Premier Park PCN / Charlton Retail Park / Overstaying on match day

Parkify

The keeper of the relevant vehicle received a PCN from Premier Park for allegedly overstaying on a match day - the usual three hour period reduced to 90 minutes on match days. This was appealed, both on POFA 2012 grounds and mostly because the signs do not state what days are match days, the driver did not know it was a match day, the car park was not busy and there was no suggestion it was a match day, so how could the driver have known it was 90 mins and not 3 hrs (the driver stayed 1hr 45mins). The driver also spent time in three different shops - Wren kitchens (viewing only), Next (had a coffee in the Costa inside) and Aldi (spent over 150 quid). Trying to get landlord cancellation has been a problem, as they all say the car park is not operated by them - Aldi seems to think they can have them cancelled, but telling them it is Premier Park not Parkingeye (who seems to do Aldi car parks) throws them into a confusion. One did suggest it could get cancelled if appeal failed - so the driver has followed up with them on that.

The Premier Park appeal was rejected and now there is the POPLA option. Before the appeal is submitted, wanted to see if anyone had a view on the strength of the match day argument and whether the POFA 2012 grounds should continue to be pursued. The original appeal was:

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner. There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date, with evidence that it was at the location on that date, as well as clear evidence that supports your allegation that the vehicle arrived and left at the times stated. Your evidence must also include details of the actual grace period agreed by the landowner.

The following is also noted:

• The driver spent a significant amount of money in one of the stores in the retail park, Aldi (£156.29). In order to resolve the dispute, a copy of the relevant card statement entry is attached. The driver also visited Wren Kitchens and Next, other stores on the retail park, at the same time. Complaints are being made to all three stores regarding your predatory conduct.
• The alleged parking charge relates to a stay of 1h45m. The signs in the retail park say in large letters that the maximum stay is 3h (see attached image of the sign from the relevant entrance, sourced from Google Maps - as per the above, I require evidence from you as to the sign that was allegedly in place on the material date) and below it says that it is reduced to 90 minutes on match days. There is no indication as to what days are match days, and therefore it cannot be implied into any alleged contract between the driver and Premier Park (noting it is denied that such a contract exists) that the 90 minute period applied on the relevant date. The signage is therefore clearly insufficient to support the alleged parking charge.
• The Parking Charge Notice alleges the vehicle was parked at Home Bargains Charlton. This is incorrect. The Parking Charge Notice also does not identify the landlord with which Premier Park is contracted. Under the Protection of Freedoms Act 2012, Schedule 4 the notice must identify "the relevant land on which it was parked". The notice is therefore invalid.
• The Parking Charge Notice fails to state that Premier Park is unaware of the identity of the driver and the current address of the driver as required under the Protections of Freedoms Act 2012, Schedule 4. The notice is therefore invalid.
• The Parking Charge Notice does not identify the time at which the notice was given as required under the Protections of Freedoms Act 2012, Schedule 4. The notice is therefore invalid

Tips welcome.

Coupon-mad

Yes looks fine.  Is that already in with POPLA?

Parkify

No that was the original appeal to Premier Park.  The POPLA appeal is not yet submitted, wanted to check whether there was anything to add or drop before doing so. 

Also, is it true that appealing removes my ability to pay reduced rate (or so they claim?). If so, what's the likelihood that I am shooting myself in the foot by appealing with the risk I ultimately pay 120 rather than 60. 

Coupon-mad

No risk, because you don't pay it anyway.

Parkify

In case interesting, Aldi customer services have told me that as regards non Parking Eye complaints you must email a different email address for resolution: gmd.cs@aldi.co.uk

I sent the following email, copying Aldi UK CEO Mary Dun (mary.dunn@aldi.co.uk):

Dear Mary, all,

I am copying Mary Dunn, Aldi UK CEO to hopefully expedite resolution of this matter, given the unfair and predatory behaviour of parking operators at your stores, operating ostensibly on your behalf even if only indirectly as engaged by the managing agent of the retail park, directly impacts your customer's perceptions of your business in the UK.

