Premier Park LTD PCN

Kiddo79

Fruitcake wrote: »

Yes, but keeper liability shouldn't be your only appeal point.

My first and foremost point will be grace periods as set out by the BPA cop.

Coupon-mad

+ UnclearSignage.

+ No landowner authority.

As per this one on pepipoo about Berry Head, for example (if yours was Berry Head you also have 'not relevant land due to byelaws' and 'the photos are taken out on public highway not within the car park'):

http://forums.pepipoo.com/index.php?showtopic=106358&st=20&start=20

Frighten PP away with a long appeal - starting with 9f of the POFA Schedule 4 , then point #2 being 'Grace Periods (quoting from the BPA CoP) - and as long as nothing is said about who was driving, you will not see them for dust!

TjK

Out of interest, who regulates POPLA? I am at appeals stage with POPLA relating to a Premier Park violation of 9 minutes due to my son taking ill. In their last correspondence, POPLA said I had 7 days to comment on eveidence received from PP Ltd and I could do this in my appeals tracking page. On visiting this, there was no opportunity to do so as the appeal was being assessed already despite it only being 2 days since receiving the correspondence. Can cases be thrown out on violation of protocols? Sorry for hijacking thread but I can't work out how to start a new one and this is driving me mad!

pappa_golf

TjK wrote: »

Out of interest, who regulates POPLA? I am at appeals stage with POPLA relating to a Premier Park violation of 9 minutes due to my son taking ill. In their last correspondence, POPLA said I had 7 days to comment on eveidence received from PP Ltd and I could do this in my appeals tracking page. On visiting this, there was no opportunity to do so as the appeal was being assessed already despite it only being 2 days since receiving the correspondence. Can cases be thrown out on violation of protocols? Sorry for hijacking thread but I can't work out how to start a new one and this is driving me mad!

gosh , the IPSA of coarse (sp) , very fishy how 40% of the board have resigned , and the other 60% are purely puppets for the BPA

Fruitcake

TjK wrote: »

Out of interest, who regulates POPLA? I am at appeals stage with POPLA relating to a Premier Park violation of 9 minutes due to my son taking ill. In their last correspondence, POPLA said I had 7 days to comment on eveidence received from PP Ltd and I could do this in my appeals tracking page. On visiting this, there was no opportunity to do so as the appeal was being assessed already despite it only being 2 days since receiving the correspondence. Can cases be thrown out on violation of protocols? Sorry for hijacking thread but I can't work out how to start a new one and this is driving me mad!

Moneysavingexpert, Forum, MOTORING, PARKING, PARKING TICKETS, FINES & PARKING sub board. Click on the cunningly disguised New Thread button to start your own thread.

Coupon-mad

TjK wrote: »

Out of interest, who regulates POPLA? I am at appeals stage with POPLA relating to a Premier Park violation of 9 minutes due to my son taking ill. In their last correspondence, POPLA said I had 7 days to comment on eveidence received from PP Ltd and I could do this in my appeals tracking page. On visiting this, there was no opportunity to do so as the appeal was being assessed already despite it only being 2 days since receiving the correspondence. Can cases be thrown out on violation of protocols? Sorry for hijacking thread but I can't work out how to start a new one and this is driving me mad!

This is not difficult and has been covered before.

If the 'portal' is not offering you the comments window, simply email your comments on the evidence pack to POPLA. You have their email addy already and all you do is tell them the Portal has closed early yet you only got the evidence pack 3/4 days ago so here are your comments.

Put the POPLA code in the subject line and 'URGENT COMMENTS ON EVIDENCE PACK'.

DO NOT CALL IT YOUR 'APPEAL' DO NOT USE THAT WORD AT COMMENTS STAGE.

I hope you appealed as keeper and explained that the wording: 'within 28 days' or 'within 29 days' (on the NTK) is not compliant with the POFA Schedule 4?

As POPLA got one wrong on pepipoo this week (as long as you did not appeal as driver!) spell that out with dates, to show their wording is WRONG and results in a different date than Schedule 4 does, therefore it is not possible to consider the NTK compliant. See the posts on this pepipoo thread from yesterday, which discuss how to spell out to the dimmest POPLA Assessor that the dates do not stack up, whether your NTK says 'within 28 days' or 'within 29 days':

http://forums.pepipoo.com/index.php?showtopic=108716&st=80

And we hope that you used and quoted BPA Grace Periods?

We do hope that you didn't just write about your son being ill and tell them who was driving?

All rhetorical questions - PLEASE START YOUR OWN THREAD TO TELL US WHAT YOU SAID IN APPEAL.

Kiddo79

Here's my POPLA appeal/ evidence. Any hints/ tips/ suggestions would be most welcomed. I hope I have covered everything!

Vehicle Registration Number: ******
PCN Reference ****
POPLACODE: *****
Issued by Premier Park Limited.

