Premier Park- help with appeal

Coupon-mad

Yes that will do, it will be interesting to see if POPLA change their view on PPA NTKs following the formal complaints flying in about their wrong claim for keeper liability, including at least two complaints made to the DVLA pointing out that other PPCs were banned for claiming keeper liability when it did not exist.

Cazilou

Thank you everyone that has helped. I will post back when I have a response from POPLA. Fingers crossed they see sense

Cazilou

OK so I received the evidence pack from premier today. It has all the usual stuff and then in reply to my point about signage it shows pictures of the signage, all taken in daytime or at dusk (none at night). It also states that the signage is not lit but is lit by the surrounding businesses, although at the time of the alleged offence these businesses were closed and all lights off meaning there was no way these businesses could have lit the signs like they show in the photos. They also give a 5 minute grace period as sufficient to read the signs but if it takes this long in the daytime surely an extra 2 minutes allowance would be appropriate in darkness. I don't know if I need to reiterate these points in response or as it is just covering points I have already said in my appeal if it is just pointless. Or if I am going to respond how is the best way to do this? How would I set it out etc?

Edna_Basher

POPLA are continuing to make ridiculously poor decisions on Premier Park cases (some of which are due to bad advice percolating down from the Lead Adjudicator himself).

Therefore, a strong rebuttal of Premier's evidence is very important. Try to keep your rebuttal as clear and concise as possible – however, in the current circumstances you will need quite a bit of detail in respect of Premier’s non-compliance with POFA.

Here are some words to set you on your way.

Dear POPLA,

POPLA Ref: 666xxxxxxx

I write to confirm that the Operator has now provided me with a copy of its Evidence Pack in respect of the above-detailed POPLA case. For the sake of helping POPLA to conclude this case without delay, I set out a short rebuttal of the Operator’s evidence as follows:

The Operator’s Non-Compliance With POFA

POPLA has promised that my appeal will be independently reviewed by one of your professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice.

You will appreciate that the Consumer Rights Act 2015 (“CRA 2015”) is relevant law in these circumstances. I draw POPLA’s attention to CRA 2015, Paragraph 69 (Contract terms that may have different meanings):

http://www.legislation.gov.uk/ukpga/2015/15/section/69/enacted

This is very clear in stating that if a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer must prevail.

Thus it is clear that POPLA, in consideration of the relevant law, has an obligation to interpret the wording of the Operator’s Notice to Keeper in the way that most favours the consumer.

In my original submission to POPLA, I highlighted that the Operator’s Notice to Keeper claimed that if within 29 days, it had not received full payment or driver details it had the right, subject to POFA to recover unpaid parking charges from the keeper. I explained that this wording did not comply with Paragraph 9(f), Schedule 4 of POFA which requires that a Notice to Keeper must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given etc.

The most favourable interpretation of the term “within 29 days” is that it refers to the date of the Notice to Keeper’s issue, not the date of its delivery. By virtue of the CRA 2015 it is not within POPLA’s gift to interpret the wording in any other way.

Furthermore, I draw POPLA’s attention to section entitled “Contesting the parking charge” on the reverse of the Operator’s Notice to Keeper. This states that “if you would like us to review this parking charge, within 28 days of receipt of this letter please either.......”. In this instance, the Operator made a conscious decision to specify that the period was measured from the date of delivery of the Notice to Keeper. Had the Operator intended that the term “within 29 days” should also apply from the date of delivery, the Notice to Keeper would surely have been explicit in stating so.

Thus, in accordance with the relevant law, POPLA has no option but to conclude that the Operator failed to comply with POFA. For this reason alone, I reasonably expect my appeal to be allowed.

etc.......


You can add further points in turn - including questioning Premier's evidence of its authority to operate (did the evidence pack include a copy of a contract or just a witness statement?) and its poor signage etc.

Coupon-mad

Nice one, Edna Basher!

Cazilou

Thank you Edna Basher, I will get started on formulating something, that's a great starter though. They sent a contract of sorts, but I wouldn't have a clue what I am actually looking for in whether it follows the exact guidelines, I will have to look over it closely and compare with the bpa guidelines and see if it includes everything needed, it doesn't look very professional to me, looks like something that could have just been knocked up last night for all I know!

Cazilou

OK I have tried to put something together using your wording for the first bit Edna Basher, but I feel that I have been very waffly for the other parts and I can't seem to get across what I am trying to say. Can anyone help me to tidy it up? Is there anything else I need to mention? I have looked at the contract that they provided but like I said I don't really have a clue what I am looking for and it looks ok to me but it could be just knocked up yesterday for all I know! Is there anywhere I can find an example of what I should be looking for to compare and contrast? Thanks guys you are brilliant

Dear POPLA,

POPLA Ref: 666xxxxxxx

I write to confirm that the Operator has now provided me with a copy of its Evidence Pack in respect of the above-detailed POPLA case. For the sake of helping POPLA to conclude this case without delay, I set out a short rebuttal of the Operator’s evidence as follows:

The Operator’s Non-Compliance With POFA

POPLA has promised that my appeal will be independently reviewed by one of your professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice.

