NTK from Premier Park LTD...When will the PPCs learn and stop lol ?

stephenliverpool1

Coupon-mad wrote: »

PP are so stupid not to have amended their NK wording re the 'POFA 29 days/driver details' as they are doomed to fail every time a forumite appeals as keeper! Their desperate letter asking who the driver was is always a source of amusement too.

Their letter (which I assume is a NTK) quotes 'POFA 29 days/driver details' in the text. Should I reference this in my POPLA appeal as/when they send me a POPLA code ?

Coupon-mad

Of course, that's your silver bullet. POPLA will agree if you spell it out and this has already been done loads of times.

See the PP wins in the POPLA Decisions thread over the Summer, or search 'Premier POPLA' and find one someone wrote recently.

stephenliverpool1

Coupon-mad wrote: »

Of course, that's your silver bullet. POPLA will agree if you spell it out and this has already been done loads of times.

See the PP wins in the POPLA Decisions thread over the Summer, or search 'Premier POPLA' and find one someone wrote recently.

Many thanks as always CM.

I have already created my POPLA appeal after your advice. I won't get any people's views (unless POPLA change their stance over the next few days) as I am sure that I will win. I just need PP to give me a POPLA code now. Won't be chasing lol !!

stephenliverpool1

The deadline has now passed so PP Ltd should now give me a POPLA code. How long should I wait before escalating to the BPA that PP Ltd have not supplied me with a POPLA code and what is the email address for the BPA and the DVLA ?

Thanks

Coupon-mad

aos@britishparking.co.uk

and copy in

david.dunford@dvla.gsi.gov.uk

I would wait a bit longer, maybe the end of the month for them to respond because they will tell the BPA that they were 'allowing you' two full weeks to tell them who was driving. So I reckon the rejection letter will appear next week.

stephenliverpool1

I am fed up with waiting for a POPLA code so I have escalated to BPA and DVLA as advised above.

I have not advised who was driving.

Coupon-mad

Be aware someone at pepipoo has just had a wrong decision from POPLA about keeper liability with this woeful NTK:

http://forums.pepipoo.com/index.php?showtopic=108086&st=20&start=20

So the usual wording he used will need to explain even more clearly for the Assessors, why the fact that PP have changed their wording from 'within 28 days' to 'within 29 days' is STILL wholly wrong in terms of the deadline, which in fact (as we all know) is ''after the period of 28 days beginning with the day after that on which the notice is given''.

Not 'within 29 days' which could be anything between one day out to three days out (or more if given later) and CANNOT be correct.

stephenliverpool1

Any comments please before I submit it as/when I get a POPLA code :

'Premier Park Ltd PCN number : ???????
POPLA Unique Reference Number :???????????????


I am the registered keeper and I wish to appeal a recent parking charge from Premier Park Ltd. The charge is levied despite the driver declining the parking contract offer by leaving the site.

POPLA is reminded that a registered keeper having been made aware of a 'notice to keeper' CAN appeal at that stage and the fact that I chose to, cannot lawfully be taken to be an appeal from 'the driver'. In fact, the driver has never been identified.

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

1) The minimum grace period was not allowed by the Operator
2) This case can be distinguished from Parking Eye v Beavis. There is no commercial justification possible and the signs fail to meet the bar set in the Beavis case
3) Premier Park Ltd's Notice to Keeper failed to meet the strict requirements of POFA
4) No standing or authority to pursue charges nor form contracts with drivers.
5) The Premier Park Ltd warden is neither reliable nor accurate
6) The charge of £100 plus £1.80 for card payment exceeds the appropriate amount specified in law

1) The minimum Grace Period was not allowed by the Operator

British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 Your approach to parking management must allow a
driver who enters your car park but decides not to park,
to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 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.
13.3 You should be prepared to tell us the specific grace period
at a site if our compliance team or our agents ask what it is.
13.4 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.
Also, under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers
"…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (18.5).

In this case, Premier Park Ltd have not recorded the time(s) when the car entered or left the car park. At the time the driver was unable to consider the terms of the contract, which were difficult to read at the time due to the extremely small print of the sign and decline the offer. The mention of a minimum of 10 minutes is exactly this, a minimum. The time needed to complete all these actions are dependent on a number of wildly varying factors, including traffic, lighting conditions, driver’s eyesight and driving ability and mental faculties. For this reason, a minimum amount is specified, but the maximum time allowed for these tasks to be completed are not. Further to this, the signage makes no indication of how long a driver may be on the site before a parking penalty will be charged. This leaves the driver uncertain to the terms of the contract, which means that there was no full acceptance of the contract to be breached.

