Premier Park- help with appeal

Cazilou

I have finally recieved my POPLA code and in the process of writing my POPLA appeal. I was going to use the periods of grace as another point as the driver was only in the car park for 7 minutes and left the car park upon reading the sign (which was very badly lit and too small to read without leaving the car). The BPA states that each operator must tell the BPA their periods of grace but I don't know if there is anywhere that I can find out what the period of grace for Premier Park would be and whether there would be any point in me including this as a point in my appeal. I have no idea what a "usual" grace period would be. Does anyone have any ideas?

Cazilou

I thought I was ready to submit my appeal and was about to submit. Go on to the popla website to submit and find that they have a complicated "which section does your appeal fall under" style website. Not helpful. I found Couponmad's post on another thread about submitting under 'other' as a pdf but I am a bit confused on how this works. What do you put in the 2000 word explanation box? Can I just upload the pdf with photos and leave the box blank? Do I write my summary in the box? Surely with the amount of people using this option they should make it easier!

Guys_Dad

How about "Appeal attached as a pdf" in the box?

Fruitcake

Cazilou wrote: »

I have finally recieved my POPLA code and in the process of writing my POPLA appeal. I was going to use the periods of grace as another point as the driver was only in the car park for 7 minutes and left the car park upon reading the sign (which was very badly lit and too small to read without leaving the car). The BPA states that each operator must tell the BPA their periods of grace but I don't know if there is anywhere that I can find out what the period of grace for Premier Park would be and whether there would be any point in me including this as a point in my appeal. I have no idea what a "usual" grace period would be. Does anyone have any ideas?

The BPA CoP states that the operator must allow two grace periods. One of undefined length at the beginning of the parking period, and one at the end that must be not less than ten minutes. Search the BPA CoP and quote the relevant parts, then point out how the operator has failed to comply.

Fruitcake

Guys_Dad wrote: »

How about "Appeal attached as a pdf" in the box?

Do as advised by GD.

Take screenshots when you send it and/or a video from a camera/'phone.

Cazilou

Arghhh thats annoying, I was banking on the non compliant NTK to definitely go through and just adding extras to make my point, have to make sure that all my other points are correct then (not that I wouldn't have already!) Where does it say about 31 days?

I couldn't find anything about how long a grace period should be. The section in the BPA CoP just says the operator should have one and it should be supplied to the BPA.

I have taken lots from other posts but the bit about signage and grace periods is all from scratch so please tell me if there is anything I need to revise. My appeal so far is below:

Appeal against Premier Park Ltd. Parking Charge Notice ****** received 29/09/16

On the 29/09/2016, I, the registered keeper of this vehicle, received a letter dated 23/09/2016 acting as a notice to the registered keeper (Figure 1). I appealed to Premier Park as the registered keeper on 4/10/16 and received an email denying my appeal dated 31/10/2016. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.
2. Inadequate and unclear signage
3. Premier Park has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court.
4. No period of grace given for the driver to read the additional signs within the car park.

1. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.

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 Park’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 vehicle to which the notice relates. The vehicle registration is displayed, but no make, model, or colour is specified.

• 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.

Premier Park insinuates that they do not know the name or address of the driver through their request to the keeper to part with that information. ”If you were not the driver we ask you to supply the full name and current serviceable postal address of the driver so that we may address this request to them.” This however, is not a statement of lack of knowledge regarding the name and service address of the driver. While Premier Park does ask the keeper to pay the unpaid charges and supply a name and address for the driver, they do not ask them to pass on the notice to the driver.

• Contrary to the requirements of Sch.4 Para 9 (2) (f) The notice to keeper does 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".
Rather stating "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." There is a clear discrepancy in the period to which the keeper has to fulfil this requirement.

Consequently, Premier Park 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.

2. Inadequate and unclear signage
The BPA Code of Practice (CoP) (18.2) states that "as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area." The entrance sign to this car park (Figure 2) clearly contravenes the requirement that "entrance signs must follow some minimum general principles and be in a standard format."

