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full

• Contrary to the requirement of Schedule 4, Paragraph 9 (2) (e), the NTK did not contain a statement that the creditor did not know both the name of the driver and a current address for service for the driver, inviting 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

• Contrary to the requirement of Schedule 4, Paragraph 9 (2) (f), the NTK did not contain a statement warning 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 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 Schedule 4 of POFA are met) have the right to recover from the keeper so much of that amount as remains unpaid

• Contrary to the requirement of Schedule 4, Paragraph 9 (2) (h), the NTK did not identify the creditor and specify how and to whom payment or notification to the creditor may be made

Consequently, the Operator has forfeited any right to keeper liability under POFA 2012.

2. A lack of Premier Park Ltd’s proprietary interest in the land and no contract with the landowner.
It is believed that Premier Park does not own this car park and are merely acting as agents for the owner/occupier. Therefore, since no evidence has been provided it is believed that they are not lawfully entitled to demand money from the driver due to the fact that they do not own nor have interest/assignment of the title of the land in question. Therefore, I ask that Premier Park be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must be pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

3. The car park in question has been free for many years, I enclose several photos taken after the PCN was issued which shows the land owners sign clearly stating “Free Parking” (with no details of additional restriction) and pointing into the car park in question, the event in question occurred in the evening, the landowners (XXXXXXX Town Council) sign is lit and very visible, however Premier Park Ltd signs are not lit, and therefore were not clearly visible. Also I enclose minutes from a XXXXXX Town Council (dated before the event) in which XXXXXX County Council bring the “Free Parking” sign to the attention of the town council and clearly recommend that this sign be reworded (135.d – Sign No 21).

4. The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract.
Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by Premier Park in respect of the alleged event. There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms. The Appellant submits that, if signs were present on the day of the alleged event, they were not prominent enough to form a valid contract. The Appellant submits that no detailed terms relating to Premier Park Ltd’s onerous, inflated penalty charge were visible, and it is therefore apparent that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

5. Planning permission has not been obtained for both the ANPR camera and also signage which have been installed by Premier Park, I have included a copy of an email from XXXXXX XXXXXX Council Planning which confirms this and the fact that both items (camera and signage) do require planning permission. XXXXXX XXXXXX Council planning have passed this information on to the land owners, XXXXXX Town Council.

6. The land is not relevant for POFA 2012. This is mentioned on the notice to keeper and therefore the data obtained from the DVLA has been misused, the land is not relevant as it is owned by a council.

POFA 2012 states:

3 (1) In this Schedule “relevant land” means any land
(including land above or below ground level) other than:
(a) a highway maintainable at the public expense
(within the meaning of section 329(1) of the
Highways Act 1980);
(b) a parking place which is provided or controlled by
a traffic authority;

“traffic authority” means each of the following:
(a) the Secretary of State;
(b) the Welsh Ministers;
(c) Transport for London;
(d) the Common Council of the City of London;
(e) the council of a county, county borough, London
borough or district;
(f) a parish or community council;

Consequently, the Operator has forfeited any right to keeper liability under POFA 2012.

7. The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner.
The demand for a payment of £100 as noted within the Parking Charge (£1 overnight change) is unreasonable and exceeds any appropriate amount of loss suffered by the Landowner. There was no damage nor obstruction caused, so there can be no loss arising from the incident.

In this case Premier Park Ltd has failed to provide any calculation to show how the £100 penalty charge is arrived at, and whether it is an actual or pre-estimated loss. Given that Premier Park charge the same fixed charge to any alleged breach of contract (whether serious/damaging, or trifling in this case), it is clear that there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

Under section 19 of the BPA Code of Practice it states the following:
19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
• When a motorist breaks the terms and conditions of a parking contract
• When a motorist trespasses by parking without permission
• Agreed charges that are advertised in the contract

Therefore, without a genuine breakdown of the actual or pre-estimated costs, I respectfully request that my appeal is upheld and the charge be dismissed.

Taking all the above points into consideration, I therefore respectfully request that POPLA uphold my appeal and instruct Premier Park to cancel the Charge.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.