POPLA Appeal Help: Premier Park The Salthouse, Clevedon

barnakles

So Premier Park have got back with their evidence pack, including a severely redacted contract with the landowner (all names removed). Mainly however, I would like to rebut their main point which is that, although they accept I paid £5 in total which by the signs covers 5 hours of parking, I should have done it in one transaction. They claim there is nothing on the sign that suggests it is possible to extend parking time by making an additional payment. However, this is not my experience of other ANPR car parks, and indeed there is nothing on the signs to suggest it ISNT possible to extend the parking in this way. Here is their wording, I would appreciate any help in structuring a rebuttal:

The Appellants vehicle entered the site at 11:02 and exited at 15:30.

We can confirm 2 payments were made, the first at 11:08 for 3 hours and the second payment at 14:07 for the duration of 1 hour. Please see Other Evidence.

The Appellant has attached copies of his parking tickets clearly showing each expiry time. Why did he presume that by paying a total amount of £5.00 would this provide him with a 5 hour ticket, when the actual tickets clearly display the correct expiry times?

We can confirm 2 payments were made for the Appellant’s vehicle. The first payment was made at 11:08 for the duration of 3 hours. The second payment was made at 14:07 for the duration of 1 hours. Therefore, the Appellant had paid for 4 hours in total.

Additional time can be purchased via the machine or via RingGo the pay by phone service. However, this does not mean further payments can be added on to previous payments.

Nowhere on the signage does it state if 2 separate payments adding up to £5.00 are made, does this provide the user with 5 hours parking. The Appellant purchased 2 tickets out of the machine and should have used the times stated on the ticket as reference to the expiry time.

To purchase the 5 hour tariff the Appellant needed to pay the sum of £5.00 in one transaction.

We note the Appellant purchased the additional 1 hour prior to exiting the car park. Therefore, he has not paid enough to pay for the additional time parked unpaid.

When purchasing additional time via RingGo, the monetary value is not added together to provide a higher tariff. The expiry times would be key to when the payments expire. This is exactly the same method as when purchasing additional time at the machine.

Therefore, the Appellant should have paid for an additional 27 minutes. Instead of calculating the monetary value from 2 separate transactions.

When entering onto a managed private car park, a motorist might enter into a contract by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore, upon entry to the car park, the driver should have reviewed the terms and conditions before deciding to park.

I still contend that I complied with the terms of parking on the signage, even though the expiry time on my second ticket indicated it was a new ticket, with only an hours parking allowed. At the time I put this down perhaps a more basic operation of the machines, but the system itself would recognize later enough money was paid to cover the total stay. From memory, you enter the reg and feed in the coins, you do not see what the expiry time of your ticket will be until it is printed.

I can provide copies of the signage which clearly show the parking fees.

Coupon-mad

To purchase the 5 hour tariff the Appellant needed to pay the sum of £5.00 in one transaction

Laughable! Where do the signs actually say that, especially if they do mention buying 'additional time'?

I can provide copies of the signage which clearly show the parking fees.

We don't need to see it, and you can't add photos or new evidence at this stage to POPLA.

Your planned comments seem very reasonable.

Certainly point out the heavily-redacted contract with no evidence of who even signed it (the operator themselves?!) and say that re the tariff, £5 is stated as being the tariff for 5 hours' parking time, and there is nothing on the signs to suggest it ISNT possible to extend the parking in this way! The doctrine of contra proferentem works against the trader, because ambiguous terms MUST be interpreted by any court or tribunal (including POPLA) in the way that MOIST FAVOURS a consumer - tell POPLA that too.

nosferatu1001

You must state that, where the signs contain ambiguous terms, the term most favourable to the consumer MUST be the one upheld. POPLA are bound by the Consumer Rights Act 2015 on this, and cannot rule alternatively.

Contract - point out that there is no way to verify that this contract was legally executed, and as such is no evidence of anything.

barnakles

I'm really baffled that the POPLA adjudicator (Alexandra Roby) decided in the operator's favour, she seems not to have addressed the main thrust of my appeal at all - that I did in fact pay £5 which as stated in the signs allows for up to 5 hours. She simply seems to have accepted the operator's contention that I only paid enough for 4 hours parking where it is quite clear on the screenshot of the payment system provided that I paid £5 in total (which the operator does not dispute). In my rebuttal I mainly pointed our that there was nothing on the signs to indicate tickets were not extendable but this was not addressed at all by the adjudicator. I really reel wronged by this decision, and have no faith in POPLA as an independent body. I'll see them in court I guess :-(