According to the British Parking Association Ltd (“BPA”) Code of Practice, a period of 10 minutes is not adequate. The Code of Practice stipulates the following:

Paragraph 13.2: you should allow the driver a reasonable “grace period” in which to decide if they are going to stay or go.

Paragraph 13.4: 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.

Although Paragraph 13.2 does not specify what constitutes a “reasonable grace period” for a motorist to decide whether to stay or go, this grace period begins when the vehicle enters the car park entrance and must cover:

a) the time to drive into the car park and locate a parking space
b) the time to manoeuvre the vehicle into the parking space (once a space has been located)
c) the time for a driver to locate and walk to the nearest car park sign to the parking space
d) the time taken to read and understand all of the conditions contained on the car park sign; this includes having to read all of the “small print” on the sign.

The BPA Code of Practice considers it reasonable to apply a grace period of a minimum of 10 minutes for a motorist to leave the car park at the end of the parking contract (i.e. for the motorist to get into their vehicle, manoeuvre out of the parking space and drive out of the car park).

Given that more processes are involved in the period before the parking contract is formed (e.g. finding a parking space, locating a car park sign and then reading and understanding the terms on the sign), it is reasonable to conclude that the grace period before the establishment of the parking contact must be more than the minimum of the 10 minutes specified by the BPA Code of Practice as the grace period after the parking contract has ended.

Thus the overall grace period required under the BPA Code of Practice must be more than 20 minutes.

Given that the vehicle was in the car park for just a few minutes, the Operator should not have issued this Parking Charge Notice.




2) This case can be distinguished from Parking Eye v Beavis. There is no commercial justification possible and the signs fail to meet the bar set in the Beavis case.

I do not understand how the result of this court case could possibly be related to Premier Park Ltd’s charge here. The only similarity is that they are both called a 'parking charge' but here, Premier Park Ltd’s charge is penal, unfair and unsupported by any compelling 'legitimate interest' beyond that of the parking firm's own profits alone - which renders it unenforceable.

Parking Eye had control of the car park to enforce a time limit and were expected by the landowner to ensure a regular turnover of parking for customers of retailers. The area of parking in question regarding this Premier Park Ltd’s charge has no such time limit, no customers needing spaces in a busy car park and there is no 'turnover of bays' requirement. Signage is sparse, unlike in the Beavis case.

The signage communicating the £85 charge was found to be very 'prominent' in Parking Eye's case at the Supreme Court, unlike the signage in question here. Parking Eye were also able to show that the complex contractual arrangement in that specific car park was not an unenforceable penalty, only in that case, despite the Judges saying that the penalty rule was plainly 'engaged' in private parking charge cases.

The Supreme Court decision in Parking Eye v Beavis states that the contract is accepted by performance in a driver parking, reading signage and being clearly informed of terms and given a 'valuable' licence to park. Mr Beavis was considered to have read the 'very prominent' terms first which showed the parking charge 'in large lettering' and by the action of parking and leaving his car, he was found to have made a promise which constituted consideration and acceptance of terms. This decision does NOT simply transfer seamlessly to all other types of parking charges and car parks where no licence to park is offered or where no similar commercial 'legitimate interest' exists, without twisting the facts.

Parking charges in less 'complex' cases can very easily be found to be unenforceable penalties, as was discussed at length in the Beavis case;

LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees):

14. …where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’

31. The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. …The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.

32. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimateinterest of the innocent party in the enforcement of the primary obligation. The (operator) can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.

I ask the POPLA Assessor, please - in all fairness to myself as a consumer - to stop and read this point thoroughly before engaging the 'POPLA rationale standard template Beavis paragraph' which simply does not apply across the board. POPLA's template paragraph is already the subject of several complaints to ISPA, being blindly misapplied and unfair to consumers by not considering the facts that set a situation at odds with the Supreme Court findings. The Judges in Beavis made clear that the facts of each case/contract/interest/signs MUST be considered and the official Supreme Court tweeted, on the day of the decision, that their findings related to that car park/those signs/those interests in that case.

In the Supreme Court judgement in Parking Eye v Beavis, it was held that there was no loss to the parking operator, and therefore the doctrine of penalties was engaged. However, the charge in that 'complex' case was saved from being struck out as a penalty, by virtue of unusually clear signs and because it served a 'legitimate interest' relating to the landowner's aim for a turnover of spaces in a free retail park. By contrast, in the case of permit parking, the only legitimate interest lies in ensuring that parking spaces are occupied by genuine tenants, and not abused by random motorists with no connection to, or business within, the property.

