Parking charge for waiting in car premier park

beamerguy

<Beachcomber> wrote: »

I've just had a response from the PPC. They have not given me a popla code and are basically saying that I must name the driver or they will go after me as the keeper.
How do I get them to give me a popla code?

Premier Park have lied to you, there is no "must" about it

Sooner or later they will send you the code

They do not know who the driver is/was ... keep it that way

<Beachcomber>

@Fruitcake, I took it out because they already got my information from the DVLA. This part looked like it applied to windscreen tickets where they have to request your information from the DVLA, so I thought it had no relevance to my case. I've removed the information in my first post as suggested, thank you.

@Beamerguy ok thank you, I will sit tight for the POPLA code.

(From their reply it sounded like they would not correspond further unless I identified the driver.) I've included their misleading response below:


Re: Parking Charge Notice xxxxxx

We write to acknowledge receipt of your recent online appeal, on behalf of the driver, appealing against the issuing of a Parking Charge Notice (PCN) to the vehicle.

We note your comments and must refer you to the Protection of Freedoms Act (PoFA) 2012, Schedule 4 - Recovery of unpaid Parking Charges. This is available to view online at:
<link>

We must therefore request that the details of the driver of the vehicle at the time of the contravention are supplied; this must include their full name and serviceable UK postal address. If you are unwilling or unable to provide these details the registered keeper of this vehicle will remain liable for this PCN. This information should be provided by xxxx 2017. Please note, Premier Park Limited will not reply to any correspondence until after the above date, if the requested information is not provided.

If we do not receive this information by the date given, the registered keeper of the vehicle at the date of event will be held liable.

If you would like to view our photographic evidence, please visit <link>

Please respond by return or by filling in the Transfer of Liability form on the reverse of the PCN and posting it to Premier Park, PO Box 624, Exeter, EX1 9JG.

Yours Sincerely,
cid:image001.png@01D15F47.91CA8360

The Appeals Team
Premier Park Ltd

beamerguy

<Beachcomber> wrote: »

We must therefore request that the details of the driver of the vehicle at the time of the contravention are supplied; this must include their full name and serviceable UK postal address. If you are unwilling or unable to provide these details the registered keeper of this vehicle will remain liable for this PCN. This information should be provided by xxxx 2017. Please note, Premier Park Limited will not reply to any correspondence until after the above date, if the requested information is not provided.

So they will reply after the threatening date and give you a code

All the help is on this site when you appeal to POPLA

Coupon-mad

You ignore that letter.

<Beachcomber>

I have received the POPLA code. The email had gone into my junk emails and I've only just seen it. I have until the 28th June to appeal to POPLA. I thought I'd found great response template on here, but it appears to be for the '28 days to pay' on NTK, whereas I've received a '29 days to pay' NTK, which I know is still non compliant with POFA. Could someone point me in the right direction? I've got so lost in reading all the threads. Thank you

Coupon-mad

You will have to adapt the one you found, and show us.

A POPLA code lasts for just over 30 days, certainly OK over the weekend till Sunday.

<Beachcomber>

I've included the wording for POPLA below. I'm debating whether I could also raise the issue of the vehicle only being in the car park 21 minutes (for example the driver deciding whether to leave or stay and not leaving the vehicle). I notice POPLA have the following statement on their website under 'Grace periods':

"In an ANPR controlled car park where no statement on the signs indicating that the parking period begins on entry to the car park, as opposed to when a vehicle parks, we may discount the amount of time between entry and parking when calculating the grace period at the end of the contract. This is because the average motorist would assume that a period of parking begins when they park the vehicle, and not when they enter the car park."

Also it is misleading to be charged on entry, but not warned by any signage that charges will be incurred immediately on entering the car park (as there are no barriers, automatic ticketing machines or mention of ANPRs to indicate this.)

I've pointed out that the entrance sign cannot be seen without turning away from the road. (I have photos of this)


I've had to remove all links because I'm a forum newbie. So my source for section 4 of my appeal (which includes all the links) was Kiddos79's (post #32) thread "Premier Park LTD PCN"

Any other points you think I could add or advice on bits which don't help my case would be greatly appreciated.


I write to lodge a formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Premier Park Limited (“Premier”) in respect of an alleged breach of Parking Terms and Conditions at Maritime Car Park on 19th April 2017. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1) Keeper Liability not established – The Notice to Keeper is not compliant with the strict requirements of POFA 2012.
2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
3) Unclear/inadequate and/or misleading signage - The entrance sign is not visible to users approaching the car park without having to turn their head (which breaches the BPA code of practice Appendix . Also in this car park the signs are not prominent, clear or legible from inside the vehicle.
4) There was no valid contract formed between Premier Park and the driver

1) Premier’s Notice to Keeper failed to meet the strict requirements of POFA 2012

Schedule 4, Paragraph 9 of PoFA states the PCN must:
(f) 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 PCN issued states however:

“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.”

