Premier Park Ltd, Hathaway Retail Park, Chippenham

Mouse007

“Premier Park - EW have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.”

Wife (Registered Keeper, not driver) received PCN after her car was parked for over 3 hours. Thanks to advice here no admission was made to who the driver was and I drove around the car park and uploaded dash cam video showing no warning signs on approach or entrance to car park and those within car park were not clear from driver’s position.

Summary of appeal:

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 - There is no mention of any terms and conditions on the car park entrance sign and no signs are visible to drivers approaching the car park. Also within this car park the signs are not prominent, clear or legible from inside the vehicle and can not been seen, let alone read, without having to turn your head (which breaches the BPA code of practice Appendix .

4) There was no valid contract formed between Premier Park and the driver

followed by 5 pages of detail ...


That’s the second time I’ve used dash cam video evidence, other was Chippenham hospital, same result then.

Coupon-mad

Nice one! So it seems the signs at Hathaway Retail Park, Chippenham, are inadequate.

Can you openly show us the Dashcam footage for others to use as well, please?

Mouse007

Not sure how to upload a video but maybe a few screenshots will help, we could play a game - spot the parking sighs (there are 5 in this one)

Mouse007

2 in this one

Mouse007

I've found a 3rd one in second picture

Coupon-mad

I see what you mean!

RSBaron

Thankyou so much for this. Im going to drive around later and get my own footage. Thankyou!!

Mouse007

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 Thursday 14 February 2019. Assuming the PCN was posted on Thursday 14 February 2019, 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 Monday 18 February 2019.


The period of 28 days beginning with the day after that on which the notice is given would cover the 28 days Tuesday 19 February 2019 to Tuesday 19 March 2019. Therefore Wednesday 20 March 2019 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 Thursday 14 February 2019. 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 Friday 15 February 2019 to Friday 15 March 2019 inclusive.According to Premier, Saturday 16 March 2019 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 four days too soon.



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

Mouse007

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

Mouse007

3) Unclear Signage


The is no mention of any terms and conditions on the car park entrance sign and no other signs are visible to drivers approaching the car park.


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, there are no signs along the parameter road fence or entrance to this particular car park. There is nothing which gives proper notice to the driver before entering the
car park about any terms or conditions.


Within the car park there are small signs attached, well above eye height, to fences, lamp posts and walls. These are however all on the passenger side of the vehicle as you drive around the car park’s one way system and so not be visible to a driver. Even if the driver could read these signs the driver would not be able to do so without having to turn their head (which breaches the BPA code of practice Appendix .


In this car park the signs are not prominent, clear or legible from inside the vehicle.


None of these signs can be read even if the driver did notice them whilst negotiating other traffic and pedestrians within the car park. They are also completely lost amongst all the retail signage,
advertising boards and banners and other notices.


Furthermore it is completely unclear that a vehicle is entering a zone where an Automatic Number Plate Recognition (ANPR) recording is being made.



BPA code of practice 21.1 states: You may use ANPR camera technology to manage, controland 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.


There are no visible signs which mention ANPR. There is no notice of recording.


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.

Mouse007

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 merely states “entrance” with an arrow pointing into the car park. This can be clearly seen at 45 seconds into the attached videos.


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. The Supreme Court were keen to point out the decision related to that car park and those facts only:


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.


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 and obscure. They are unremarkable, not immediately obvious as parking terms and the wording is totally illegible to a driver and can not 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. 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 02.06.16, 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.''


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


''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.''


''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 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:


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,