Premier Park LTD PCN

Kiddo79

Thanks Edna. I double checked the dates and they seem to add up. Here is my final draft. I would like to send this today so if nobody can see anything blindingly obvious that's wrong with it wish me luck!

Thanks again for everyone's help, i really do appreciate the time everyone has spent helping and lets hope there is a positive outcome!

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.


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 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 Tuesday 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.


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.

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 synchronized on a daily basis. On the balance of probabilities the car left within 10 minutes of expiry according to 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 few minutes behind the P&D machine’s clock. 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 also 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,

The_Deep

They have lied to you and breached their COP. I would be inclined not to jump through their hoops but challenge them to take you to court where you will put in a counter claim for wasting your time.

Kiddo79

Decision: Successful
Assessor Name: Amy Butler
Assessor summary of operator case
The operator’s case is that the appellant’s parking session has expired or was unpaid.

Assessor summary of your case
The appellant has raised several grounds of appeal. These are as follows:
Keeper Liability not established – The Notice to Keeper is not compliant with the strict requirements of the Protection of Freedoms Act (PoFA) 2012.
Grace periods have not been applied.
No evidence of Landowner Authority.
Unclear signage.

Assessor supporting rational for decision
The operator has provided photographic evidence of the terms and conditions, as displayed at the site. The operator has provided images from the Automatic Number Plate Recognition (ANPR) system, which shows the appellant’s vehicle ********* entered the site on 29 August 2016, at 12:20 and exited the site at 14:36. The appellant remained at the site for a period of two hours and 16 minutes. The operator has issued the Parking Charge Notice (PCN) as the appellants parking session had expired or was unpaid. The appellant has raised several grounds of appeal. These are as follows: • Keeper Liability not established – The Notice to Keeper is not compliant with the strict requirements of the PoFA 2012. • Grace periods have not been applied. • No evidence of Landowner Authority. • Unclear signage. As the appellant has questioned the operator’s authority to issue the PCN, I would expect the operator to provide a copy of the landowner agreement in response to this ground of appeal. Section 7 of the British Parking Association (BPA) Code of Practice (CoP) sets out the requirement for operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided a copy of the landowner agreement; however the operator has redacted the names of the people who have signed the contract. As I am unable to determine who has signed the contract, I am unable to conclude if the PCN has been issued correctly. Accordingly, I must allow the appeal.

Thanks for all your help guys! :j

Redx

lol , they lost partly due to redaction, a classic !!!

a bit like Excel recently who lost in court due to redacting all the VRM details on their paperwork !!

Umkomaas

Redaction = something to hide in this game!

Latics20

I got done by them too I was at physio and didn't know I had to register my number plate as the girl on reception never said anything! So after two failed attempts to appeal which I thought would be upheld straight away because I was actually in the building and had proof they are now telling me they are going to take me to court in some scare letter! So I've been doing all I can to actually speak to someone instead of the automated 0871 number and found another company number leading to a management number so definitely worth a shot at complaining at the top! 01384 913091

Coupon-mad

Latics20 wrote: »

I got done by them too I was at physio and didn't know I had to register my number plate as the girl on reception never said anything!

So after two failed attempts to appeal which I thought would be upheld straight away because I was actually in the building and had proof they are now telling me they are going to take me to court in some scare letter!

So I've been doing all I can to actually speak to someone instead of the automated 0871 number and found another company number leading to a management number so definitely worth a shot at complaining at the top! 01384 913091

You need to start your own thread, but not if you are only getting debt collector letters:

https://forums.moneysavingexpert.com/discussion/5035663

Spare us any threads about debt collector letters but come back if you get a claim and start a new thread. We help with defences and we win/get cases discontinued, costs you nothing and several regulars here will always be on hand I'm sure.