Premier Park Kilve Beach POPLA Appeal

djdhan

Hello all.

My first post here so be nice please

I received a PCN from Parent Park Ltd back in September as a vehicle I am registered keeper for was on site for 17 mins and made no payment.
I tried to appeal to them as the keeper (careful not to name the driver etc) explaining the driver was accompanying a disabled person as it was a motability car and due to the carpark being busy the driver had to park right down at the bottom end of a steep car park then walk up to the top with the disabled persons to find out that is was cash only then after searching and being able to find no cash they returned to the car and left the car park.
There was a free period of 15 mins so according the the PCN received it was an overstay of 2 mins this was due to the disabled person needing longer to walk i feel. was also shocked to find in a pandemic they offered no cashless system. However as expected on 23rd of October they rejected my appeal and now I have my POPLA code.
I am aware people say to appeal on several points such as landowner permission grace periods etc but I'm confused where to start and which ones to go for and am concerned I'm running out of time. I'm happy to draft the appeal just looking for quickfire responses on what areas to appeal on.

Thanks in advance.

Redx

Yes do a draft , we cannot work on assumptions , use every key point that you can

No landowner authority
Poor and inadequate signage
Frustration of contract
Pofa ( if they failed to comply with POFA)
The BPA CoP 2020

Etc

I think you meant Premier Park LTD , not Parent park

The issue with the disabled person comes under the Equality Act 2010 , but is more likely to work with the landowner , so plan A , a complaint to the landowner

The BPA CoP on grace periods is a third of what you say is on the sign , so you will struggle with that argument

Popla have never made a determination based on the Equality Act 2010 , so what seems common sense to me and you does not feature in appeals because they say it's up to a court , thereby it's indirect discrimination and would require a court case to resolve it

If PP complied with POFA then it's pointless hiding the drivers Identity or hiding behind oofa

D_P_Dance

Those T&C are minute, read this

forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

A judge earlier this year made these comments and dismissed the claim.

"This signage contains a huge amount of wording, in varying fonts. There are

between 650 ta 700 words, by my rough count. it's well known that the average
reading speed of most adults is aground 200 to 250 words per minute. On the basis
however that this is reading a sign and there are many technical words, it would
probably take an average reader about 3 to 4 minutes to read everything on the
sign. The key part however is found be found some 140 words into the text. It is in the
middle of the sign and it says this, in capitals, then below it is a lower sized font
referring to the £100:"   DJ Harvey

In my opinion it would take longer than -3 – 4 minutes to read and ubderstand this lot.

Castle

Redx said:

The BPA CoP on grace periods is a third of what you say is on the sign , so you will struggle with that argument

Actually the sign says "parking period commences 15 minutes after entry".

Redx

Agreed , but it's greater than the BPA CoP so they will use it to show they are allowing the extra time the OP nentioned , as in 3 times the rule in the CoP , hence my comments

If the BPA have swept the Smart parking debacle under the carpet , this grace period interpretation has no legs at all

djdhan

Thanks everyone for your replies.
I've made my first draft on the points I think apply. I'm a little unsure on the Frustration of contract point. I have also tried contacting the landowner to get them to cancel it after reading a few of the stickies but had no response.

__

I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Premier Park Limited in respect of an alleged breach of Parking Terms and Conditions at Kilve Beach Car Park on 17th September 2020. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:


1) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
2) Unclear Signage - 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.

 3) Frustration of Contract – Ultimately the car park was not used.

 1) 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

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

 

Also, Premier Park have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Premier Park v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. Premier Park has not provided any evidence to show that their system is reliable, accurate or maintained.

4) Unclear Signage - 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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

Link

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:

Link

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:

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

Link
''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:

Link

''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:

Link

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.

 

3) Frustration of Contract – Ultimately the car park was not used.

As the driver was accompanying a disabled person and the car park was at the time busy a longer walk to the nearest sign with T&C’s was required (taking into account the additional time for the disabled person. After fully examining the T&C’s it was discovered that the only payment method available was cash and that there was no nearby facilities or ways of obtaining any (This was both at the time unusual and more difficult due to the Covid-19 Pandemic). Due to this the driver decided that the parking could not be achieved so again taking into account additional time to get the disabled person back to the car they then exited the car back promptly (taking into account it being a busy day) not remaining to use any facilities or gaining any benefit from the operator or landowner.

This concludes my POPLA appeal.

Yours sincerely,

 

Redx

the numbering is incorrect

KeithP

Nothing there about the keeper not being responsible for the driver's actions because they haven't complied with POFA?

djdhan

I've had a read though and as it's ANPR not a windscreen ticket and it arrived in 14 days with them giving the 28 days notice line etc I don't think I can argue non-compliance with POFA? Happy to be corrected

Coupon-mad

I suspect that PP have complied with the POFA.  

I'd put your last point first, and point out in more detail that the sign gives 15 minutes before paying (consideration period) and the other two minutes are accounted for by the extra time a disabled person needs to return back down to the car, and to leave past the camera.

djdhan

Hi All,
Just wanted to thank you everybody and give an update.
--

Thank you for submitting your parking charge appeal to POPLA

 An appeal has been opened with the reference 0000000000.

 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.

 Yours sincerely

 POPLA Team