Premier Park PCN - POPLA Appeal

carrots29

Hi there, I have put together the following draft POPLA appeal after reading and borrowing from various posts.  If anyone were able to take the time to read through and let me know if they have any comments I would be most grateful.   My main query relates to the second bullet point that I have included in the Mitigating circumstances section.  The driver did walk over to Sainsburys that has its own car park and it seems unfair that it isn't possible to take advantage of the parking time for that car park too.  If it is nonsense then please let me know and I'll take it out and not waste their time.  I also need to recheck the signage at the car park entrance so that is why a few bits in the signage section are in square brackets.  Thank you!!

"I was issued with a parking ticket on 26 April 2022 but I believe it was unfairly issued. I declined the company’s invitation to name the driver, which is not required of me as the keeper of the vehicle. I will not be paying the demand for payment for the following reasons:

 

·         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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices (PCNs), that the agent is authorised on the material date, 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 CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP 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

 

• There was insufficient 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 majority of the wording of the sign, 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:

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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 in the middle of parked cars, at a high level of height, and some are broken. They are unremarkable, not immediately obvious as parking terms and the wording is in lots of different fonts with the maximum stay time in particular displayed in a smaller font. 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 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:

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.

carrots29

Part 2

·         Genuine customer' exemption criteria unevidenced and not explained to drivers.

This parking operator offered parking to shoppers of the retailers. It is not disputed that the occupants of the car were genuine shoppers.  In fact I have contacted Homebase, the principal retailer on the site that the car park serves, and they have confirmed that the occupants were customers and have specifically requested that Premier Park cancel the PCN.  A copy of this letter has been sent to Premier Park and is attached to this appeal.

In addition to this, and notwithstanding that the driver has not been identified, I understand from my research of other cases that certain operators supply a 'User Manual' or 'Site Manual' to all retailers which allows for 'genuine customers' to have their charges cancelled (regardless of whether a shopper overstayed).

It is noted that the contractual terms on the signage fail to advise customers of this secret clause or the ceiling of 'total spending' above which a parking charge will be cancelled, so visitors have no way of knowing these terms.

I contend that the occupants of the car did spend enough in the retailers for the PCN to be cancelled and if the operator disagrees I require sight of the full 'discretionary criteria' clause from the User Manual which forms a vital part of their contract with the landowner and agreement with the retailers. This will need to be a true copy and show the circumstances under which the operator will cancel a charge for a genuine customer, including any defined total spend limit where the clause applies.

POPLA please note: this is NOT a point of mitigation, this is a case of this operator failing to evidence that they have correctly applied the 'criteria' (whatever it might be) in the site/User Manual and if they cannot evidence that they did, then the parking charge cannot be considered 'properly given' at the point of refusing my appeal. A Site/User Manual sets out the criteria under which the parking enforcement operates from the retailers' informational point of view and it forms a vital part of the landowner contract which is relevant to this appeal.

If this operator remains silent on any appeal point then it is deemed accepted.

 

·         Mitigating circumstances

 

There are mitigating circumstances to explain why the vehicle was parked where it was and the charge should be waived for this reason.

 

(a)  the driver has a mental health disability and therefore required extra time in accordance with the strict requirements of the Equality Act 2010 and the Mental Health Act 1983; and

 

(b)  the driver also went to the Sainsburys that is adjacent to the car park serving Homebase and Pets at Home, but served by a separate car park.  Had they not walked to this Sainsburys but driven the 100 metres to the separate car park then they would have been within the respective 2 hours for each car park.  I would submit that it would not be appropriate to waste petrol and increase emissions and instead allow drivers using more than one section of the retail park to stay parked in one place for longer whilst using the wider facilities?  

·         The charge is disproportionate and not a genuine pre-estimate of loss

The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.

In my case, the £100 charge being asked for far exceeds the cost to the landowner of my car overstaying in the car park.  The car park was not full so was not stopping anyone else from parking there so I do not understand why any cost were incurred by the landowner. I therefore feel the amount you have asked for is excessive.

I look forward to hearing from you and thank you for your consideration."

Umkomaas

The driver did walk over to Sainsburys that has its own car park and it seems unfair that it isn't possible to take advantage of the parking time for that car park too.  If it is nonsense then please let me know and I'll take it out and not waste their time. 

That's 'death wish' stuff. Forget it. No place for any mini-rant in a POPLA appeal, it won't help you one iota, much more likely, the opposite. 

The charge is disproportionate and not a genuine pre-estimate of loss

The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.

In my case, the £100 charge being asked for far exceeds the cost to the landowner of my car overstaying in the car park.  The car park was not full so was not stopping anyone else from parking there so I do not understand why any cost were incurred by the landowner. I therefore feel the amount you have asked for is excessive.

I don't know where you found this, because it has been absolutely not appropriate for 7 years since The Supreme Court put the kibosh on it in the ParkingEye v Beavis case in 2015. 

Coupon-mad

Yep remove all of this (what you need instead is a section explaining that there are 2 car parks next to each other and no clear delineation of signage between them.  You also need photos of signs, including a lack of signs at the accessible bays, if you used one) :

 

·         Mitigating circumstances

 

There are mitigating circumstances to explain why the vehicle was parked where it was and the charge should be waived for this reason.

 

(a)  the driver has a mental health disability and therefore required extra time in accordance with the strict requirements of the Equality Act 2010 and the Mental Health Act 1983; and

 

(b)  the driver also went to the Sainsburys that is adjacent to the car park serving Homebase and Pets at Home, but served by a separate car park.  Had they not walked to this Sainsburys but driven the 100 metres to the separate car park then they would have been within the respective 2 hours for each car park.  I would submit that it would not be appropriate to waste petrol and increase emissions and instead allow drivers using more than one section of the retail park to stay parked in one place for longer whilst using the wider facilities?  

·         The charge is disproportionate and not a genuine pre-estimate of loss

The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.

In my case, the £100 charge being asked for far exceeds the cost to the landowner of my car overstaying in the car park.  The car park was not full so was not stopping anyone else from parking there so I do not understand why any cost were incurred by the landowner. I therefore feel the amount you have asked for is excessive.

I look forward to hearing from you and thank you for your consideration."

carrots29

Ok thanks for the feedback, I will take those bits out.  I thought I had got that bit from the MSE standard template but clearly got confused.

Coupon-mad

You will need photos of lack of signs and unreadable text. Don't rush it without pics! 

carrots29

Ok will do, thank you.  Do you know how much weight POPLA may give to the letter from Homebase.  I hoped that might be a clincher but wondered if you had any experience of how retailer letters are viewed. 

Coupon-mad

It won't be given huge weight by POPLA but will by the PPC.

In fact, if it were me, I'd be emailing the PPC a copy now and telling them if they don't cancel the PCN you will proceed to POPLA (the code lasts a month, so work out what deadline to give the PPC to cancel and hold off the POPLA appeal accordingly). Tell them they have no legitimate interest in proceeding, now that they know the retailer wants it cancelled.

carrots29

OK thank you, very helpful