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Permit Holders Only Premier Park

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  • DoaM
    DoaM Posts: 11,863 Forumite
    10,000 Posts Fifth Anniversary Name Dropper Photogenic
    If you can get a POPLA appeal done today you'll probably still be OK.
  • Coupon-mad
    Coupon-mad Posts: 151,893 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    This week will be OK, even at the weekend. But only just.

    STOP FAFFING AND SHOW US YOUR DRAFT - IT'S EASY - ALREADY WRITTEN FOR YOU, JUST PUT IT TOGETHER.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • intex310
    intex310 Posts: 117 Forumite
    Seventh Anniversary 100 Posts Name Dropper
    edited 23 March 2017 at 8:48PM
    POPLA Ref #######
    Premier Parking Charge PCN no #####

    A notice to keeper was issued on 16 January 2017 and received by me, the registered keeper of KM10..... for an alleged driver’s liability for a parking charge at Service area, #### High Street, Hounslow, #### from the Premier Park Ltd. I am writing to you as the registered keeper of the vehicle associated and would be grateful if you would please consider my appeal for the following reasons.
    Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied to the vehicle stopped. The signage cannot be read safely from a moving vehicle.
    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) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

    I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

    Understanding keeper liability
    “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.

    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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

    2) The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time.

    As a POPLA assessor has said previously in an adjudication
    “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

    The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Premier Park Ltd is now demanding, rather than simply the nominal amount presumably due in a machine on site.

    The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. Furthermore section 18.10 states the requirement for signage close to disabled parking bays so that disabled motorists can view them without needing to leave their vehicle. As Premier Park Ltd’s own photographs show, the vehicle in question was parked in a disabled bay, with a valid Blue Bade clearly evident on the windscreen, yet no signage is evident in the vicinity of the bay.

    Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Premier Park Ltd did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.

    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 neither 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:

    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:

    2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg
    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:

    -archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    .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:

    .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:

    .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.


    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 resident/customer” 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 authorised 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 they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3. 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

    Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.


    Yours sincerely

    #############
    Registered Vehicle Keeper
  • intex310
    intex310 Posts: 117 Forumite
    Seventh Anniversary 100 Posts Name Dropper
    imgur.com/a/gn11e?[/url]

    this was d pic of the area I got after couple of days
  • intex310
    intex310 Posts: 117 Forumite
    Seventh Anniversary 100 Posts Name Dropper
    I will remove the disabled badge bay which i copied. Also they completely ignored to notify about the ownership of the parking area in my previous appeal.

    Is there any reference I could mention about the "Permit Holders' Only" in my appeal?

    Thank you guys for your kind cooperation.
  • Fruitcake
    Fruitcake Posts: 59,463 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    You need to put in numbered headings then repeat those at the beginning of each appeal point. I couldn't work out where one point ended and the next began so I don't expect a PoPLA assessor will either.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • intex310
    intex310 Posts: 117 Forumite
    Seventh Anniversary 100 Posts Name Dropper
    Sure. that's done! Thank u!
  • Fruitcake
    Fruitcake Posts: 59,463 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 23 March 2017 at 8:44PM
    intex310 wrote: »
    Sure. that's done! Thank u!

    Show us the updated version please. I can't follow the one you have above.

    Embed your pics and the beavis pics so that the assessor has to look at them.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • Fruitcake
    Fruitcake Posts: 59,463 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 23 March 2017 at 8:48PM
    Fruitcake wrote: »

    Was that taken with flash? It is difficult to read anyway so I would say it meets the definition of inadequate signage, but if it was taken with flash, then try to get another pic at the same time as the driver parked without the use of flash.

    You should also complain to your MP, Mrs May, and Andrew Jones MP about this unregulated scam industry.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • intex310
    intex310 Posts: 117 Forumite
    Seventh Anniversary 100 Posts Name Dropper
    http://intex310.imgur.com/all/

    embedded all together in this one. No, flash was not used.
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