The issuing of parking charges to visitors, as in this case, serves no legitimate interest, and therefore the Claimant cannot rely on the Beavis judgment, and it is submitted that the charge will fall foul of the penalty rule. The Beavis case supports that view.


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

In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a Notice to Keeper that fully complies with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why Premier’s Notice to Keeper failed to do so.

• Contrary to the requirements of Sch.4 Para 9 (2) (a), the Notice to Keeper did not specify the period of parking to which the notice relates. It merely stated the time which the vehicle was observed committing the alleged offence; this times do not equate to the start and end of the period of parking.
• Contrary to the requirements of Sch.4 Para 9 (2) (b), the Notice to Keeper did not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
• Contrary to the requirements of Sch.4 Para 9 (2) (e), the Notice to Keeper did not state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.
• Contrary to the requirements of Sch.4 Para (2) (h), the Notice to Keeper did not identify the creditor and specify how and to whom payment or notification to the creditor may be made.

Consequently, Premier has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA may allow my appeal.

Should Premier try to suggest that there is any other method whereby a registered keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators inPOPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https:// popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.......

.......... However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver”.
Contrary to the requirements of Sch. 4 Para (2) (f), the Notice to Keeper did not 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 Notice to Keeper dated 27/9/2016 stated 'if within 29 days we have not received full payment or driver details, under section 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 form the keeper of the vehicle.' The Notice to Keeper is clearly not compliant with Sch. 4 Para(2) (f) as detailed in the previous paragraph.



4) 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.

The Operator has supplied no evidence to prove that it had authority to pursue charges on this land. The Operator has no proprietary interest in the land and had no standing to make contracts with drivers in their own right, nor to pursue charges for breach in its own name.


POPLA may reasonably conclude that the Operator has no such right.

In addition, Section 7.3 of the CoP states:

“The written authorisation 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.''

I therefore put Premier Park Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator 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 which have been properly assigned to Premier Park Ltd.



5) The Premier Park Ltd warden is neither reliable nor accurate.

Premier Park Ltd’s evidence shows no parking time, merely when the alleged parking offence occurred at 1145hrs.

As keeper I cannot discount that the driver may have driven in, realised it was a permit-only car park then driven out after looking at the terms and conditions.


6) The charge of £100 plus £1.80 for card payment exceeds the appropriate amount specified in law

Premier Park Ltd' NTK informs me that any card payment costs an extra £1.80. Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts(Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.
POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

The CC(ICAP) 2013 Regs state:
Additional payments under a contract
(40).—(1) ''Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.''

There was no 'express consent'.

The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:

(4).A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.

£1.80 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:

''Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards. You will pay a monthly fee to rent the payment terminal. You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction.''

This concludes my POPLA appeal.'

Thanks

Umkomaas

Have you used the recent-new templates for POPLA appeals which are in the POPLA Decisions sticky, now 2 or 3 pages from the last page (dated from around late September). They have been penned/approved by Coupon-mad. Copy and paste verbatim if appropriate to your case.

Coupon-mad

Do not have all this stuff (below) going off on random tangents! Not your fault but I hate that example and curse whoever wrote it and managed to MISS the one REALLY obvious flaw in the NTK:

• Contrary to the requirements of Sch.4 Para 9 (2) (a), the Notice to Keeper did not specify the period of parking to which the notice relates. It merely stated the time which the vehicle was observed committing the alleged offence; this times do not equate to the start and end of the period of parking.
• Contrary to the requirements of Sch.4 Para 9 (2) (b), the Notice to Keeper did not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
• Contrary to the requirements of Sch.4 Para 9 (2) (e), the Notice to Keeper did not state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.
• Contrary to the requirements of Sch.4 Para (2) (h), the Notice to Keeper did not identify the creditor and specify how and to whom payment or notification to the creditor may be made.

How could that person who wrote that, have missed 9(2)(f)? Astonishing. That's the one you need to quote in your appeal point #3, quoting from Schedule 4 para 9(2)(f) only and explain even more clearly for the Assessors, why the fact that PP have changed their wording from 'within 28 days' to 'within 29 days' is STILL wholly wrong in terms of the deadline, which in fact (as we all know) is ''after the period of 28 days beginning with the day after that on which the notice is given''.

Not 'within 29 days' which could be anything between one day out to three days out (or more if 'given' later) and CANNOT be correct at all. Not compliant.

And are the photos taken outside the car park boundary on the road? PP sometimes do that, at Berry Head for example. That provides another appeal point that there is no evidence that the car was even in the car park...

And some of their sites fall under Port Byelaws so remind us where this is? Byelaws site?