Premier park ticket with £100/£60 charge, shouldn't they be new capped rates now?

glengorms

Evening all.  Premier Park appeal rejected and have now drawn up a draft for POPLA appeal, wondered if anyone would cast an eye over it for me?  Thanks 

Fruitcake

Yes, please post it here for review.

glengorms

Not sure bout the frustration of contract...

Only allows me so many characters on here, so first section

POPLA code: xxxxxxxxxxxx

Vehicle registration: xxxxxxxxxxx

Parking charge reference number: xxxxxxxxx

Date of alleged offence: xxxxxxxxx

I, the registered keeper of this vehicle, received a letter dated XXXXXXX acting as notice to the register keeper.  My appeal to the operator – Premier Park Ltd – was submitted and acknowledged by the operator on XXXXXXX and rejected via an email dated XXXXXXX.  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.     No keeper liability: the NTK does not satisfy the mandatory requirements for the transfer of liability from the driver to keeper under the Protection of Freedoms Act 2012 (PoFA) Schedule 4

2.     Loading/ unloading is not parking. Jopson vs Homeguard

3.     PDT machine card payment facility not working: Frustration of contract, and contract terms void for impossibility.

4.     Inadequate signage: entrance 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.                                                                               

5.     No evidence of landowner authority to issue parking charges and pursue them in the operator’s name.

6.     No evidence of period parked – NTK does not meet PoFA 2012 requirements

7.     Vehicle images contained in PCN: BPA Code of Practice - non-compliance

 

1.     No Keeper Liability: the NTK does not satisfy the mandatory requirements for the transfer of liability from the driver to keeper under the Protections of Freedoms Act 2012 (PoFA)

A parking contract is a legally binding contract between the driver of the vehicle and the parking provider.  Therefore, liability for an alleged breach of the providers terms and conditions falls upon the driver. The operator in question – Premier Park Ltd – has shown no evidence as to who was driving the car at the material time.

Vehicles are often driven by other people (with the consent of the owner) as long as the driver is insured.  The driver in question had permission to drive the car but there is no presumption in law that the registered keeper is the driver. Therefore, in order to pursue me for the parking charge the operator must rely upon the provisions in Schedule 4 of PoFA in order to transfer liability from the driver to the registered keeper. Paragraph 4 (2) of Schedule 4 makes it clear that it only applies if conditions set out in paragraphs 5, 6, 11 and 12 are met.  The operator has no lawful right to claim the parking charges from me, as the keeper, unless it can show these conditions have been fulfilled.

As there was no windscreen ticket the conditions set out in paragraph 6 (1) (b) applies: the operator must have

“given a notice to keeper in accordance with paragraph 9”.

This means the NTK must comply with all the requirements set out in paragraph 9. Paragraph 9 (2) states

“The notice must – “

then goes on to list points (a) to (i), all which must be included in the NTK. If the NTK omits any of the prescribed wording then the statutory conditions are not met and keeper liability does not apply.

Paragraph (2)(e)(ii) states that the notice must invite the keeper

“…to pass the notice on to the driver”

As can be seen in the image of the NTK below the operator has failed to include this wording in the NTK. Without that wording, this NTK cannot claim to be PoFA-compliant.

 

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 NTK was served or not.  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.

It rests with the operator to show that I have personally not complied with terms in place on the land and shown that I am personally liable for their parking charge, which they can’t.

The importance of full compliance with the PoFA was confirmed by parking law expert, 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 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.”

 

Thereby, no lawful right exists to pursue me as keeper of the vehicle for any unpaid parking charges, where the operator cannot transfer the liability for the charge using PoFA.

This exact finding was made in 6061796103 against Parking Eye 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.''                                                                                                   

 

2.     Loading/unloading is not parking. Jopson vs Homeguard appeal court case applies.

 

On the day in question the vehicle at the subject of the NTK entered the Premier Park Ltd controlled carpark with a black Vauxhall Mokka registration XXXXXXX.  The Vauxhall Mokka purchased a full day ticket, some contents of the vehicle were loaded into the vehicle listed on the NTK and that vehicle left.  The time it took to complete this action was delayed by the following actions:

a.     The wording on the Premier Park Ltd sign was considerable and in very small font.

b.     Of the three pay and display ticket machines only the cash machine was working with no option to pay by card, enough monies had to be found to cover the £8 day parking charge

 

In June 2016, his honour Judge Harris QC looked at the case between Jopson vs Homeguard in relation to their accusations that loading/unloading constituted parking.

Judge Harris concluded the following:

“[….]. The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time.”

“Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moments for these purposes.”

 

“Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable, a consideration which those instructing Miss Fenwick seemed reluctant to accept. I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice”.

 

The vehicle in question on the NTK was in the car park to take the driver and some equipment from the Vauxhall Mokka away and never to ‘park’ as accused.  The extended time that this car remained in the car park before this happened was due poor signage and frustrations of contract or it would never have been there that long.

 

3.     PDT machine card payment facility not working: Frustration of contract, and contract terms void for impossibility.

