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

Sicsiksix

It has this section:

6(8) (B) The landlord may add to, diminish, modify or alter any such service if by reason of any change of circumstances during the term such addition, diminution or alteration is, in the opinion of the landlord, reasonable necessary or desirable in the interest of good estate management or for the benefit of the occupiers of the Building

Should I include a 6th appeal point along the lines of:

Vehicle parked in accordance with property lease
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 can be no contract requirement to display a permit by Premier Park Ltd.

Fruitcake

pappa_golf wrote: »

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

#
My Roller only weighs 1.75 tonnes, but it still wouldn't be any good me lending it to the OP.

Fruitcake

Sicsiksix wrote: »

It has this section:


Should I include a 6th appeal point along the lines of:

I would suggest that: -


"therefore there can be no contract requirement to display a permit by Premier Park Ltd"


is replaced with something like: -


"therefore there is no contract between the keeper and Premier Park Ltd."

Coupon-mad

I think the heading of the final appeal point should be 'No contract between driver and Premier Park'.

Then you can cite the info about the lease and also show POPLA a copy of the front & back of the permit and and (if you have it) a copy of any letter sent with the permit or form signed with the concierge or management company. What you want to be saying is:

' 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. '

Then compare for POPLA's benefit, the signage font/size and clarity of terms and the prominence (or NOT) of the actual £100 charge with the Beavis decision {ParkingEye Ltd v Beavis [2015] UKSC 67} where the Judges said, regarding the terms as displayed:

Lord Neuberger: ''The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it. The terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed.''

Lord Hodge at 287: ''...the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable...''



Oh, and get rid of this as it is not for you to help their case, that's a no-no:

''(although not clearly on display)''


And are you saying they never sent a NTK at all? If so then add this wording to the bit about no keeper liability:

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 ‘notice to keeper’ (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.

Sicsiksix

I have updated the OP with some adjustments.

- I updated the wording slightly in point 6 as per Fruitcakes suggestion
- Updated heading of point 6 as per Coupon-mad's suggestion
- I will get a picture of the permit to include within point 6
- Updated point 1 with Coupon-mad's paragraph regarding no NTK
- Removed part in brackets in point 2

Coupon-mad wrote: »

...Then compare for POPLA's benefit, the signage font/size and clarity of terms and the prominence (or NOT) of the actual £100 charge with the Beavis decision {ParkingEye Ltd v Beavis [2015] UKSC 67} where the Judges said, regarding the terms as displayed:

Lord Neuberger: ''The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it. The terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed.''

Lord Hodge at 287: ''...the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable...''

I'm not sure what to include for this. Below is an image of the closest sign to the vehicle space that Premier Park took (I cropped out the timestamp). It is not close to the single light source in the car park and is located on the passenger side of the vehicle across some grass on a wall.

imgur.com/RPkiKpB (unable to post links yet!)

There are two other signs in the car park, one is on the right wall as you enter the narrow entrance to the car park - but the driver needs to look to the left as the car park goes that way (L shape), and the 3rd is on the wall opposite where you come in, but off to the side, so after turning it is on your right. The 3rd one cannot be seen as you enter the car park. The pictured one is on the left side after turning into the car park (so same side as entrance), not possible to be seen while parking or entering the car park.

Our space is in the left corner directly ahead after turning from the entrance, at no point does the vehicle directly face a sign to be lit up by the headlights if it is dark.

I also don't believe we have any documentation surrounding the permit being received or even received anything at all for when Premier Park took over from the prior company. If we did, it is likely we don't have it available.

Sicsiksix

I am looking to submit this tomorrow, so any final advice you can offer would be much appreciated.

Thanks.

Sicsiksix

So finally after 3 months I have received an 'Unsuccessful' response from POPLA. What should I do now??

Decision Unsuccessful
Assessor summary of operator case
The operator’s case is that the Parking Charge Notice (PCN) was issued as the appellant’s vehicle was not displaying a valid permit.

Assessor summary of your case
The appellant is the registered keeper of the vehicle. The appellant has raised several grounds for appeal, these are as follows: • The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability. The appellant has not been provided with a Notice to Keeper. • Vehicle that was issued the PCN, is considered to be a genuine resident – Even if all the spaces were occupied by valid residents, the operator would not have suffered a loss. The landowner employs parking companies to stop non-residents abusing the car park. • Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage – There is only one notice up on the wall and this is away from the light source located at the entrance to the site. At the time of the contravention it was dark and no signage was clearly visible. At the site, there is a broken sign and upon entrance to the car park, there is no mention of a permit being required. Unreadable sign breaches the British Parking Association’s Code of Practice, as the signage must be clearly readable without a driver having to turn away from the road ahead. • No genuine pre-estimate of loss – The charge of £100 is punitive and unreasonable. • No standing or authority to pursue charges nor form contracts with drivers – the operator has no proprietary interest in the land, so they have no standing to make contracts with drivers or to pursue charges for breach in their own name. • No contract between driver and Premier Park Ltd – As per the property leave signaged 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. The vehicle was parked while observing the requirements of the property lease therefore, there is no contract between the keeper and the operator.

