POPLA Appeal first draft - Premier Park Ltd,Royal Gatehouse Tenby

englebrook_chinklebottom

Hi all,

Would anyone have time to check over my POPLA appeal for me please? According to Premier Park I have until this Friday 22nd Nov to respond (28 days since receiving email). Apologies for short notice, it's taken me ages to put this together (and I'm still not sure it's any good).

Some things to note - I don't actually have any photos of the signage as we were on holiday at the time. The images I have been able to find online are too small to read the smallprint so I don't feel able to complain about unfair signage - unless there's a way around this?!

I am considering including a paragraph on mitigating circumstances as we did return to the vehicle at the time stated on the ticket but stayed to breastfeed our baby. I didn't mention this in the original appeal to PPL as I just used the template letter from the Newbies thread. Is it worth adding something now or too late? Not sure it has much success if other threads on here are anything to go by.

I have mainly used text from the successful POPLA appeal about Grace Periods, which I think is my strongest point. I have read through and amended where necessary but would be grateful if anyone could read through in case I've missed anything.

Thank you so much, in advance
EC

POPLA Verification Code: xxx
Vehicle registration number: xxx

My appeal to the Operator, Premier Park Ltd, was acknowledged by the Operator and rejected via an email dated 25/10/19. 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 Grace Period: BPA Code of Practice – non-compliance

2 The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3 No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4 No Evidence of Period Parked – PCN does not meet PoFA 2012 requirements

5 Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

6 The ANPR System is Neither Reliable nor Accurate


1. Grace Period: BPA Code of Practice – non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:
“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

BPA’s Code of Practice (13.4) states that:
You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes, therefore it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Finally, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”

(Source: britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf)

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken 3 into account – certainly an allegation of under eleven minutes (as is the case here) is perfectly reasonable.

As stated earlier in this section, it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, find an available space, park the vehicle, locate (and read) terms and conditions and then purchase a ticket.

It is therefore argued that the “period of parking not paid for” in this case (which Premier Park Ltd claim was 20 minutes) should reasonably be considered part of the grace period, particularly if you take into account section 10 - Mitigating circumstances.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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 keeper 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.''

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 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 authorised 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 Code of Practice) 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 authorised can give rise to a charge and of course, how much the landowner authorises 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 Code of Practice 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 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 23
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.

4. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

At no stage do Premier Park Ltd explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. Premier Park Ltd’s NtK merely states the time of entry and exit to and from the car park.

It is not in the gift of Premier Park Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, Premier Park Ltd are not able to definitively state the period of parking.

I require Premier Park Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must 24 refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the letter above (but not part of) the images. Two images have also been cropped to only display the number plate. As these are not the original images, I require Premier Park Ltd to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

6. The ANPR System is Neither Reliable nor Accurate

The Premier Park Ltd Notice to PCN shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. The PCN gives an “Entry Time/Date” and an “Exit Time/Date” but these times do not equate to any single evidenced period of parking.

By Premier Park Ltd own admission on their PCN, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ECP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

As ‘grace periods’ (specifically the time taken to find a parking space, locate any signs, observe the signs, comprehend the terms and conditions, and purchase a ticket) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times , it is vital that Premier Park Ltd produces the evidence requested in the previous paragraph.

Coupon-mad

According to Premier Park I have until this Friday 22nd Nov to respond (28 days since receiving email).

POPLA codes actually last 33 days, so you have the weekend and more. Honestly!

Remove this section as it never wins:

6 The ANPR System is Neither Reliable nor Accurate

And change the first section to be in the style of the POPLA examples you find, when you search the forum for POPLA split grace periods.

That style is different from yours and avoids ever using the phrase '11 minute overstay' and breaks it into two parts with sub-headings that POPLA seem to understand better.

Was yours 11 mins? How much before parking & how much after, and was it a free or a PDT machine car park?

englebrook_chinklebottom

Thank you for your incredibly speedy reply.

Was yours 11 mins? How much before parking & how much after, and was it a free or a PDT machine car park?

Ours was a 20 minute overstay, annoyingly only 3 minutes at the start and 17 at the end (although we had returned to our vehicle on time stupidly thinking a friendly traffic warden wouldn't give us a ticket for breastfeeding!) It was a PDT car park.

I will address your other points now, thank you so much

englebrook_chinklebottom

Also, having just re-read post 3 of the Newbies thread should I add the block of text about signage - it doesn't require me to provide my own photo then does it?

Redx

Always add signage , the claimant should provide pics in their evidence pack , so unless you have your own , just add the signage section

It's not one total overstay , it's the before plus after periods , see clause #13 of the BPA Cop

There are no traffic wardens on private car parks , just those sc@mmers on commission where anything goes , even for people covered by the Equality Act

Coupon-mad

englebrook_chinklebottom wrote: »

Also, having just re-read post 3 of the Newbies thread should I add the block of text about signage - it doesn't require me to provide my own photo then does it?

