Premier Park PCN Help please

addie85

Hi all,
So i am overwhelmed and confused by all the info about what to do next.

I have got my POPLA code and am ready to submit my appeal for a PCN.

I was issued a PCN for "No permit on display". I have a permit to park in this area and have a photo of my permit but it must have fallen off the dashboard on this occasion. They have photos of all angles of my car and i cannot see it in the pictures unfortunately. Does anyone know the best template for appeals of this nature with the new POPLA appeals procedure.

Thanks,
Mike

Redx

there are no templates for either popla appeals nor IAS appeals on here and never have been, all appeals are bespoke, plus we have yet to see what works with the new popla as opposed to the old popla

you will find previous appeal examples on here cobbled together by members, some are good examples, all are bespoke and based upon legal arguments , look at 2015 ones only, nothing previous

addie85

ah yes ive had a hunt through and have found a few examples for similar cases.
i think my strongest case would be to argue in the appeal:
-No contract breach would have occured (as i have a permit so no breach of contract has occured- it is not visible in the photos as it is dark and out of focus images)

-The sum charged is extravagant, and not a genuine pre-estimate of any loss incurred (its a permit car park and no pay&display so can argue that maybe)

-Lack of standing/authority from landowner (and hope they cant produce a contract with landowner)

does this sounds reasonable? or should i make a case for all 7 points?
1) No contract breach would have occurred.
2) The Charge is not a genuine pre-estimate of loss
3) Lack of Signage- no contract with driver
4) Lack of standing/authority with landowner
5) Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012
6) Unreasonable/Unfair Terms
7) Unlawful Penalty Charge

thanks,
mike

Coupon-mad

Did you appeal to PP as the registered keeper using the forum template or did you blow it and write about what happened and who was driving?

You need to make a case for ALL points unless you've already thrown away the 'POFA 2012' point if you've said who was driving (hope not). And the seven points you found are ANCIENT - you've been reading old threads... please search for more recent POPLA appeals. Stop trying to find a Premier Park one, look instead for any 'permit POPLA' one from a more recent year!

addie85

annoyingly i just replied using their online appeals process and selected the dropbox that stated that i was the driver. i honestly expected them to wipe the PCN when i sent them a photo of my permit, so hadnt done this research before then. So we can count that point out!

omg im so confused, i was looking in the last few pages (90-93) of the permit POPLA decisions pages from cases in around july-august 2015 where i found those points, are they wrong then?

Fruitcake

addie85 wrote: »

annoyingly i just replied using their online appeals process and selected the dropbox that stated that i was the driver. i honestly expected them to wipe the PCN when i sent them a photo of my permit, so hadnt done this research before then. So we can count that point out!

omg im so confused, i was looking in the last few pages (90-93) of the permit POPLA decisions pages from cases in around july-august 2015 where i found those points, are they wrong then?

You can't use point 5 from your appeal in post 3 as you have outed yourself as driver so keeper liability doesn't apply.

Coupon-mad

addie85 wrote: »

annoyingly i just replied using their online appeals process and selected the dropbox that stated that i was the driver. i honestly expected them to wipe the PCN when i sent them a photo of my permit, so hadnt done this research before then. So we can count that point out!

omg im so confused, i was looking in the last few pages (90-93) of the permit POPLA decisions pages from cases in around july-august 2015 where i found those points, are they wrong then?

Well I haven't seen a decent POPLA appeal ending '7) Unlawful Penalty Charge' for years (that came from a really old and fairly rambling template 2 years or so ago and if people keep copying that, it's not great).

Maybe start with setting the scene with 'Background' for POPLA like I suggested in post #54 to this poster just now:

https://forums.moneysavingexpert.com/discussion/5317558

then continue first with your own (tailored to suit a 'permit' case) version of the point #1 I suggested in post #55 there. Yours will be different in detail but you can use the CPUTRS and UTCCRs and Unfair Contract Terms Act and definitely the Aziz test.

Then have the ones you planned, expanded to suit a permit case:

2) The Charge is not a genuine pre-estimate of loss
3) Lack of Signage - no contract with driver
4) Lack of standing/authority with landowner

I would be reading ONLY 'permit' cases to try to find a suitable POPLA appeal someone has posted before like yours, so try searching this forum for 'permit dashboard POPLA' or a 2 word combination of those keywords, which might get you decent results.

Do NOT major on the fact you had a permit - do show it as evidence - but don't rely on that point in a big way, because the allegation is that it wasn't on display.

HTH

addie85

Right, so i think ive put together my POPLA appeal. If anyone has time to read over it before i submit it i would be massively grateful.

I think i understand the basic principle of each arguement but all the legal discussions are still quite confusing to me so im not sure my arguements flow to the reader who understand them!

Enjoy-
Dear POPLA assessor,

Background from the appellant who is the registered keeper (the driver was not evidenced):

As a law abiding citizen who always pays his way I was deeply upset to be presented with a Parking Charge Notice from Premier Park for allegedly parking without displaying a valid permit while I was visiting a friend on who lives on this property. I assumed this was a genuine mistake on behalf of Premier Park as perhaps they had not seen my permit as it was dark at the time and was positioned in the bottom left of the windscreen, I followed their appeals procedure and demonstrated that I was in possession of a parking permit as I park here often. This was their opportunity to use some common sense and realise they had issued the PCN in error but they declined this opportunity and hence I now feel strong enough to exercise my right to appeal this to POPLA.