This is not consistent with the requirements of Paragraph 9 (f) of Schedule 4 of POFA as demonstrated below:

The PCN is dated Wednesday 26th April 2017.
Notwithstanding that I did not receive the PCN until Wednesday 3rd May 2017, even assuming the PCN was posted on Wednesday 26th April 2017, the date "given" (presumed, unless the contrary is proved, to be the second working day after the day on which it was posted) would have been Friday 28th April 2017.
The period of 28 days beginning with the day after that on which the notice is given would cover the 28 days Saturday 29th April – Friday 26th May 2017.
Therefore Saturday 27th May 2017 would be the first day after this period of 28 days i.e. the first day that the right to recover payment from the keeper existed.

Premier's NTK:

The PCN is dated Wednesday 26th April 2017.
Premier claims the keeper becomes liable "If within 29 days we have not received full payment".
Even if the date of posting is not counted, this 29 day period covers Thursday 27th April – Thursday 25th May 2017 inclusive.
According to Premier, Friday 26th May 2017 would be the first day after this period of 29 days i.e. the first day that the right to recover payment from the keeper existed.

Thus Premier is seeking to claim keeper liability one day too soon. For Notices to Keeper issued on a Thursday or Friday, Premier's claim would be three days too soon, and even longer when Bank Holidays are a factor (which, in this case, a bank holiday is a factor).

Consequently Premier has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the keeper of the vehicle and as such I should not be held liable.

2) 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 customer' or 'genuine resident' 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 authorized 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 that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorization 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


3) Unclear Signage - The entrance sign is not visible to users approaching the car park without having to turn their head (which breaches the BPA code of practice Appendix . Also in this car park the signs are not prominent, clear or legible from inside the vehicle.


Although Premier Park is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, the signs in this particular car park were not sufficiently clear to give proper notice to the driver. As the sign is small and attached to a fence on the far left of the passenger side of the vehicle (on the pavement) leading up to the car park, so would not be visible to a driver approaching from a 30mph road. The entrance is also a sharp bend so it would not be possible to read the sign without the driver turning their head away from the road.
Also it is completely unclear that a vehicle is entering a zone where immediate cost is being incurred. The photo (Figure 1) shows the position where a sign could be clearly placed to warn drivers of the immediate charges. This is the current positioning of the inadequate entrance sign (Figure 2 and Figure 3) A sign at the entrance should make it clear that an Automatic Number Plate Recognition (ANPR) recording is being made, explaining that costs are being incurred immediately and offering a driver the opportunity to simply turn around.
Figure 1 – area where a sign could be placed which is directly in an approaching vehicles line of sight
Figure 2 - Car Park Entrance
Figure 3 - Close up of Entrance sign

BPA code of practice 21.1 states: You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
The sign DOES NOT MENTION ANPR. There is no notice of recording. The entrance sign uses lettering which is too small and therefore illegible to approaching drivers and is positioned in the 'blindspot' of approaching drivers and therefore does not provide any warning at all.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;
Paragraph 68: 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.
Paragraph 69: Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

4) There was no valid contract formed between Premier Park and the driver
As stated in point 3), the sign located at the entrance fails to properly warn/inform the driver of the terms and any consequences for breach. Premier Park have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking.
The only sign located at the entrance has font which is too small to meet the requirements set out in the BPA code of practise and is illegible from a moving vehicle. (Figure 2)
Therefore, there was no contract formed between the driver and Premier Park.
Also in breach of Appendix B (Mandatory Entrance Signs), BPA code of practises, Premier Park have no signage with full terms, which could ever be readable at eye level, for a driver making a decision whether to park a vehicle.
I therefore require contemporary photographic evidence of all of the car park signs, including details of the height at which each of the signs was positioned and the font size of the various wording upon the signs to be provided to POPLA and me.

There was no 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:

-link removed in order to post-


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:

-link removed in order to post-

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

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 entrance sign and the size of lettering.

The letters seem to be no larger than .40 font size going by this guide:

-link removed in order to post-


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

-link removed in order to post-


''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:

-link removed in order to post-

''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 judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

-link removed in order to post-

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.

This concludes my POPLA appeal.

Yours faithfully,

<Beachcomber>

It seems like the wording is long enough to make people lose the will. If you have read it, thank you (as I know it's painfully long). If there's nothing else that anyone thinks I should add or remove/change. Then I'm going to have to send this tonight, as I'd like to sort it before the code runs out
Fingers crossed. Thanks everyone.

Coupon-mad

OK, let us know if they contest it and the evidence they show. PD sometimes win POPLA appeals, as POPLA got persuaded by someone that 'within 29 days' was good enough, when 'within 28 days' had not been! Neither are right, but hey, this is POPLA.

Bottom line, people who lose at POPLA still don't pay, no reason to do anything. But let's see their evidence next month.

<Beachcomber>

Ok I've had a notification from POPLA showing the evidence which PP have provided. It's a 31 page document so I'm not sure of the best way of sharing the evidence? I've got no idea what to comment on it to be honest.