You will appreciate that the Consumer Rights Act 2015 (“CRA 2015”) is relevant law in these circumstances. I draw POPLA’s attention to CRA 2015, Paragraph 69 (Contract terms that may have different meanings):

http://www.legislation.gov.uk/ukpga/2015/15/section/69/enacted

This is very clear in stating that if a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer must prevail.

Thus it is clear that POPLA, in consideration of the relevant law, has an obligation to interpret the wording of the Operator’s Notice to Keeper in the way that most favours the consumer.

In my original submission to POPLA, I highlighted that the Operator’s Notice to Keeper claimed that if within 29 days, it had not received full payment or driver details it had the right, subject to POFA to recover unpaid parking charges from the keeper. I explained that this wording did not comply with Paragraph 9(f), Schedule 4 of POFA which requires that a Notice to Keeper must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given etc.

The most favourable interpretation of the term “within 29 days” is that it refers to the date of the Notice to Keeper’s issue, not the date of its delivery. By virtue of the CRA 2015 it is not within POPLA’s gift to interpret the wording in any other way.

Furthermore, I draw POPLA’s attention to section entitled “Contesting the parking charge” on the reverse of the Operator’s Notice to Keeper. This states that “if you would like us to review this parking charge, within 28 days of receipt of this letter please either.......”. In this instance, the Operator made a conscious decision to specify that the period was measured from the date of delivery of the Notice to Keeper. Had the Operator intended that the term “within 29 days” should also apply from the date of delivery, the Notice to Keeper would surely have been explicit in stating so.

Thus, in accordance with the relevant law, POPLA has no option but to conclude that the Operator failed to comply with POFA. For this reason alone, I reasonably expect my appeal to be allowed.

Inadequate and Unclear Signage

Premier Park have stated that their signs are 'readable and understandable at all times, including during the hours of darkness or at dusk. There is no direct lighting but the parking area is lit from surrounding businesses and street lighting.' The only business that could possibly provide lighting to the signs in this car park is a 'Subway' which is clearly shown in the photos provided by Premier Park and sits directly on the edge of the car park. At the time of the alleged offence this business was closed. There were no lights from this business and therefore this could not be relied upon to light the signs in this car park. This leaves street lighting- on the pavement not directly outside the vicinity of the car park- which is not sufficient to light the signs within this car park.

The photos provided by Premier Park clearly show the signs in the hours of daylight and also at dusk (having had to use the flash to illuminate the signs even in just low light). They have provided no evidence of the visibility of these signs in the hours of darkness. The photos of the signs taken at dusk- which Premier Park have provided- are still extremely difficult to read even with the flash of a camera illuminating them. As I understand it is not a legal requirement for a driver to carry a torch with them at all times, the driver in this instance was not carrying anything which they would have been able to use to illuminate these signs adequately, and the signs are too high on the wall for the car headlights to be used to illuminate the signs.

Premier Park have stated that the signs 'have been approved by the BPA Auditing Team' however as previously stated in my original submission to POPLA, the entrance sign does not follow the guidelines stated in the BPA Code of Practice. Premier Park have not given evidence to the contrary in considering this point in my appeal, and have only provided a photo of the sign which shows the incorrect wording choices. Premier Park have stated that they 'have placed a number of signs around the location' however the entrance sign is the only one (barely) visible to drivers from the road before being recorded on the APR cameras and regardless of the amount of signs within the car park, this sign should clearly state the correct wording to deter drivers from passing the point where being recorded on the APR cameras.

Furthermore, as part of their evidence, Premier Park have stated that 'The Appellant has not denied seeing said signage'. While it is true that I, the registered keeper, since receiving an NTK have visited the site and read and taken photos of the signage, it cannot be implied that I was the driver at the time of the alleged offence. The driver had not seen the entrance sign, and had the driver seen this sign they would more than likely have not entered the car park.

Grace Periods

Premier Park state that they 'allow a 5 minute grace period', presumably for drivers to read the signage at the site and decide whether to park or to leave the site. Premier Park also say that their signs are 'readable and understandable at all times'. Therefore, given that the signs at the time of the alleged offence were actually difficult to read, surely an extra 2 minutes allowance for the extra time taken to read these signs would be appropriate in this case. The BPA code of practice states that '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.' In this instance, it is a fact that this is exactly what the driver did, regardless of whether it took 5 minutes or 7 minutes to do so. The fact that the driver may have been slower at reading the signs due to low lighting will surely not make any difference to the fact that the driver did not park the car, merely stop to read the signs before leaving the car park.

Coupon-mad

I would try to reduce it a bit, less of the 'furthermores' and more bullet points, and if your seven days is up since POPLA said THEY had got the evidence, you will have to email it because the Portal will be closed to you. It has a limited word-count anyway.

Cazilou

Thanks coupon mad, I have reduced it and it flows better now. I received both emails from Premier and POPLA on Monday. So I am assuming the portal should be still open to me until at least Sunday? Can't get into it at the moment, it comes up with a request error and says come back later. Does this mean that it has already closed or is it a genuine error on the website? If it has already closed then there is a definite flaw in their understanding of timescales!

Edna_Basher

I'd also send your rebuttal by e-mail to info@popla.co.uk

Include in your e-mail a covering note asking POPLA to acknowledge receipt of your rebuttal and also to confirm that it has been added to your case file.