You are not required to but it's a mistake NOT to add your own to it.

Ours was a 20 minute overstay

DO NOT use that phrase anywhere:

(which Premier Park Ltd claim was 20 minutes

NO.

Use the wording I wrote in 'split grace periods' POPLA appeals (search the forum for posts with those words). You will have to go to town on why the car stayed for 17 mins in your case.

Never, ever stay after parking time in a private car park.

englebrook_chinklebottom

And why not simply COVER YOUR NUMBERPLATE before you leave past the exist camera?

Thanks for the tip. We were on holiday, didn't even realise there were cameras, or that it was a private car park as opposed to a council one. Never had this issue before or I guess we would have been more savvy. Another great reason to just cycle everywhere!

DO NOT use that phrase anywhere:

Sorry! Just answering your question.

This is what I've come up with after following your advice - better? Thank you again

1. Grace Period: BPA Code of Practice – non-compliance
1. The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

(a) On arrival - the 'observation period':
There was traffic build up on entering this car park, vehicles were entering and leaving all at the same time and the car park itself is quite small. There is also a fairly restricted width of the car park spaces, causing difficulties in waiting for cars to manoeuvre to park or leave spaces, then difficulties for the driver in then parking their own vehicle.

I am a witness to this as I was an occupant of the car as well as its keeper. I can assert that it took 3-5 minutes before we were able to park, and at no time did we read any term that told us that the 'observation' time had actually started when we were in the queue and not even past the entrance threshold.

Even if it had said that, observation and grace periods must still be factored in, given the facts relating to each site, and 3-5 minutes is a reasonable grace/observation period to enter this car park, before reaching one of the small spaces, then carefully park, then finally seek out one of the signs and read it, which is the only point at which any contractual parking licence may have started (only when the driver has had a fair opportunity to read the terms and decide whether to stay, as Kelvin Reynolds stated).

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 3-5 minutes taken before being able to park and read the new signs at this particular site is a reasonable period.

(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.''

BPA (13.4) reiterates this fact: ''You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.''

Given the timings shown by the images (and subtracting the reasonable time explained above, on arrival) the operator is alleging that the driver exceeded the parking time after the end of the parking event, by 15-17 minutes. This time can be accounted for as upon returning to the vehicle it became apparent that our infant required breastfeeding before we could safely exit the car park (a screaming baby would have been dangerously distracting for the driver). 15-17 minutes must be considered a reasonable period in which to breastfeed and then exit the car park. The Equality Act 2010 says that it is against the law to treat a woman unfavourably because she is breastfeeding, and that must surely include charging her family £100 for the time taken to breastfeed.


The Operator has displayed on their PCN only the entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated, and to any right-thinking person the only reason for this is to engineer an 'outrageous scam' (Hansard 2.2.18!- the views of MPs during the Parking CoP Bill reading) by misleading POPLA. Taking into account the travel time to a parking space, the time required to breastfeed, and then travelling back out of the car park, the period of parking here falls comfortably within the mandatory observation and grace periods as outlined above.

As such, 15-17 minutes is a reasonable grace period to exit the car park after the parking contract has ended. The parking operator has issued the parking charge notice incorrectly. Accordingly, POPLA must allow this appeal.

Coupon-mad

Yes that is much better - POPLA will ignore the Equality Act but that's not something a court could ignore!.

You say:

(new terms for this site)

so make sure you add a stand alone point, taking and pasting in embedded 'before and after' pics from GoogleStreetView if you can get close enough with the little yellow man! You can change the image date pack to previous older images (top left, the little arrow in the small box).

Cite the BPA CoP about 'new restrictions' needing extra, prominent signage to draw a change to the attention of drivers used to the old car park rules/lack of restrictions.

englebrook_chinklebottom

I must admit I struggled to follow that paragraph properly and left it in but doesn't look like it's relevant seeing as I've never used the car park before? From GoogleStreetView it looks like it hasn't changed since 2015 but hard to tell.

Should I edit it to:
Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected and onerous.

OR

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract.

OR leave out the paragraph entirely?

Regarding the signage section, I will add your "template point on signage" but I don't have any photos of my own. Should I just stick in the unreadable image from the internet?

Thanks again, feels like we're almost there with this.

Coupon-mad

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected and onerous.

Yes, use that.

Regarding the signage section, I will add your "template point on signage" but I don't have any photos of my own. Should I just stick in the unreadable image from the internet?

Yes, embed that image in the document itself, to illustrate the point.

englebrook_chinklebottom

Bonza, thanks again for everything.

Once I've made those edits I will consider that the final draft and send it to POPLA unless you (or any others) have any other suggestions.

Thanks so much
EC