I am the registered keeper but I was an occupant of the car so can give you an honest account. The driver will not be named because I wish to use the protection offered to keepers in the POFA 2012, as one of my appeal points.

How a £100 ‘fine’ can arise from this, without being unlawful, is beyond me.

I submit the points below to show that I am not liable for the parking charge:

1) No contract breach would have occurred.
2) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
3) The parking charge is not a genuine pre-estimate of loss
4) Lack of Signage- no contract with driver
5) No standing or authority with landowner.

1) No contract breach would have occurred.
The driver is in possession of a valid permit to park on this land. Due to this, even if a contract to be considered has taken place, the contract fulfilment on behalf of the driver would have occurred, as he has displayed a valid permit. The permit was visible to the human eye from outside the vehicle. The photographs supplied by Premier Park are out of focus and utilise clever use of shadow and reflection from a warden on an incentives scheme to misrepresented this fact. (I enclose an image showing the permit.)

2) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

In our case, the driver relied upon the parking inspector visually confirming the presence of a permit and making a fair representation of this in the photographic evidence. The photographs provided by Premier Park are blurry and are too dark to accurately see the permit on display. We displayed the permit in the car so complied with all the signage terms and the driver NEVER agreed nor accepted any contract to pay £100.

Obviously if drivers had any idea that inspectors would not make fair representations of the presence of their permits at night then they would not park at this car park at all because this is contrary to good faith.
This was undoubtedly a pitfall or trap, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:

(link here that i cant post on MSE forum)

‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’

Unfair Contract Terms Act 1977:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

By this argument, the charge is not exempt from the test of fairness then. It represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’ I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. This charge caused a significant imbalance in the parties' rights and obligations arising under the contract, which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts. For example, in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G, it was stated that:

‘whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.’

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.

The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a Premier Parking run car park and never will again.

Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.

3) The parking charge is not a genuine pre-estimate of loss.

Premier Park claims that the charge is for failure to comply with its terms of parking and that the vehicle was in breach, so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the land is private land that has no charging facilities whatsoever. The vehicle was parked within a marked bay within Pacific Close, using a Premier Park permit.

Therefore, Premier Park cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back-office functions, debt collection, etc., cannot possibly flow as a direct consequence of this parking event. Premier Park would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The charge of £100, being sought for an alleged breach of the parking terms, namely ‘parked in a permit area without displaying a valid permit’, is disproportionately high. Consequently I contend and the BPA code of practice states, a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA 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.

Christopher Adamson stated in a POPLA appeal against VCS Ltd stated: ‘the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed... that a charge for damages must be compensatory in nature rather than punitive.’

This case involves a private parking area for vehicles with Premier Park permits. The vehicle was parked in an allocated bay, which incurs no fees for parking at any point. Therefore, there is no loss to anyone. As the charge in this case is the same lump sum charged for any alleged ‘breach’ (irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this parking bay, etc.), it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre-estimate of loss in this case.

In addition, POPLA Assessor Christopher Adamson stated in June 2014 upon seeing Vehicle Control Services’ effort at a loss statement – likely to be broadly similar to any effort made by UK Parking Control Ltd – that:

‘I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach.’

In another upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs that were made up of general business costs was commercially justified. She said:

‘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.’

This case is the same and Premier Park is at best an agent, with a bare contractor’s license to put up signage and ‘issue tickets’. The vehicle was clearly parked in a bay with a valid permit and it is therefore clear that this parking charge is punitive and no consideration has been given to calculating a genuine pre estimate of loss in this case. Therefore, I require the operator to submit a full breakdown of its genuine pre-estimate of loss to show how the loss is calculated in this particular parking area and for this particular alleged breach. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified nor proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.





4) Lack of signage - no contract with driver

Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Premier Park are a mere agent and place their signs not at eye-level nor are they lit so they can be viewed at night like in this case, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to this land, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Premier Park have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival. The signs on entry are on fences or posts which cannot be read by a driver in their vehicle entering the private land. Stopping the vehicle before entering the land to get out, self-illuminate the signs with a torch and read them is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the land.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
Premier Park needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor 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.

BPA Code of Practice section 18:
''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area.”

5) Lack of standing/authority from landowner

Even had the permit had not been displayed, Premier Park has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Premier Park to strict proof of the contract terms with the actual landowner (not a lessee or agent). Premier Park have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this land and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Premier Park are entitled to pursue these charges in their own right.

I require Premier Park to provide a full unredacted copy of the signed & dated contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.


I therefore respectfully request that my appeal is upheld and the charge is dismissed.

addie85

forgot to say, is it worth adding in the registered keeper argument even though in the online appeals procedure i stated that i was the driver in a drop down box?

Edna_Basher

Unfortunately, once you admitted to being the driver, the non-compliance of Premier Park's Notice to Keeper became irrelevant.

A lesson learned for next time, I suppose.

soton_25

Yes - my experience of Premier Park is they struggle to comply with Section 8 & 9 of POFA2012. Shame you gave up that appeal point. It should often be a slam dunker.