On the date in question of the three pay and display ticket machines available in the car park, the two card payment machines had a sign on that they were not in use, leaving only the cash pay and display machine as a way of purchasing a ticket.  A day ticket cost £8 which is a considerable amount of change needed.  Following the outbreak of the pandemic it isn’t usual for people to carry much or any cash with them, as people have been encouraged to use contactless payments.  On the day in question the drivers of both cars spent several minutes gathering together the required amount of change and purchased a day ticket for the Vauxhall Mokka registration XXXXXX – the operative can check their records to see that this was indeed the case.

Frustration of contract occurs when an unforeseen event occurs, which is not the fault of either party, and which renders the contract impossible to perform.  In this case no option for card payment which then considerably delayed the purchase of a cash ticket. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 demonstrates how a change in circumstances can frustrate a contract (Law Reform (Frustrated Contracts) Act 1943) other than a delay in purchasing a ticket there was no loss to the claimant and so they have no valid claim. ????  Not sure if this can be used??

 

glengorms

Second section

4.     Inadequate signage: entrance 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.

As keeper of the vehicle I submit 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 vs Beavis case.

In the Beavis case the signs were unusually clear and not a typical example of the ones usually used by private parking companies.  The Supreme Court were keen to point out the decision related to that particular car park and those facts only.

In the Beavis case the £85 charge was clearly visible in large font and a contrasting background colour.  The terms were legible, more concise and unambiguous with ‘large lettering’ signs at the entrance and all around the car park.

The picture below shows the ‘Beavis case’ sign as a comparison to the sign under dispute in this case.

Beavis car parking sign                                                Lamorna parking sign

                                                                               

The Lamorna sign is placed within the car park side facing on rather than forward facing drivers as they arrive.  So drivers have to ‘find’ the sign when they are already in the car park.

The signs are unremarkable and not immediately obvious as parking terms as they also contain advice on uneven surfaces and boat launch tickets.  The wording is cluttered, crowded and lacks white space as a background.  The legibility of the sign must be called into question considering the amount of information that is included on it, especially as this is expected to be read before the action of parking and leaving the car.

It isn’t enough for the Operator to claim that the signs were visible to the driver as they park or leave the car. For the £100 parking charge to be binding the Operator must prove this element of the sign was displayed so clearly that the driver had seen it.  Again, comparing the Beavis sign to the Lamorna, the £100 parking charge is buried in information and differing sized fonts.

As the fine exceeds the basic parking charge by 10,000% it can only be considered an onerous term, the same kind that Lord Denning said in J. Spurling Ltd vs Bradshaw (1956) EWCA Civ3

“would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.”

If the ‘red hand rule’ is relevant to parking cases, it is because the parking charge greatly exceeds actual or estimated loss.  In ParkingEye Ltd vs Beavis (2015) UKSC67 it was held that the parking charge was not a penalty

“deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.”

The aim then of a parking charge is to deter motorists from breaching the terms of the parking contract and, if this is genuinely the case, then as Lord Neuberger pointed out in ParkingEye Ltd vs Beavis

“The charge is prominently displayed in large letters at the entrance of the car park and at frequent intervals within it.”

As can be clearly seen the ParkingEye sign is written in contrasting colours and large font, instantly catching the eye and working as an effective deterrent unlike the Lamorna car park sign. The £100 parking charge is written in small writing and buried within a great deal of text and neither displayed at frequent intervals with in the car park, making it ineffective as a deterrent and clearly not within the bounds for recoverable parking charges as set out by the Supreme Court in ParkingEye vs Beavis.

 

5.     No evidence of landowner authority to issue parking charges and pursue them in the operator’s name.

 

The operator states in the NTK that it is authorised to manage Lamorna Cove car parks. As managers acting on behalf of the landholder, it does not have a proprietary interest in the land. Therefore, it does not have authority to issue and pursue parking charges in its own name.

Written signed evidence is required from the landholder, to show that the operator does have the authority to do so. This should show:-

1.               A plan showing the land for which landowner authority is granted

2.               The start and end dates of the contract

3.               The names of the signatories and their legal standing – ie as trustees, employees, owners etc

4.               Which aspects of car park management are authorised on the site

5.               All relevant restrictions contained within the grant of authority, eg number of signs, use of ANPR technology etc.

If the operator fails to provide such proof of landowner authority, it will have failed to establish an essential element regarding its claim, that that it had the legal right to pursue parking charges in its own name. Additionally, written landowner authorisation is a mandatory requirement under the CoP, which stipulates at paragraph 717 :

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner.”

And sub-paras 7.1, and 7.3 set out a comprehensive list of what must be included. A failure to comply with this would render the operator’s obtaining of my personal data from the DVLA unlawful. As Lord Neuberger PSC said in ParkingEye v Beavis in paragraph 111:

“While the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.”

 

6.               No evidence of period parked – NTK does not meet PoFA 2012 requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

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;”

Premier Park Ltd NTK simply claims

“the vehicle was parked in a manner at [car park insert]”

The NTK separately shows the vehicle

“entry time/date [enter date and time] and departed at [exit time]”.

