POPLA appeal support re Premier Park PCN

Piggl8

Good evening,

I have been reading through all of the posts and guidance available and just wondered if anyone can offer any support or confirmation that I am on the right track with my POPLA appeal. I have until Sunday 17th to submit it. I am aware there is a template and that the appeal should be lengthy and have multiple arguments.

Background:
The car was parked in a private car park run by Premier Park while on holiday, paying for up to 2 hours using their PDT machine and receiving a ticket in response to this (the ticket has since been discarded). The vehicle left within the 2 hours, but I have been slapped with a PCN 'fine' / notice to keeper. I have not disclosed who the driver was. Initial appeal to PP has been declined and I have been given a POPLA code. I attach the NTK with redacted personal info.

It seems to me there is no ability for PP to transfer liability from the driver to the keeper with this particular NTK, as they have not issued it within 14 days (and therefore not POFA compliant), nor have they mentioned the intention to transfer the liability from keeper to driver. Am I right in this conclusion? This will be the crux of my argument.

In addition, there is the issue of the payment made. A payment of £1.60 was made which overpays the required fee, which I believe to be £1.50, so a few things could have happened here -

Either the PDT machine is faulty
A part payment was made
A keying error was made so the payment couldnt be linked to VRM
An over payment as not the exact amount has resulted in the payment not being linked to VRM
PP are completely trying their luck as they think Im a sucker who will just pay up

My initial appeal asked for evidence from the payment log of payment/s made (the NTK reason for issuing the PCN suggested to me a part payment was made - whole period not paid for) but they came back to say no payment was able to be cross-referenced.

I was also going to add a point about their not having authority from the landowner to issue tickets etc

Will it be enough to argue on these 3 points?
1. NTK not POFA compliant and therefore no liability can be transferred to keeper
2. They need to evidence a payment was not made, rather than just that the car was at the scene i.e. produce the payment logs which should hopefully reveal something more
3. PP do not have the landowners permission to issue tickets

Thank you in advance!

Edited to add the second page of the NTK and also to say I have tried 'Plan A' with no joy.

Coupon-mad

Piggl8 said:

I was also going to add a point about their not having authority from the landowner to issue tickets etc

Will it be enough to argue on these 3 points?
1. NTK not POFA compliant and therefore no liability can be transferred to keeper
2. They need to evidence a payment was not made, rather than just that the car was at the scene i.e. produce the payment logs which should hopefully reveal something more.

Very good.

Yes, argue those 3 points, starting with the fact this NTK is Non-POFA. No keeper liability.

100% win because this was in September, so the 1st October joke of the 'joint CoP' doesn't apply.  You are safe from that useless rubbish.

I wonder if POPLA decisions by the end of this year will start to spout the new CoP farcical statement (unlawful) that the keeper can just be presumed to have been driving. Rollicks!

Piggl8

Thanks for your reply.

I have my first draft ready below and wonder if you could take a look and let me know what you think? I'm not sure about leaving in the bit about the charge, as whilst true, I don't know if I've done it enough justice compared to the rest of the wording (pulled largely from the template information). I have made it as lengthy as I think I can, as recommended.

Thanks again for any guidance 

Posted in separate comments as I havent got time to work out the drop box thing *eyeroll* 

Vehicle registration:

POPLA ref:

 

I, as the registered keeper of this vehicle, received a letter dated 20th September 2024 acting as a notice to the registered keeper (NTK). My appeal to the operator – Premier Park Ltd (PP) – was submitted and acknowledged on 3rd October but subsequently rejected by an email dated 21st October 2024. 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.       The NTK issued is not POFA compliant

2.       The operator has not shown that the individual who it is pursuing is in fact the driver

3.       There is no evidence of landowner authority

4.       The car park signage is inadequate

5.       There is no evidence that a payment was not made

 

1.   The NTK issued is not POFA compliant

The NTK is not compliant with Schedule 4 Paragraph 9 of PoFA and does not therefore allow for transfer of liability from the driver to the keeper.  Paragraph 9 (2)(f) states:

9 (2) The notice must—

f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Further, Paragraph 9 (4) (5) (6) state:

(4) The notice must be given by—

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

According to PoFA’s timeline, as the NTK was served on 20th September, it can be assumed to have been delivered 2 working days later, which would be 23rd September and a total of 23 days after the alleged parking event. The NTK was actually only received on 28th September, a total of 28 days later.

Please see photographic evidence in fig 1 and 2 below.

