POPLA Appeal [Premier Park Ltd] (Short Time Left)

Sicsiksix

Hi MSE users!

I recently received a notice on my vehicle in a residential car park due to the permit not being in full view in the windscreen. Having tried to contact the housing office to get the charge cancelled directly and them failing miserably, I have had to go through the standard appeals process and am nearing my POPLA deadline which is the end of this week.

I have not received a notice to keeper since the notice being left on the vehicle back in october, and am not sure exactly how to word point 1 to this effect.

Below is my draft letter, any advice or wording changes are very much welcome! I wish to submit this by Wednesday if everything is looking ok.

Re: Premier Park Ltd PCN, {PCN Reference}
POPLA Code: {POPLA Reference}

Dear POPLA Adjudicator,

As a law abiding citizen who always pays his way, I was extremely upset to hear of a £100 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for. The vehicle in question was parked in a residential car park and does hold a valid permit. The space in which it was parked is for sole use of that vehicle and at the time in question, the permit had slipped out of view.

How a £100 ‘fine’ can arise from a residents vehicle being parked in that same residents’ allocated parking space, without being unlawful, is beyond me.

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

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
2. Vehicle issued the PCN is considered to be a genuine resident
3. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
4. No genuine pre-estimate of loss
5. No standing or authority to pursue charges nor form contracts with drivers
6. No contract between driver and Premier Park

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
To date I have not been issued a Notice to Keeper (NTK) by Premier Park Ltd. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 17/10/2015 and from my understanding the NTK was required to reach me by 12/12/2015. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that Premier Park Ltd provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

2. Vehicle issued the PCN is considered to be a genuine resident
With regards to the PCN, the vehicle in question is in possession of a valid permit at the time of contravention. If for example all of the ‘resident only’ spaces were occupied by valid residents, regardless of whether permits were displayed, Premier Park Ltd would still have incurred zero loss. When empty, these resident spaces cannot be re-offered in exchange for fees to those who have no association with the buildings, making the charges punitive.

The reason land owners employ parking companies are to stop non-residents abusing the car park in question. Genuine residents should not be deterred from using the parking spaces provided to their properties.

3. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
The only notices are up on walls, away from the single light source in the car park area, which is not a 'sign' nor does it communicate full contractual terms & conditions. At the time of the contravention it was very dark and no signage was clearly visible by the vehicle. Any photos supplied by Premier Park Ltd to POPLA will no doubt show the signage in daylight or with the misleading aid of a close up camera with an extremely bright flash and the angle may well not show how high the sign is nor the fact the Premier Park Ltd signs are one of many pieces of information in the clutter of this residential car park. As such, I require Premier Park Ltd to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding a resident without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that 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. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear 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.

4. No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Premier Park Ltd must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Premier Park Ltd have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Premier Park Ltd cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Premier Park Ltd are likely to be paid by their client - so any such payment income must be balanced within the breakdown Premier Park Ltd supply and must be shown in the contract, which leads me to appeal point 5 below.

5. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Premier Park Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Premier Park Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Premier Park Ltd and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Premier Park Ltd.

6. No contract between driver and Premier Park
As per the property lease signed and agreed to in 2007, there is no mention of Premier Park Ltd, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property. As per appeal point 5 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and Premier Park Ltd.

Below you will find a picture of the permit the vehicle holds.
{Image of Permit}

Neither the permit itself nor the form the resident signed adequately (or at all) warned of the AMOUNT of any parking charge nor drew attention to any further terms which could apply to the contract at the time of the permit being handed over. It is too late to bring other terms into a contract (not even those on a sign) if these terms were not part of the agreement made at the time of the permit being provided. They were not. The residents had no idea that a 'fine' of £100 could possibly apply.

In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright.

{Possible information comparing to prior case}

This concludes my POPLA appeal.

