POPLA appeal for Premier Park

Cazilou

Hi everyone,

It seems like it has taken forever to get this sorted and it feels like I have read a million threads to get ideas but I think I finally have a draft of my POPLA appeal.

Can anybody glance over it and just check that I have included all the information needed and that the terms make sense, I am new to all this and don't want to shoot myself in the foot by sending it and my wording be my downfall, I never was good at writing essays!

Appeal against Premier Park Ltd. Parking Charge Notice received 25/09/16

13/11/16
POPLA Code:
Vehicle Registration:

On the 25/09/2016, I, the registered keeper of this vehicle, received a letter dated 23/09/2015 acting as a notice to the registered keeper (Appendix A). I appealed to Premier Park as the registered keeper 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 (Appendix clearly contravenes the requirement that "entrance signs must follow some minimum general principles and be in a standard format."

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. But no more than three items from Group 1 should appear before, and more prominently than, text from Group 2." 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 (Appendix 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.

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 Appendix C, the view of the entrance sign from the road as a driver would have seen it, 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 (Appendix states that the driver should "see additional signs for full details". The additional sign (Appendix D) 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 signs and decide whether to adhere to the terms of the contract or leave 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 Appendix D, 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 alluding to 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.


I can't add the pictures but these are what I plan to include:
APPENDIX A- Copy of NTK (scanned)
APPENDIX B- Photo of entrance sign
APPENDIX C- Photo of entrance sign from the road in the dark
APPENDIX D- Photo of additional sign within car park in the dark

If that isn't enough of an argument I could also include a point about the genuine estimate of loss as the car park is a free private car park for a vets practice that was shut at the time of the alleged offence so my car being in their car park for 7 minutes has in no way had any impact on the business to have incurred a loss. I spent so long on the rest of this and I am currently poorly so I would rather not write more if there is no real need but if it helps my case I will happily include it.

Redx

not a gpeol is dead in the water since the BEAVIS case ended 12 months ago, so no , you dont need to include it

as for this new thread, it should not have been started, you should have posted the above on your old thread here , as a new post

https://forums.moneysavingexpert.com/discussion/5534325

pm crabman or soolin and ask them to merge the 2 threads into one please

ie:- one topic , one ongoing thread only
thank you

Cazilou

Thank you, I apologise for starting a new thread, I find this forum very hard to navigate and was getting frustrated trying to find posts so a new thread seemed logical at the time. I will continue using the original thread now