POPLA Appeal against Premier Park Ltd.
sandra7281
Forumite 
I have just received your Notice to Hirer ******** for vehicle VRM **********.
I would like you to know I am not ignoring your letter suggesting my liability for a charge related to a parking infraction that you state took place on 09/07/2021 at *********.
I wish to outline my current position in reference to your PCN.
Keepers Liability and POFA 2012
As stated in paragraph 13(2) of POFA 2012...
"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—
(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) A copy of the hire agreement; and
© A copy of a statement of liability signed by the hirer under that hire agreement.
AND
Paragraph 14(2) and (3) of POFA 2012:
(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
© The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.[/I]
- You were required to send this information to the Registered Keeper within 21 days after receiving them from the lease/hire company.
- You were required to send these documents to the Registered Keeper no later than 49 days after the NTK was sent to the hire company.
- Therefore the Registered Keeper should have received these documents many months ago.
- As this has clearly not happened, you cannot use POFA to assume keeper liability. There is more than one driver of the vehicle which you placed a PCN on.
While my address has changed between the incident and the date of the Notice to Hirer, I was still in receipt of all mail to my previous address until 22nd January 2022, around 6 months after the incident, so this is no excuse as to the POFA requirements outlined above not being met.
Further, the Notice to Hirer comprised the notice itself but without any further documents. As you know, you are obliged by both POFA (Section 14, (6)) and the BPA Code of Practice to enclose the following:
Notice to Keeper - so that the hirer may satisfy themselves as to the validity and procedural propriety of the alleged breach and that you have followed prescribed procedures;
A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement, a copy of the hire agreement and a copy of a statement of liability signed by the hirer under that hire agreement, so that the hirer may satisfy themselves that the vehicle-hire firm has the right to transfer liability and that both they and you have followed mandated procedures to transfer this liability.
By omitting these documents you have not only not followed prescribed procedure you have denied me the ability to scrutinise your and the vehicle-hire company's actions and therefore give proper consideration to any appeal.
Further Questions
To begin our discussions, as this is purely a claim under a purported contract, and you have no statutory footing to issue penalties, I wish to make you aware of the following details and require the specific information so that I can assess the validity of your claim:
1. Who is the party that contracted with Premier Park Ltd for the provision of their services at the site of the alleged to have taken place in **********?
2. What is the full legal identity of the landowner?
3. As you are not the landowner, please provide a contemporaneous and unredacted copy of your contract with the landholder that demonstrate that Premier Park Ltd have the authority of the landowner to both issue parking charges and legislate in your own name or on behalf of the landowner.
4. Is your charge based on damages for breach of contract? - Yes or no?
5. If the charge is based on damages for breach of contract, please provide justification of this sum.
6. Is your charge based on a contractually agreed sum for the provision of parking? - Yes or no?
7. If the charge is based on a contractually agreed sum for the provision of parking please, provide a valid VAT invoice as you make no mention on VAT in any correspondence.
8. The signage to the site (from a seated position in the vehicle as it enters the car park is impossible to read and any specific rules regarding stopping on yellow lines being strictly prohibited at any time. Please provide a copy of the sign that purportedly forms the basis of the contract entered into by the driver for my records. Note that any photos of the signage should be timestamped to show they were up during the time of the alleged incident.
Next Steps
When I receive a full reply to all these questions, I will be able to furnish you with a full response.
Alternatively, please cancel this charge, and send me confirmation of no further action and my details being removed from your records.
Yours,
This got rejected, and I have been provided with a POPLA code, with the following:
Whilst we note the comments and reason for appeal, as per our photographic evidence, the vehicle was parked in contravention of the advertised terms and conditions. As the vehicle was parked without a valid permit on display, we can confirm that this PCN has been issued correctly.
It would appear that you believe we are obligated under the General Data Protection Regulations (GDPR) to supply you with information that is not deemed to be personal data.
It may be worthwhile reading the following link from the Information Commissioners Office (ICO) which gives a clear definition of Personal Data:
ht tps://ico.org.uk/for-organisations/guide-...-personal-data/
Therefore, we must advise, the additional information you have requested does not fall under your rights with regard to Article 15 of GDPR and therefore we will not be providing this to you.
