POPLA appeal Premier Park Exeter Airport

jdq2rp

Hi there,

We have read the forum and followed the guidance to date. We are now about to submit our POPLA appeal and just wanted to ensure that the experts here approve. We are very grateful for all the time and help many provide on here.

Briefly we were flying from Exeter airport on the 19/10/19. Not being from the area we do not know the layout of the place very well and mistakenly pulled into what we thought was our designated car park. We quickly realised that it was not, ours being across the main road instead, and left promptly.

On our return home after our holiday we had a paper PCN already waiting for us from Premier Park, the operator of the first lot we pulled into. They were submitting a charge for £100 (“kindly” discounted to £60 if paid within 2 weeks..….) and had images of the car entering and leaving their car park for a total of 9 minutes.

We, as the keeper, appealed on their website. We were able to supply evidence of the actual car park we ultimately stayed in, in the hope of appealing to their better nature. Alas, and unsurprisingly, to no avail.

We even received an email from the firm intimating that we “must” reveal who was the driver of the car. We complained to the BPA about this who investigated and sent an email suggesting that the firm were essentially kind of in the wrong….. But not really! (We can post these if interested).

Anyway we have researched and believe split grace periods should be our number one point. We add in the usual recommended points of appeal also. We don’t have any pics as the airport is quite far from us also, so perhaps we will have to amend the section on photos?.

Please find our appeal below and grateful for any thoughts!

Regards!

The Keeper!

jdq2rp

POPLA code:
Vehicle Registration:
On the XX/XX/XXXX, I, the registered keeper of this vehicle, received a letter dated XX/XX/XXXX 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 XX/XX/XXXX. 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 not long enough for the driver to read the additional signs within the car park
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. The signage is inadequate and unclear
5. 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. Grace period not long enough for the driver to read the additional signs within the car park.
Only a very small grace period of 5 minutes is allowed at this car park. This doesn't give enough reasonable time, for someone, in the rain, to get out of the car, read the signs, decide not to park and drive off. The Notice to Keeper shows the time difference between entering the car park and leaving at just over 9 minutes which is in breach of the BPA Code of Practice(CoP) mandatory grace period.

From the BPA CoP: 13 Grace periods
13.1 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.
13.2 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.
13.4 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.

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. ”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 29th November 2019. 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.”

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.

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 amallowing 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. The signage is inadequate and unclear
The BPA CoP, (Section 18.2) states:
“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area.”

There is no sign at the entrance to this car park and only the 'welcome including P' sign is visible from the road.

Therefore, to be able to read the additional signs within the car park, the driver must enter the car park. Furthermore, the signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

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

http://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: will post pic here

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 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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.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:

http://www.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 theBPA 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:

http://www.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.

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.

5. 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 un-redacted, 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.). If a redacted contract is produced it is unlikely to prove who signed it and when nor prove that authority was in place at the material date.

Sincerely etc...

Fruitcake

Do byelaws apply at this location? If so you should have that as an additional point as the car park will be non-relevant land.

I would make the comments where the scammers use the word "must" in regard to identifying the driver a separate point. This is a misrepresentation of the PoFA which contains no such wording, and is therefore a BPA CoP breach. Quote the relevant part of the CoP.

Embed the images in the real thing rather than include links. That way the assessor is forced to look at them.

All in all I think you have done a very good job. Well done.

jdq2rp

Hi Fruitcake,

Thanks for reply. We're not sure how to find that out? Exeter airport itself has x4 "official" car parks and no mention or reference is made to this particular site on their website.

J

jdq2rp

Thanks Fruitcake!

We will do as you suggest! All we've done is use the fantastic info already on this forum and amended it to suit our own situation, so we've not done much except read and take notice.

We are simply standing on the shoulders of giants, and are grateful to same!

J

Fruitcake

The airport website might include information about boundaries and byelaws. An internet search using keywords, Exeter airport byelaws might throw something up.

Even if you aren't sure, you can always include it, quoting the PoFA section that states it is not relevant land, and put them to proof byelaws don't apply.

PoPLa codes last 32 days so you have time to search and see if others might have more information/advice.

Le_Kirk

Taken from THIS: -

2.5 The use of the car parks is regulated by Exeter Airport byelaws under which a penalty may be payable for failing to comply with these terms and conditions or the requirements of the relevant order or byelaw.

jdq2rp

Hi Le Kirk,

I did see this but think this paragraph specifically is for the airports own designated "official" car parks, of which there are 4. It makes no reference to or obviously includes the Premier Park lot per se.

J

1505grandad

Presumably if you use not relevant land in the appeal it is up to Premier Park to prove that it is.

Fruitcake

But it doesn't specifically exclude that car park either. The airport and its byelaws has been around longer than the scammers, so I would include it.

This map gives options to zoom in and select road, aerial, streetside, and Ordnance Survey views. If you can find the car park on the aerial view then switch to road view, the blue shaded area will tell you whether the scammers car park is inside or outside the airport boundary.

https://www.bing.com/maps?&ty=18&q=Exeter%20International%20Airport&ss=ypid.YN1029x2135770713860067154&ppois=50.731109619140625_-3.410968065261841_Exeter%20International%20Airport_YN1029x2135770713860067154~&cp=50.73111~-3.410968&v=2&sV=1

jdq2rp

Well, well! Would you believe it it lies in the shaded area! So the byelaws apply?!
We will include this in the appeal too!
Thanks guys!
J