Figure 2- Entrance sign

The BPA CoP (App. states that "ideally the AOS logo should be incorporated to indicate that the parking is managed under a Code of Practice." As this sign clearly shows the AOS logo it is expected that this sign should follow the guidelines set out in the Code of Practice.

The BPA CoP (App. clearly states the standard wording that should be used on entrance signs. The standard wording is classified in two groups shown below:

Group 1
Pay and display [except/free for blue badge holders]
[x minutes’/hour’s/hours’] free parking [for [business name] customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for [business name] customers only
Permit holders only

Group 2
Charges apply [after this][after x minutes/hours]
Private land
Terms and conditions apply
See the notice [in the car park] for details

The BPA CoP states that "there must be at least one item from Group 1" and also states that "if one of the following standard wordings applies to your parking area you should use it. If not, you may alter the wording to fit the situation. Words in square brackets may be left out." The entrance sign to this car park (Figure 2) does not include any text from Group 1 or a variation thereof. As Premier Park have stated in their NTK this is a private car park for Vets 4 Pets customers, the text "Parking for [business name] customers only" clearly applies in this instance. The business name does not have to be included but I would expect "Parking for customers only" to be prominent on the sign. Had this information been included, the driver would more than likely have not entered the car park.

Figure 3- The entrance sign as viewed from a car on the road.

Furthermore, the BPA CoP (App. also states that "signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times." At the time of the alleged offence it is clearly dark, as shown in the pictures supplied on the NTK by Premier Park. As shown in figure 3, the entrance sign is not illuminated "by direct lighting or by using the light from the car park" and is not "made of a retro-reflective material similar to that used on public roads" as suggested in the BPA CoP (App. . It would therefore have been very hard for the driver to have seen this sign, particularly as the BPA CoP (App. also states that "the sign should be placed so that it is readable by drivers without their needing to look away from the road ahead."

3. That Premier Park has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court.

I do not believe that Premier Park has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, Premier Park must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 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 contend that Premier Park merely holds a basic licence to supply and maintain signs and to post out 'tickets' as a deterrent to car park users. I therefore require Premier Park to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner, in accordance with the BPA Code of Practice. This is required so that I may be satisfied that this contract permits Premier Park to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


4. No period of grace given for the driver to read the additional signs within the car park.

The BPA Code of Practice (13.1) states that parking operators "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." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The entrance sign (Figure 2) states that the driver should "see additional signs for full details". The additional sign (Figure 4) is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Figure 4- The additional sign within the car park

As previously mentioned, the alleged offence was in the hours of darkness at which time it would have been very difficult for the driver to have seen and read the additional sign within the car park. As seen in figure 4, the sign is small and positioned high on a wall, with small text which would be extremely difficult to read from within the car, especially with only a small amount of ambient light from the surrounding area. In this instance, the time required for the driver to pull up and read the terms and conditions on the sign would be significantly longer than the equivalent in daylight hours. In this instance, 7 minutes was the time which the driver required to safely park and exit the car and to read the terms and conditions on the sign, to then return to the car and exit the car park.

I require Premier Park to provide POPLA with their specific grace period for this car park, so as to know whether the 7 minutes in which it took for the driver to enter the car park, read the sign and exit the car park, was within the grace period set out by the operator. I would also ask POPLA to take in to consideration the points made above regarding the ability to read this sign in the hours of darkness when deciding whether the grace period was appropriate.

In summary:

• Premier Park has not fulfilled the keeper liability requirements as laid down in the POFA, and therefore keeper liability cannot be applied.
• As the registered keeper, I retain my legal right not to name the driver of the vehicle at the time of the alleged breach of contract.
• The signage at the site in which the offence was alleged to have taken place was inadequate and therefore the driver would not in any instance have been able to agree to a contract to then breach.
• A grace period does not seem to have been granted in this instance.
• There is doubt over Premier Park’s authority to issue tickets or pursue charges in the courts in their own name.

Cazilou

Also I know GPEOL is dead in the water but would it be worthwhile making the point that the business which this is a private car park for was shut at the time of the alleged offence? The driver would not have been able to, even if a genuine customer not realising the business was closed, register their details with the business to secure the free parking. Does this make sense?