Yours faithfully,

{Name of Keeper}

Updated 10/03/2016 - POPLA Decision:
https://forums.moneysavingexpert.com/discussion/5378359

Fruitcake

It is refreshing to see someone who has done all their research and got this far before posting. Well done. :T


It looks pretty good to me but I'm not an expert. The only think I can see wrong is the omission of, "inadequate signage." If you have time, take pictures of signage and in any case explain in your appeal why they are inadequate and don't meet the BPA Code of Practice.

catfunt

If you live there, then should the reference to "customer(s)" be changed to "residents" or "tenants" in point 2?

Also, do the terms of the let with the HA contain any references to parking or parking permits?

Fruitcake

catfunt wrote: »

If you live there, then should the reference to "customer(s)" be changed to "residents" or "tenants" in point 2?

Also, do the terms of the let with the HA contain any references to parking or parking permits?

Good points.


Check your lease and see what it says. If it doesn't mention permits then add that as an appeal point. No permit in the lease means no contract with the parking scumpany. Lease trumps all.

Sicsiksix

Good point regarding point 2, I will update references to residents.

I did look through the lease back when I got the ticket and cannot recall anything specifically mentioning permit or a specific company, just that we need to keep the space in good order.

We had a seemingly private clamping company for a few years and then it switched over to Premier Park a year or so ago. Since Premier Park have been in control it's been impossible to get them to send people out when there is actually someone in the space who isn't a resident... the clamping company you could actually get to come out within 30 minutes!

I would imagine the lease was set up without a company in mind to manage the car park and permits may not have been in place at the time. It was a new build and my parter has been there since the start.

Fruitcake

Sicsiksix wrote: »

Good point regarding point 2, I will update references to residents.

I did look through the lease back when I got the ticket and cannot recall anything specifically mentioning permit or a specific company, just that we need to keep the space in good order.

We had a seemingly private clamping company for a few years and then it switched over to Premier Park a year or so ago. Since Premier Park have been in control it's been impossible to get them to send people out when there is actually someone in the space who isn't a resident... the clamping company you could actually get to come out within 30 minutes!

I would imagine the lease was set up without a company in mind to manage the car park and permits may not have been in place at the time. It was a new build and my parter has been there since the start.

Clamping on private land is now illegal. Previously a clamper would be out like a shot because they would effectively take the car hostage until a release fee was paid. Now that can't happen so the parking scumpanies have to put in more effort to get their money.


Once a parking company has seen off the people who shouldn't park there, the only way they can make money is to target people like yourself by making up their own rules.


You need to dig out the lease and see exactly what it says, and also add in the bit about inadequate signage.

Sicsiksix

I have updated the OP with the changes to point 2.

I am not currently at the property and will hopefully be sent over the relevant paragraph to the parking space later this evening from the lease.

What should I add regarding signage? There are some comments made within point 3 already? Should I add 'Inadequate signage' as part of the heading to make it clearer that is contained there?

Sicsiksix

Here is what is stated in the lease regarding the parking:

THE FIRST SCHEDULE ABOVE REFERRED TO MUTUAL COVENANTS
5. Not to park any vehicle other than a properly taxed and roadworthy motor vehicle not exceeding one tonne gross laden weight in the Parking Space(s) (if any) and at all times during the Term to keep the Parking Space(s) (if any) clean and tidy and undamaged to the reasonable satisfaction of the Landlord

Fruitcake

Sicsiksix wrote: »

Here is what is stated in the lease regarding the parking:

Perfect. No mention of permits so none required. You observe the requirements of your lease and put fact in to PoPLA that therefore there can be no contract requirement to display a permit.

pappa_golf

Fruitcake wrote: »

Perfect. No mention of permits so none required. You observe the requirements of your lease and put fact in to PoPLA that therefore there can be no contract requirement to display a permit.

correct , however the OP is "scuppered" when he parks his 2.5 ton rolls/Bentley there

Guys_Dad

Sicsiksix wrote: »

Here is what is stated in the lease regarding the parking:

Please read the lease again. Does the lease give the management company the right to introduce any measures it deems fit from time to time. Or a clause anything like that?

Please look carefully and let us know.