I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Premier Park Limited (“Premier”) in respect of an alleged breach of Parking Terms and Conditions at Ansteys Cove Car Park on 29th August 2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1) Keeper Liability not established – The Notice to Keeper is not compliant with the strict requirements of POFA 2012.
2) Grace Periods – The onsite camera took pictures of the vehicle entering and exiting the car park – these times differ from that of the issued parking ticket.
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Unclear Signage - The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
5) No genuine pre-estimate of loss


1) Premier’s Notice to Keeper failed to meet the strict requirements of POFA 2012

Schedule 4, Paragraph 9 of PoFA states the PCN must
(f) 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 PCN issued states however:

“If within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

This does not fully meet the requirements of PoFA as, by informing that it can seek to recover payment within 29 days, Premier has failed to meet section (9f) as this 29 day period will not begin until the day after the notice is given.

Consequently I believe that “Premier” has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the keeper of the vehicle and as such I should not be held liable.


2) Grace Periods

Time stamped pictures have been sent to me allegedly noting the time of the vehicle entering and exiting the site. However these times differ from the times stamped on the actual parking ticket.

Please see the attached evidence – notably the difference between the parking ticket times and the times indicated on the ‘PCN’.
Entry time according to camera – 12.20
Actual time of ticket purchase – 12.25. 5 minutes after entry to the car park.
Exit time according to camera – 14.36
Ticket expiry time – 14.25 – 11 minutes difference
“Premier” should not be pursuing this ‘PCN’ if they are following the BPA Code of Practice allowing a minimum of 10 minutes grace for exiting the car park.
The British Parking Association code of practice 13.2 states: You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.4 states: You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

I believe the 11 minutes to exit, after the purchase expired, to be reasonable. I agree there was a purchase of 2 hours parking, I am therefore appealing on the grounds of an appropriate grace period.

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorized to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorized to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorized can give rise to a charge and of course, how much the landowner authorizes this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorization must also set out:

a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) Who has the responsibility for putting up and maintaining signs

e) The definition of the services provided by each party to the agreement

4) Unclear Signage - The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5) No genuine pre-estimate of loss

The excessive charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. “Premier” must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal that evidences the genuine pre-estimated amount of loss in this particular site parking 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” 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” 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 Parking Ticketing Limited are likely to be paid by their client - so any such payment income must be balanced within the breakdown “Premier” supply and must be shown in the contract.


This concludes my POPLA appeal.

Yours sincerely....

Coupon-mad

Point #5 is old and will not win - in fact it's more likely to make POPLA find against you by throwing their standard 'Beavis supersedes all' paragraphs at it! So NOTHING about 'no GPEOL' no loss should feature.

I would underline 'a minimum' in the Grace periods section and state that any extra seconds would either have been due a courteous driver having to give way to pedestrians or queues of cars on leaving, as this is a busy tourist car park (if it is), or quite possibly because the P&D machine timer is not synchronised to the ANPR system. State that they are two separate systems and there has been no evidence that the car actually left 11 minutes past the time on the P&D machine which produced the ticket.

As the alleged 11 minutes is unproven and is not comparing like with like ('ticket expiry time' compared with 'ANPR clock' is not the same system), you put PP to strict proof of how the system timers are checked and synchronised on a daily basis, just as Councils are required to do when issuing tickets based on a P&D machine clock. On the balance of probabilities the car left within 10 minutes of expiry/the time on the machine that produced it. The separate system of the ANPR clock has not proved otherwise and indeed it would be in an operator's favour to make sure the ANPR clock runs a minute or two differently than the P&D machine (and no-one checks this except perhaps on a rare car park site audit once a year at most). The conclusion must be that the car left in a reasonable time according to the BPA CoP's 'bare minimum' expectation.

And in your point #1, I would add your own version (using your NTK date) of the calculation in post #43 here (the bit that compares the POFA calculation with PP's own version):

http://forums.pepipoo.com/index.php?showtopic=108086&st=40&start=40

Post it up to check the dates as I got one wrong when writing that last night for someone who lost (POPLA error). You want to avoid that possibility so put the dates in their face so the POPLA Assessor can't go wrong...

Kiddo79

Thanks so much for your advice and help Coupon Mad! Amended version below...

I am a bit confused on the 29 day thing but hopefully followed the POFA calculation correctly? I wasn't sure whether to start from the day I actually received the PCN or the assumed date that the PCN had been sent? PLUS the letter isn't actually dated. it has the Parking Charge 'issued date' in the Parking Charge details but no date next to the address or anything like that.

Anyway here it is...

Vehicle Registration Number: ******
PCN Reference ****
POPLACODE: *****
Issued by Premier Park Limited.

I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Premier Park Limited (“Premier”) in respect of an alleged breach of Parking Terms and Conditions at Ansteys Cove Car Park on 29th August 2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1) Keeper Liability not established – The Notice to Keeper is not compliant with the strict requirements of POFA 2012.
2) Grace Periods – The onsite camera took pictures of the vehicle entering and exiting the car park – these times differ from that of the issued parking ticket.
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Unclear Signage - The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
5) No genuine pre-estimate of loss


1) Premier’s Notice to Keeper failed to meet the strict requirements of POFA 2012

Schedule 4, Paragraph 9 of PoFA states the PCN must
(f) 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 PCN issued states however:

“If within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

This does not fully meet the requirements of PoFA as, by informing that it can seek to recover payment within 29 days, Premier has failed to meet section (9f) as this 29 day period will not begin until the day after the notice is given.