The terms and conditions of the site state: “Please pay for your stay. What are the charges? Up to 5 hours…£5.00. If you enter or park no this land contravening the terms and conditions displayed, you are agreeing to pay: Parking Charge Notice (PCN) £100”. The operator has issued the PCN as the appellant did not make sufficient payment for the duration of his parking session. The operator has provided images from the ANPR system, which show that the appellant’s vehicle entered the car park at 11:02 and exited at 15:30 on the day in question, staying for a total of four hours and 28 minutes. A screenshot of its payment system has also been provided, showing that the appellant only made sufficient payment to entitle his vehicle to remain at the site for four hours. The appellant has raised a number of grounds of appeal, each of which I will address separately. The appellant states that he was not the driver of his vehicle on the day in question and believes that the operator has not complied with the PoFA 2012. He states that the operator has not shown that the individual that it is pursuing is the driver and liable for the charge. Within his initial appeal to the operator, the appellant has named himself as the driver of the vehicle on the day in question. Therefore, POFA 2012 does not apply and I am satisfied that the operator is correctly pursuing the driver. The appellant states that he is not aware of the purpose of the ANPR cameras. He states that the signage does not advise motorists of what the ANPR data will be used for and is questioning the reliability of the cameras. The operator has provided photographic evidence of the signage at the site. Upon review of this, it clearly states: “Camera enforcement in operation. Images captured are used for parking enforcement purposes”. Therefore, I am satisfied that the purpose of the cameras is clearly stated for motorists to see. In terms of the technology of the ANPR cameras themselves, the British Parking Association audits the ANPR systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate. Independent research has found that the technology is generally accurate. Unless POPLA is presented with sufficient evidence to prove otherwise, we work on the basis that the technology was working at the time of the alleged improper parking. The appellant states that the charge is a penalty, unfair and breaches the Consumer Rights Act 2015. He states that it is not saved by the Supreme Court case ParkingEye v Beavis. The appellant has made reference to other court cases. The appellant is disputing the adequacy of the signage at the site. The appellant states that the charge of £100 plus £1.80 for card payment exceeds the appropriate amount specified in law. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the British Parking Association (BPA) Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within PoFA 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. I am also satisfied that the ruling of the Supreme Court is applicable in this case. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While I note the appellant’s comments that the additional £1.80 charge is in excess of the £100, the charge is a transaction fee. Should the appellant opt to pay by an alternative payment method, the transaction fee would not apply. The appellant is disputing the operator’s authority to pursue charges on the land. Section 7.1 of the British Parking Association Code of Practice outlines to operators, “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”. The operator has provided a copy of its contract with the landowner. Upon review of this, I am satisfied that the operator has sufficient authority to issue PCNs on the land in line with the British Parking Association Code of Practice’s requirements. The appellant states that the operator does not have planning permission for its signs or ANPR cameras and has requested proof of this. Please note that POPLA’s role is to assess if the PCN has been issued correctly. POPLA is not equipped to assess the merits of a planning application or lack thereof. On this basis, my decision will focus on the other aspects of the appeal in order to determine if the PCN has been issued correctly. The appellant states that there was no breach of contract and the contravention did not occur. He states that there was no breach of contract and the contravention did not occur. When parking on private land, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review and comply with the terms and conditions when deciding to park. As the appellant did not make sufficient payment for the duration of his parking session, he has failed to adhere to the site’s terms and conditions. As such, I conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal.

Is it worth escalating this somehow to ask for the decision to be reviewed, on the basis that my main appeal point seems to have been overlooked? I can't see how the adjudicator can have independently come to the conclusion that I did not comply with the terms based on the evidence provided.

Fruitcake

There is no longer any "oversight committee" for PoPLA so you are now in ignore mode for the next six years.

I doubt the scammers would want this in front of a judge, but you can check the BMPA website to see how likely the scammers are to try court.

Meanwhile, complain to your MP about this unregulated private parking industry. If they are a Tory, you can suggest they contact the RH Jacob Rees Mogg who is very much up to speed on this sort of thing. I'm not sure if Clevedon is his jurisdiction, but he is a near neighbour constuency wise. NE Zumerzet I think.

barnakles

Less that 1 in 1000 cases go to court: http://www.bmpa.eu/companydata/Premier_Park.html

In a funny way I don't mind if it does, I really can't see a judge looking favourably on the operator, bringing a case to court where there is no clear contravention of the displayed terms. Rather not have to deal with the constant stream of demands for money through the letter box though, before that happens. I thought those days were over for me.

HazardsOn

That sounds extremely harsh. If you had not identified yourself as the driver (I quote the adjudicator - I thought you were not the driver) would the appeal have succeeded? Thanks for sharing as it helps me with a NTK I received from the same car park. I think I will be emailing the planning department re the lack of planning permission for Cameras on a pole and their advertisements. It also spoils the entrance to a listed building!

barnakles

Hi Bernie,

Yes, I believe it definitely would have helped, lesson learnt. That was before I found these forums. Definitely get in touch with the local planning office, they don't seem to have any consent for the camera or signs but unfortunately that point did not help my case with POPLA either.

barnakles

I thought I would include this as is relevant to my case, and it did not form a part of my initial appeal:

12. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

After re-reading the adjudicators comments, I still cannot believe they came to such a conclusion by an honest review of the evidence. Just reads like a cut and paste job without even noting the information I supplied:

As the appellant did not make sufficient payment for the duration of his parking session, he has failed to adhere to the site’s terms and conditions. As such, I conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal.

How is that the case, Alexandra Roby, when the operator themselves concede I have paid £5 which as per the signs is sufficient for 5 hours? At no point does she deal with the contention of extendable parking tickets, which the signage does not mention and the Ringgo app info page actually confirms to be the case:

https://drive.google.com/file/d/0BzQHEJHX62PmLW9vRGdkV0dva1E/

On this experience I'd have to conclude that POPLA are nowhere near independent and just ignore any points that they cannot conveniently rebut via boilerplate text.

Coupon-mad

She even starts her decision:

The terms and conditions of the site state: “Please pay for your stay. What are the charges? Up to 5 hours…£5.00.

and you paid £5.

then she concludes, wrongly:

As the appellant did not make sufficient payment for the duration of his parking session, he has failed to adhere to the site’s terms and conditions.

Write that in words of one syllable to the complaints email at POPLA (see their FAQs). Address it 'dear Mr Gallagher' and make it SHORT and SNAPPY.