Please see email correspondence below regarding an unfair parking charge imposed by Premier Park after the driver stayed 1hr45 mins at your store car park at Brocklebank Retail Park, Charlton. The max stay period was 3hrs reduced to 1hr30 on "match days", which allegedly it was on the date of the parking incident. The driver has no idea for what sport or club the alleged match days were, nor were they aware it was a match day. In addition, the driver spent over £150 in Aldi. Therefore please arrange for this unfair charge to be cancelled. The details required are below.

PCN ref - redacted
Vehicle Registration - redacted
Date of event - redacted
Times of event - redacted
Aldi store - Charlton, Brocklebank Retail Park
Amount on ticket charge - £120
Proof of purchase - credit card statement extract attached
Dates of the appeal - redacted
Dates of appeal rejection - redacted
Reason for appeal rejection - "Whilst we note your comments and reason for appeal, we can confirm that the maximum stay period within this car park is 1 hour and 15 minutes. As your vehicle was on site for 1 hour and 45 minutes, this was an overstay of 30 minutes. The signage on site clearly sets out the terms and conditions of parking, including the maximum stay period. There are no exceptions to these terms and we can therefore confirm that this PCN has been issued correctly."

Frustratingly our house is a mess due to a kitchen renovation so can't find the bloody parking notice

Coupon-mad

In your POPLA appeal, make sure you quote the BPA CoP about new or changed terms in car parks and the mandatory requirement for additional prominent signs to draw any significant new restriction to a driver's attention.

You can argue that changing the known and (large text) advertised '3 hours free' down to less than half every so often is a significant change that would need far clearer signs on 'match days' (whatever that means).  This is an unclear and unfair term, which distinguishes this case from Beavis.  It is a 'concealed pitfall or trap' (Supreme Court's own phrase, where they talked about what would not be allowable in a car park).

You can also add that terms must be 'clear and unambiguous' (Consumer Rights Act 2015) and vague but unexplained free parking time differences on unidentified 'match days' fall foul of that statutory requirement. 

Parkify

My proposed appeal. Comments welcome.  (Ignore the formatting, which doesn't like this website).

Dear All

This letter contains my appeal, as registered keeper of the relevant vehicle, against Parking Charge Notice (Removed by Forum Team), improperly and unfairly imposed by Premier Park Limited.  The appeal is on inter alia the following grounds.

1. First, the notice to keeper is not compliant with Paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).  It does not meet the minimum requirements of PoFA and was therefore issued incorrectly.  It is therefore fatally flawed and cannot be relied upon to pursue payment of a parking charge.  This is for inter alia the following reasons:

• The notice to keeper alleges the vehicle was parked at Home Bargains Charlton.  This is incorrect.  It also does not identify the landlord with which the operator is contracted.  It therefore fails to identify the "relevant land on which [the vehicle] was parked" as required by paragraph 9(2)(a) of Schedule 4 of PoFA.
  
  
• The notice to keeper does not state that the operator does not know both the name of the driver and a current address for service for the driver, and invite the keeper to pass the notice on to the driver, as required by paragraph 9(2)(e) of Schedule 4 of PoFA.
• The notice to keeper does not specify the time at which the notice was given, as required by paragraph 9(2)(d)(i) of Schedule 4 of PoFA.

1. Second, the signage is insufficient for a contract to exist between the operator and driver.  In any event, even if a contract did exist between the operator and the driver (which is denied), the signage is insufficient to support the inclusion of a term in that contract reducing the maximum period from 3h to 1h45m on a 'match day'. This is for inter alia the following reasons:

• The alleged parking charge relates to a stay of 1h45m. The images of the signs in the retail park available on Google Maps show that the signs say in large letters that the maximum stay is 3h and below it says that it is reduced to 1h30m on match days (see attached image of the sign from the relevant entrance, sourced from Google Maps, noting that no evidence has been provided as to what signs may have been in place on the relevant date).
• There is no indication on the sign or elsewhere in the retail park as to (i) what sport's match days are relevant, (ii) what club's match days are relevant and (iii) what days are match days where the alleged shorter maximum period applies.  At the point at which the vehicle was parked, there was no indication that it was a match day and there was no ability for the driver to identify it as such. 
  