At no stage do Premier Park Ltd specify the “period of parking to which the notice relates”, as required by PoFA 2012.

Premier Park NTK simply states it uses cameras

 “to record data”

but at no point mentions “period of parking”. It is not the prerogative 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.

As Premier Park Ltd ANPR systems on that car park only records entry and exit times they are not able to clearly state what the period of parking was. Premier Park Ltd are required 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.

 

 

7.               Vehicle images contained in the NTK: BPA Code of Practice – non-compliant

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 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.”

On this NTK there two images of the car – front and back - plus two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp on the photograph. As the images on the NTK don’t follow BPA Code of Practice, I require Premier Park Ltd to produce evidence of the original images containing the required date and time stamp.

 

I would gratefully request that the POPLA assessor considers all the points raised in this appeal and find in favour of the Registered Keeper.

Coupon-mad

I'd get rid of the final sentence in #2 because it adds nothing.  And remove this horrible intro someone wrote years ago, which we all hate as it is so ungrammatical and unnecessary:

I, the registered keeper of this vehicle, received a letter dated XXXXXXX acting as notice to the register keeper.  My appeal to the operator – Premier Park Ltd – was submitted and acknowledged by the operator on XXXXXXX and rejected via an email dated XXXXXXX.  I contend that I, as the keeper, am not liable for the alleged parking charge and

Finally, go read POPLA DECISIONS and skim-read quickly backwards until you find a Premier Park one or two from last year.

The point is that POPLA has sometimes found in 2021, that PP NTKs are not compliant but I don't think you've necessarily nailed the same reasoning that POPLA identified.  I can't recall what it was, but the assessors last year picked up on something so you really want to echo that and cite the other winning POPLA cases.

glengorms

Thanks Coupon-mad, I'll change that opening sentence and get rid of the other.

Re the NTK not being compliant, this was taken from a successful POPLA appeal against Premier Park last year and from I read in the assessors comments were for that for that reason of the wording?  Findings are below (thanks again handbags-at-dawn for your support)

Handbags-at-dawn said:

Premier Park's  standard Notice to Keeper fails POFA in quite a few  ways. Here, the assessor picked out one of the most straightforward - shed 4 para 9(2)(e)(ii): failed to invite the keeper to pass the NTK on to the driver. He didn't need to consider the rest. 

Decision: Successful

Assessor Name

Matthew Woodhouse

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) for the whole period of parking not being paid for.

Assessor summary of your case

The appellant’s case is that: - The notice to keeper is not compliant with Paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). - The signage is insufficient for a contract to exist between the operator and driver. - The operator must prove they have authority from the landowner to manage this site. 

The appellant has provided a document expanding on each of these points in great detail. While I have read the document, for brevity I am only summarising the points here. In their comments, they advise why the feel the operator’s evidence pack does not rebut their appeal grounds.

Assessor supporting rational for decision

The driver on the day in question has not been confirmed, and the operator is seeking to hold the appellant liable for the charge as the registered keeper of the vehicle. It is the operator’s responsibility to demonstrate to POPLA that they have issued the parking charge correctly. In this instance, the operator is attempting to transfer liability from the driver to the registered keeper.

 To do this, the parking charge notice needs to comply with Paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). One of the ways the notice needs to comply with PoFA is Paragraph 9(2)(e), that states that the notice to keeper must: “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;” 

Upon reviewing the 6 August 2021 notice to keeper, I can see that it confirms that the operator does not know the name and address of the driver, and it requests that the keeper pay the parking charge. The PCN also states that if the keeper was not the driver, to supply the name and ‘current serviceable postal address’ of the driver - wording that the appellant disputes. 

I am not dealing with that specific wording dispute however, as the PCN does not advise the keeper to pass the notice to driver, and that particular wording is required by PoFA. Without that wording, this PCN cannot be PoFA-compliant. Accordingly, I consider that the operator has been unsuccessful in attempting to transfer liability from the unknown driver to the registered keeper, and I therefore allow this appeal. I note the appellant has raised further grounds of appeal, however, as I am allowing this appeal I do not need to consider those further grounds.

Coupon-mad

Brilliant!  That's the one.

Refer POPLA to Matthew's decision and embed that full rationale as a complete screenshot into your word doc POPLA appeal.

Then save it as a PDF and upload it under OTHER'.

glengorms

Great stuff, cheers Coupon-mad, your help is appreciated. 

Le_Kirk

Coupon-mad said:

Brilliant!  That's the one.

Refer POPLA to Matthew's decision and embed that full rationale as a complete screenshot into your word doc POPLA appeal.

......... and make sure to change the spelling of rationale (as @Coupon-mad has done) as POPLA assessors seem to be incapable of using correct English Grammar!

glengorms

So how much detail do people give to replying to the OP responses on the POPLA appeals?  They've attached 83 pages of signage photos but seem to make some really weak arguments.  
There is a lot of "forum template" used too, do I respond to stuff like this or just ignore.

Also, do Initial Park and Premier Park have any connection?? Just spotted something a bit weird