The PCN has an "issued date"of 6th September 2016. I received it on the 10th September 2016.
Assuming the PCN was posted on 6th September 2016, the date "given" (presumed unless the contrary is proved to be the second working day after the day on which it was posted) is 8th September 2016
The period of 29 days 'beginning with the day after that on which the notice is given' covers the 29 days 26th September 2016 - 23rd October 2016
Therefore 24th October 2016 is the first day after this period of 29 days = i.e. the first day that the right to recover payment from the keeper exists.

Consequently I believe that “Premier” has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the keeper of the vehicle and as such I should not be held liable.


2) Grace Periods

Time stamped pictures have been sent to me allegedly noting the time of the vehicle entering and exiting the site. However these times differ from the times stamped on the actual parking ticket.

Please see the attached evidence – notably the difference between the parking ticket times and the times indicated on the ‘PCN’.
Entry time according to camera – 12.20
Actual time of ticket purchase – 12.25. 5 minutes after entry to the car park.
Exit time according to camera – 14.36
Ticket expiry time – 14.25 – 11 minutes difference
“Premier” should not be pursuing this ‘PCN’ if they are following the BPA Code of Practice allowing a minimum of 10 minutes grace for exiting the car park.
The British Parking Association code of practice 13.2 states: You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.4 states: You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

As the alleged 11 minutes is unproven and is not comparing like with like. The 'ticket expiry time' compared with 'ANPR clock' are not the same system. I put "Premier" to strict proof of how the system timers are checked and synchronised on a daily basis. On the balance of probabilities the car left within 10 minutes of expiry according to the the time on the machine that produced it. The separate system of the ANPR clock has not proved otherwise and indeed it would be in an operator's favour to make sure the ANPR clock runs a minute or two differently than the P&D machine. The conclusion must be that the car left in a reasonable time according to the BPA CoP's 'minimum' expectation.

I believe the time taken to exit, after the purchase expired, to be reasonable. I am therefore appealing on the grounds of an appropriate grace period.

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorized to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorized to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorized can give rise to a charge and of course, how much the landowner authorizes this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorization must also set out:

a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) Who has the responsibility for putting up and maintaining signs

e) The definition of the services provided by each party to the agreement

4) Unclear Signage - The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

This concludes my POPLA appeal.

Yours sincerely....

Again, any comments would be most welcome. Thanks again!

Edna_Basher

Kiddo79 wrote: »

The PCN issued states however:

“If within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

This does not fully meet the requirements of PoFA as, by informing that it can seek to recover payment within 29 days, Premier has failed to meet section (9f) as this 29 day period will not begin until the day after the notice is given.

The PCN has an "issued date"of 6th September 2016. I received it on the 10th September 2016.
Assuming the PCN was posted on 6th September 2016, the date "given" (presumed unless the contrary is proved to be the second working day after the day on which it was posted) is 8th September 2016
The period of 29 days 'beginning with the day after that on which the notice is given' covers the 29 days 26th September 2016 - 23rd October 2016
Therefore 24th October 2016 is the first day after this period of 29 days = i.e. the first day that the right to recover payment from the keeper exists.

Consequently I believe that “Premier” has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the keeper of the vehicle and as such I should not be held liable.

Hi Kiddo

I think you've got your calculations in a muddle. I think your text should read:

The PCN issued states however:

“If within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

This is not consistent with the requirements of Paragraph 9 (f) of Schedule 4 of POFA as demonstrated below:

POFA

The PCN is dated Tuesday 6th September 2016.
Notwithstanding that I did not receive the PCN until Saturday 10th September 2016, even assuming the PCN was posted on 6th September 2016, the date "given" (presumed unless the contrary is proved to be the second working day after the day on which it was posted) would have been Thursday 8th September 2016.
The period of 28 days beginning with the day after that on which the notice is given would cover the 28 days Friday 9th September – Thursday 6th October 2016.
Therefore Friday 7th October 2016 would be the first day after this period of 28 days i.e. the first day that the right to recover payment from the keeper existed.

Premier's NTK

The PCN is dated Tuesday 6th September 2016.
Premier claims the keeper becomes liable "If within 29 days we have not received full payment".
Even if the date of posting is not counted, this 29 day period covers Wednesday 7th September – Wednesday 5th October 2016 inclusive.
According to Premier, Thursday 6th October 2016 would be the first day after this period of 29 days i.e. the first day that the right to recover payment from the keeper existed.

Thus Premier is seeking to claim keeper liability one day too soon. For Notices to Keeper issued on a Thursday or Friday, Premier's claim would be three days too soon (and even longer when Bank Holidays are a factor)

Consequently Premier has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the keeper of the vehicle and as such I should not be held liable.

I've gone bog-eyed looking at the calendar - maybe someone can double-check my dates.