Dear Sir/Madam
Re: PCN No. XXXX
Vehicle Reg: XXXX
I, the hirer of this vehicle, received a letter dated 14/11/2022 acting as a
PCN Notice to Hirer with regards to an event dated 09/07/2021. My appeal to the
operator – Premier Park Ltd. – was submitted and acknowledged by the operator
on 23/11/2022 and rejected via an email dated 20/12/2022. I contend that I, as
the hirer of the vehicle, am not liable for the alleged parking charge as it
has been both unfairly and unlawfully issued and wish to appeal against it on
the following grounds:
1) The Operator failed to deliver a Notice to Keeper in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
2) The Notice to Hirer failed to meet the obligations of Schedule 4 of the POFA
Act 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph
13 (2).
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) No Evidence of Landowner Authority - the operator is put to strict proof of
full compliance with the BPA Code of Practice.
5) 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.
1) The Operator failed to deliver a Notice to Keeper in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA). Premier Park Ltd. have not supplied copies of the Parking Charge Notices issued to the owner of the vehicle. I believe they failed to do so inside the 14 day relevant period stipulated in Schedule 4, Paragraph 9, sub-paragraph 5 of the Protection of Freedoms Act 2012 (POFA). The hirer cannot be liable for the creditors failure to comply with the Provisions in Schedule 4 to the Protection of freedoms act at paragraph 14 and its sub paragraphs or Paragraph 13.
2) Notice to Hirer failed to meet the obligations of Schedule 4 of the POFA
Act 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph
13 (2), whereby the creditor/parking operator must meet the conditions of
Schedule 4 of POFA in order for them to be able to invoke keeper liability for
a Parking Charge. This involves providing a Notice to Hirer, along with a
Notice to Keeper as well as:
a) a statement signed by or on behalf of the vehicle-hire firm to the effect
that at the time the vehicle was hired to a named person under a hire
agreement;
b) a copy of the hire agreement; and
c) a copy of a statement of liability signed by the hirer under that hire
agreement.
These documents have not been supplied to me at all and within the ‘relevant
period’ of 21 days beginning on the day after that on which the documents
required by 13 (2) are given to the creditor - as per PoFA.
As stated in paragraph 13(2) of
POFA 2012...
"The creditor may not exercise the right under paragraph 4 to recover
from the keeper any unpaid parking charges specified in the notice to keeper
if, within the period of 28 days beginning with the day after that on which
that notice was given, the creditor is given—
(a) A statement signed by or on behalf of the vehicle-hire firm to the effect
that at the material time the vehicle was hired to a named person under a hire
agreement;
(b) A copy of the hire agreement; and
(c) A copy of a statement of liability signed by the hirer under that hire
agreement.
and
Paragraph 14(2) and (3) of POFA 2012:
(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in
accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy
of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was
given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of
parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days
beginning with the day after that on which the documents required by paragraph
13(2) are given to the creditor.
- Premier Park Ltd. were required to send this information to the Registered
Keeper within 21 days after receiving them from the lease/hire company.
- Premier Park Ltd. were required to send these documents to the Registered
Keeper no later than 49 days after the NTK was sent to the hire company.
- Therefore the Registered Keeper should have received these documents many
months ago.
- As this has clearly not happened, Premier Park Ltd. cannot use POFA to assume
keeper liability. There is more than one driver of the vehicle which Premier
Park Ltd. placed a PCN on.
While my
address has changed between the incident and the date of the Notice to Hirer, I
was still in receipt of all mail to my previous address until 22nd
January 2022, around 6 months after the incident, so this is no excuse as to
the POFA requirements outlined above not being met.
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
As the hirer of the vehicle, and for the reasons stated in Paragraphs 1 and 2
above, I am not liable for any parking charge in respect of this vehicle on the
date of the alleged event.
4) 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, 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
5) 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:
ht tp://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:
ht tp://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, 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:
ww w-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is
discussed here:
ww w.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:
ww w.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:
ww w.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.
The car park in question is especially confusing, given that
there are a number of free spaces available for anyone to park in without
permits, right next to the space where the car in question was allegedly
parked. There is no sign or any other indication that this space is not freely
available. The only signs Premier Park Ltd. claim to have put up are on the
other side of the road, completely invisible to a driver.
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.
Replies
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You were correct! Thank you for your help. Hopefully this appeal may help someone else in the future too.
Please post a synopsis (including which PPC you beat and what POPLA said) and link to this thread, in POPLA DECISIONS (near the top of this forum).
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