Coupon-mad

Cazilou wrote: »

Also I know GPEOL is dead in the water but would it be worthwhile making the point that the business which this is a private car park for was shut at the time of the alleged offence? The driver would not have been able to, even if a genuine customer not realising the business was closed, register their details with the business to secure the free parking. Does this make sense?

Yes, to me that second bit does make sense, especially as the car was only there seven minutes from arrival to driving out. Clearly they did not accept any contract terms and having read the unclear signs, realised that they could not have registered for free parking either, so they left.

We'll now have a look at the POPLA appeal so bear with us and check for comments.

Where does it say about 31 days?

It's a matter of simple maths:

''4 (4) The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given''.

then:

9 (6) ''A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.''

So, what date of issue is on your NTK and what was the parking event date?

Fruitcake

Cazilou wrote: »

I couldn't find anything about how long a grace period should be. The section in the BPA CoP just says the operator should have one and it should be supplied to the BPA.

From the BPA CoP, version 6 2015.

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.

Coupon-mad

I would add this to the 'Grace Periods' appeal point:

The sign at the entrance to this car park are small and only the 'welcome' and 'P' sign are visible from the road, especially at night when this ticket was issued.

The signs inside the car park are also small and not legible in the dark from a driver's seat. At the point of being finally able to read the terms, the driver would need to be already inside the car park and standing under a sign (unlit) with the vehicle merely temporarily stopped - i.e. certainly not 'parked' as confirmed by the Senior Circuit Judge in the Appeal case in June 2016 of JOPSON V HOME GUARD SERVICES (transcript uploaded separately)*, case number: B9GF0A9E.

This case, being a higher level appeal, is persuasive on the lower courts (i.e. it supersedes other decisions) and it was held:

''20: Neither party was able to direct the court to any authority on the meaning of
the word “park”. However, the Shorter Oxford Dictionary has the following:
“To leave a vehicle in a carpark or other reserved space” and “To leave in a
suitable place until required.” The concept of parking, as opposed to
stopping, is that of leaving a car for some duration of time beyond that needed
for getting in or out of it, loading or unloading it, and perhaps coping with
some vicissitude of short duration, such as changing a wheel in the event of a
puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams
would consist of lines of parked cars.''

21: I am quite satisfied, and I find as a fact, that while the appellant’s car had
been stationary for more than a minute and without its driver for the same period
(whatever precisely it was), while she carried in her desk, it was not “parked”.
Accordingly, for that reason too, the appellant was not liable to the charge
stipulated in the respondent’s notice.''

So, in this case, the driver cannot possibly be fairly bound to be (somehow) already in breach of an alleged 'parking contract' that they didn't have knowledge even existed, having relied upon a visible 'P' and 'welcome' sign which - in the absence of other terms at the entrance - positively invites parking. They had no idea they were being timed outside the entrance as the VRN was captured on the approach road (not even within the boundary at that point, although in fact the photo 'evidence' makes it impossible to tell where the car was). Further, the business within this car park was closed at the time, so the driver would not have been able to register with the business to secure free parking in any event. They were unable to accept any contract and left as soon as they knew that.

On the balance of probabilities the actual time stopped to read the sign in the dark, then decide NOT to stay or be held by any 'contract' was a mere 3 or 4 minutes. This sort of 'immediate fine' entrapment is what the BPA mandatory 'Grace Periods' exist to avoid. The seven minutes (all told) including the time to drive in and out, is perfectly reasonable:

From the BPA CoP, version 6 2015.

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.

I am going to have a think about additional wording for the 'No Keeper Liability' point as we really need to start nailing this (right into the POPLA Assessor's head - not literally!).

Can you please state here:

- what 'date of issue' is on your NTK and

- what was the parking event date?

- and when was it received?

- and are the photos taken within the car park boundary or is it impossible to tell? Could the car be in fact just outside on the road, turning in?






* download the Jopson transcript in its entirety here and save it and upload it as a second PDF when you upload your actual appeal PDF:

https://bmpa.zendesk.com/hc/en-us/articles/213077149-Milton-Keynes-woman-secures-landmark-victory-for-flat-tenants-in-parking-dispute