Assessor supporting rational for decision
The operator has issued a notice to driver, and as such is pursuing the driver for payment of the Parking Charge Notice, which is payable by the driver. The appellant is appealing the Parking Charge Notice (PCN) as keeper of the vehicle. The Protection of Freedoms Act (PoFA) 2012, paragraph 4 (1) states “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”. The operator has the right to pursue the registered keeper of the vehicle if payment of the PCN remains unpaid after 28 days. The operator has not sought keeper liability. The operator has not issued a Notice to Keeper, as the keeper of the vehicle has responded to the Notice to Driver. The appellant states there are unreasonable and unfair terms, no contract was agreed to pay £100. One of the issues in the ParkingEye-Vs-Beavis case was that the charge contravened the Unfair Terms in Consumer Contracts Regulations 1999. The outcome was: “The court dismisses the appeal by a majority of six to one, and declares that the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999”. Both the appellant and the operator have provided photographic evidence of the signage at the site. However, these photographs show conflicting evidence. I can see that the operator has provided photographs dated from between 25 June 2014 to 17 October 2015. As the appellant has advised the vehicle was parked while observing the requirements of the property lease signed in 2007, it is reasonable to expect that there has been sufficient opportunity for the terms and conditions to be seen, read and understood. By entering into the car park and remaining in this area, the motorist is agreeing to the terms and conditions of the car park. Therefore, a contract between the motorist and the operator has been agreed. The operator has produced a witness statement to prove they can operate on the land. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. This meets the criteria set out in the BPA Code of Practice, section 7. The appellant says there is no genuine pre-estimate of loss and that the vehicle that was issued the PCN, is considered to be a genuine resident. Even if all the spaces were occupied by valid residents, the operator would not have suffered a loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices. Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” Having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. While I recognise the appellant has a valid permit for the vehicle, as the vehicle has been parked without a valid permit on display, the terms and conditions of the car park have not been met. Accordingly, I must refuse this appeal.

nigelbb

Sicsiksix wrote: »

So finally after 3 months I have received an 'Unsuccessful' response from POPLA. What should I do now??

The operator has not sought keeper liability. The operator has not issued a Notice to Keeper, as the keeper of the vehicle has responded to the Notice to Driver.

This is another perverse POPLA decision where the assessor demonstrates that they do not understand the requirements of POFA 2012. Even if the Keeper appeals the NTD there can be no presumption that this is an admission that the Keeper was the Driver e.g. the Driver could have handed the NTD to the Keeper to deal with. Without knowing who the Driver was the PPC can only hold the Keeper liable if a number of conditions are met. Firstly & most importantly that they issue a complaint Notice To Keeper. Without the NTK there can be no keeper liability. The PPC also have to purchase the keeper details from the DVLA & issue the NTK within the required timescales but the fundamental point is "No NTK = No Keeper Liability".

You need to contact POPLA to complain regarding this flawed assessment plus complain to the Independent Scrutiny Board for Parking Appeals on Private Land regarding this perverse assessment.
http://ispa.co.uk

Coupon-mad

This one takes the biscuit. What was the name of that clueless Assessor please?

You absolutely need to complain because that decision is WRONG. Sadly, this suggests that POPLA need their heads knocking together and unless they put this error right they really need to go back to the drawing board. It's not even difficult law to understand!

Start with an immediate, strongly worded complaint by email to POPLA asking that they revisit the specific, vital point about liability of a keeper appellant - because the Assessor has clearly erred VERY seriously in completely misunderstanding or ignoring the statute (POFA 2012).

Point out and quote from the POFA Schedule 4 and ask why the Assessor has imagined an exemption to issuing a Notice to Keeper, in a case where the driver has never been established. There MUST be a NTK otherwise the conditions for keeper liability have not been met. A keeper is allowed to appeal if they hear about a windscreen PCN but that appeal, if by a keeper, neither makes them necessarily the driver, nor exempts a PPC from following the prescribed MANDATORY conditions for keeper liability. A NTK is mandatory.

Tell POPLA: there are no circumstances where a keeper can be liable if no NTK was issued. Ask for the case to be escalated to the Lead Adjudicator because this is vital and basic knowledge of the POFA, completely missed due to an assumption by the Assessor. It is also completely inconsistent with other POPLA appeals where no keeper can lose/has ever lost/can ever be held liable, where there is no NTK.

Guys_Dad

This thread encapsulates my long-held views that a long, multi point appeal can work against an appellant.

The facts are that there was one indisputable legal point here - no NtK therefore no keeper liability - see POFA !.

Instead of keeping it to that, we got a War and Peace kitchen sink appeal including
"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"

As the assessor rightly said "I can see that the operator has provided photographs dated from between 25 June 2014 to 17 October 2015. As the appellant has advised the vehicle was parked while observing the requirements of the property lease signed in 2007, it is reasonable to expect that there has been sufficient opportunity for the terms and conditions to be seen, read and understood.".

If this had been a single point appeal, based on indisputable POFA requirements, the adjudicator's attention would have had to home in on that point - and maybe ever read POFA 2012 ! .

Instead, the bulk of the adjudication refers to Beavis and Beavis is not our friend in adjudicator/judges eyes in the main.

So, may I ask regular contributors when there is a clear legal failure of the PPC - (out of time, no NtK, etc) - to advise OPs to forget the NEWBIES standard repertoire of appeal points, unless photographic evidence is really helpful, and to make a short, single point appeal that is 100% sound in law.

If that had been done here, as the OP is being advised to appeal against the adjudication on the single issue of POFA, then I venture to speculate that the appeal woulkd have been won.

I intend to bookmark this nthread as a fine example of what NOT to do in similar circumstances.