• It cannot therefore be incorporated into any alleged contract between the driver and the operator (either expressly or impliedly, noting it is denied that such a contract exists) that the shorter maximum stay period applied on the relevant date. 
• Under English law, contracts are interpreted by applying an objective test as to how a reasonable person, considering the wider context of the agreement, would interpret the agreement.  A similar objective test is applied when considering whether or not a particular term may be implied into a contract to reflect the parties' intentions when the contract was entered into.  In other words, the construction of a contract involves ascertaining the intention of the parties, considering all the background knowledge that was available to the parties at the time of the contract (Investors Compensation Scheme v West Bromwich Building Society [1997] UKHL 28).
• Given the inability of a reasonable person parking at the retail park to identify whether or not any particular day was a 'match day' as alleged on the sign, a term reducing the maximum period from 3h to 1h45m could not form part of the contract (either expressly or impliedly), as that information does not form part of the background knowledge that was available to the parties at the time of the contract. 
• The failure to incorporate by reference the reduced maximum period into the contract means the entire alleged contract is unenforceable as "unless all the material terms of a contract are agreed, there is no binding obligation" (Foley v Classique Coaches [1934] 2 KB 1).  
• The requirement for the operator to incorporate by reference terms clearly and unambiguously into a contract is also found in the consumer protection legislation, discussed further below.  In particular, a court must consider whether the operator "dealing fairly and equitably with the consumer could reasonably assume that the consumer would have agreed to the term had the contract been negotiated on equal terms" (C-415/11 Aziz as discussed in the Competition and Market's Authority's guidance on unfair contract terms (CMA37) at paragraph 2.23).  
• The signage is therefore clearly insufficient to support the parking charge notice.
• In any event, the operator has provided no evidence that the signs that found the basis of the alleged contract between the operator and driver were in place at the site on the relevant date.

1. Third, the operator has not identified the landlord of the site nor have they proven that they have authority from the landowner to manage the site.  Absent evidence of such authority, including the provision of the terms of such authority, the operator cannot show to the requisite evidential standard that it had the authority to enter into the alleged contract with the driver and therefore it cannot sustain the parking charge notice.

1. Fourth, the signage at the site was not in accordance with the British Parking Association (BPA) Code of Practice (COP).  Paragraph 19.10 of the BPA COP states: "Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones."  The reduction of the maximum period from 3h to 1h30m is a "change in the terms and conditions that materially affects the motorist" and the failure to identify relevant match days is not clear on the signage as required.  Rather, signage on 'match days' would need to be far clearer.   

1. Fifth, terms in a consumer contract must not be "unfair" under the Consumers Rights Act 2015.  A term will be unfair if it contains a "concealed pitfall or trap" (see Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at paragraph 17, as cited by the UK Supreme Court in ParkingEye Limited v Beavis [2015] UKSC 67 in at paragraph 205).  Fairness requires the operator to act in 'good faith', which includes an obligation of 'fair and open dealing'.  This means the operator should not "whether deliberately or unconsciously, take advantage of the consumers' circumstances to their detriment" (Lord Bingham of Cornhill in Director General of Fair Trading v First National Bank plc 2001 [2002] 1 AC 481, as discussed in CMA37 at paragraph 2.23).  The reduction of the maximum stay period by half without any indication as to on what days this reduced period would apply is a clear "concealed pitfall or trap" and therefore the alleged contract is unfair and unenforceable.

In summary, for inter alia the reasons set out above there is no contract (express or implied) between the driver and the operator and, even if there were (which is denied), it would be unenforceable.  The parking charge notice should therefore be set aside, and the operator admonished for its unfair and predatory behaviour. 

Regards

Parkify

How do I edit a post? Would like to remove pcn number from draft. 
Also going to remove emotion from introduction and conclusion. 

Coupon-mad

I don't think you can edit yet but I like that POPLA appeal! Very good.

The only issue I saw was that twice, you say they reduced the free stay time to 1hr45 mins but in fact it's 1hr 30, isn't it?

Fruitcake

If you are concerned you can report your own post and tick the box about it containing personal data, and/or you can ask a board guide to remove it by sending a PM to soolin or savvy.

Parkify

Coupon-mad said:

I don't think you can edit yet but I like that POPLA appeal! Very good.

The only issue I saw was that twice, you say they reduced the free stay time to 1hr45 mins but in fact it's 1hr 30, isn't it?

Good spot, that was an error - reduced free stay time was 1hr30, the period the driver stayed was 1hr45