Premier Park - Planet Ice, Peterborough

AceOfBass

Sorry to bump this, but i'm about to submit the POPLA appeal as the keeper. I've created a PDF with embedded images, as recommended, and modified the text to fit. Before i do, I just wanted to ask advice on whether it is detrimental to include any of the images linked in post #10? In particular, the images of the signage closeup or NtK? Or is it specifically a GOOD IDEA to include such things?
Many thanks in advance!

Coupon-mad

I would embed into your word document, all the photos except the last 'close up' one and add some narrative about how dark and unlit this car park is, such that a driver would have no idea that it is managed/private land, in hours of darkness.

I would not bother with the NTK. PP have to produce that and POPLA seem to think the '29 days' is OK. So signage in the dark is what you should base your main appeal argument on, illustrated with photos within the appeal like a storybook, not as separate attachments.

AceOfBass

Thanks Coupon-mad, i'll move inadequate and unclear signage up to become point 1 then, with added references. I'll post the full amended appeal text shortly.

I'm assuming it's worth leaving in the non-compliance with PoFA 29 days stuff, just in case? Or, in light of recent decisions refusing this, do you think that would just irritate a POPLA assessor now?

Coupon-mad

Yes leave it in, just in case you get an Assessor with their head screwed on to make sensible decisions and not just toe the party line decided wrongly by the Lead Adjudicator earlier this year, when on a PP thread on pepipoo forum we saw an email from him scrabbling to 'explain' his 'rational' (which wasn't...rational).

AceOfBass

Here's my latest appeal text. The spacing looks odd in places here, but it's fine in the PDF.

---

POPLA code:
Vehicle Registration:

On the 26/10/2017, I, the registered keeper of this vehicle, received a letter dated 24/10/2017 acting as a notice to the registered keeper.

I appealed to Premier Park as the registered keeper and received an email denying my appeal dated 29/11/2017. 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. Inadequate and unclear signage
2. 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.
3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
4. Premier Park has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court.

1. Inadequate and unclear signage

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:

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

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, unlit, indeed obscured and hidden in some areas.

NOTE: Images attached here are taken at a later date, at the same time of day as the alleged event, to demonstrate equivalent conditions. Sunset on the date of the alleged event was 18:03, as recorded here:

timeanddate.com/sun/uk/peterborough?month=10&year=2017

The alleged entry time is recorded as 19:44, 1 hour 41 minutes after sunset.

PICTURE 1: Entrance to carpark


The entrance from the main road is well lit, with a single directional sign pointing into the car park under the height restriction barrier. This sign has no mention of car park ownership, nor mention any form of parking restrictions. The sign simply states "Strictly for ice rink customers only". This photo demonstrates that it would not be possible to ascertain that parking restrictions existed before entering the car park.
PICTURE 2: Inside car park


Beyond the barrier, the car park is completely unlit, aside from a section at the very end and parts of a staff parking/unloading/ambulance area to the left. A single unlit P sign is present on the right.


PICTURE 3: Further down the entrance road


For reference: Public parking spaces commence to the right. Minibus parking is directly in front.
PICTURE 4: Located evidence of obscured and unlit parking restriction signage (white boxes to left and right):


This photo demonstrates the sign size and lighting conditions under which a driver is expected to observe and read parking restriction information.
PICTURE 5: Located evidence of ONLY lit restriction signage (white box to left of large white sign) in the unloading/staff/ambulance access area:


I was finally able to locate a small parking restriction sign under lighting, in a section of the unloading/staff/ambulance access area (as evidenced by signage displayed). This sign is in an area not useable by drivers and is surrounded by other much larger and more prominent signage. Hence, I cannot see how this sign might be observed at all by a typical driver.

As shown, parking restriction signage throughout the location is 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.

The entrance sign, in this case, is shown in the same light conditions in PICTURES 1 and 2, above.

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 (see PICTURE 5, above), 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:

www-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. 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.


2. 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) (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".

With reference to this, the received Notice to Keeper states, “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.” The Notice to Keeper does not confirm the correct timescale OR provide any indication of when the period begins. As a result, it does not comply with the regulations set out in PoFA 2012.


3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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.

Furthermore, 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.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against 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.''


4. 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.).

Taking all of the above into account, I respectfully request that POPLA uphold my appeal and cancel this PCN.

Yours faithfully,

Coupon-mad

I, the registered keeper of this vehicle, received a letter dated 24/10/2017 acting as a notice to the registered keeper.

I appealed to Premier Park as the registered keeper and received an email denying my appeal dated 29/11/2017. I contend that I, as the keeper, am

Might just be me, but the two split infinitives in that version have always grated. Not well worded!

AceOfBass

I received the evidence pack from POPLA (not directly from Premier Park) today. I will try to follow the advice given in other threads on how to rebuff the contents.

In short, they've provided a solid 73 pages of words and pictures! I note a couple of obvious issues straight away- none of the signage photos are in complete darkness as per the alleged time of visit, and the contract is heavily redacted. There must be more, but i need time to read through it all.

Is there a value in sharing a link to the pack here for others to see and comment on, or is that inappropriate for some legal or other reason? There is obviously identifying info concerning the keeper and the vehicle throughout.

System

Could we see the contract even if it is redacted. Checking for signatures

Planet Ice have a similar scam problem at Milton Keynes. Seems too much of a coincidence.

AceOfBass

Sure - gonna hide the personal details and post a link to the whole thing shortly.

AceOfBass

Ok, here it is:

https://www.dropbox.com/s/q5kgop88hbzz9f8/evidencepack.pdf?dl=0

@IamEmanresu: The contract is at the end. Please let me know if you think i can use a specific rebuttal here.

In general, I'd be VERY interested if anyone spots any glaringly obvious mistakes or comments that can easily be rebutted.

Thanks.