[Insert photos of NTK front and back here]

In addition to this, the NTK reason for issue is ambiguous, stating “The reason we issued the Parking Charge to the vehicle is as follows: Whole period of parking not paid for (ANPR)”. This wording is ambiguous and could be interpreted as a part payment having been made or as no payment having been made. PoFA states the reason for the notice must be clear:

9 (2) The notice must—

(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

 

Lastly, the NTK does not mention PoFA legislation, or state any intention to transfer liability to the keeper, and as such no keeper liability can be established. The NTK states: “You are advised that if, after the period of 28 days with the day after that on which the notice is given, the amount of the unpaid parking charge specified in this notice has not been paid in full, we will have the right to recover the parking charge amount that remains unpaid from the driver of the vehicle”.

 

2.       The operator has not shown that the individual who it is pursuing is in fact the driver

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

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 purported 'NTK' was served or not, because 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.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, 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 issued 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.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye 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.''

 

Piggl8

post 2 of 2 

3.       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

 

4.     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:

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+sign_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:

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.

 

 

5.       No proof has been put forth that a payment was not made.

While the ANPR evidence confirms the vehicle was at the scene, the NTK does not prove a payment was not made. The driver reports a payment of £1.60 was accepted by the onsite PDT machine and a ticket produced in response to payment. The driver reports this has unfortunately since been discarded, however PP hold a record of payments within their PDT machine payment log. Therefore, the burden of proof sits with PP to evidence a full, part or missing payment for the period in question, against this registration or any similar registration number/s in case of keying errors. The NTK wording for the reason for issue “Whole period of parking not paid for” is ambiguous and suggests a part payment was made and if this is the case, PP would be able to evidence this. PP has since stated in their first appeal rebuttal that no payment was made at all, therefore evidence should be provided to rule out a keying error or other anomaly, requiring the whole payment log for that day to be produced and not just a cursory search for exact matches against the VRM.

 

[End]

KeithP

Piggl8 said:

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

No it isn't. That link doesn't do what you want it to do.
Might be a good idea to check the other links.

Piggl8

KeithP said:

Piggl8 said:

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

No it isn't. That link doesn't do what you want it to do.
Might be a good idea to check the other links.

Thank you for pointing that out - i had not checked it as this section was lifted from a suggested template.

What about the rest - was that ok?

Piggl8

Coupon-mad said:

Piggl8 said:

I was also going to add a point about their not having authority from the landowner to issue tickets etc

Will it be enough to argue on these 3 points?
1. NTK not POFA compliant and therefore no liability can be transferred to keeper
2. They need to evidence a payment was not made, rather than just that the car was at the scene i.e. produce the payment logs which should hopefully reveal something more.

Very good.

Yes, argue those 3 points, starting with the fact this NTK is Non-POFA. No keeper liability.

100% win because this was in September, so the 1st October joke of the 'joint CoP' doesn't apply.  You are safe from that useless rubbish.

I wonder if POPLA decisions by the end of this year will start to spout the new CoP farcical statement (unlawful) that the keeper can just be presumed to have been driving. Rollicks!

Thank you Coupon-mad- I have posted a first draft above using what I believe was your template wording - do you have any feedback on this please? I need to check links as KeithP has pointed out one of them doesnt appear to link to what I think it does.

thank you all again for any help

Le_Kirk

If you leave links in you are expecting the POPLA assessor to go chasing round t'internet. Do you think they will? Better to embed what you want to say in the body of your text.

Coupon-mad

It's a winning appeal from point one. 

Piggl8

Thanks all. I have now submitted the appeal, and I'll update you when I get an outcome. 

Piggl8

Good evening,

So PP have defended their position, some of which was seemingly well prepared. For example, they have what looks to be a contract with the landowner and lots of photos of the site and signage, all to hand. Annoyingly, the landowner turns out to be the very people called to assist in cancelling said PCN in the firstplace, and who said (perhaps unsurprisingly) they were unable to help. 

What wasn't surprising, was the payment log they provided does in fact show a payment for the registration number, however the last 2 digits appear to be missing (this is deemed a 'keying error' I believe, though they have not identified it as such, nor acknowledged the entry in any way). They have pointed out that I did not mention the attempted payment in my initial appeal, which is true, so they cannot consider this now. I did ask them to provide the payment logs initially, with the intention of clearing up if an actual payment was made or perhaps a keying error, as the only explainations for the driver paying but still getting the PCN.  But they have ignored that, and chosen to be willfully blind to the entry or their ability to have done a 'fuzzy search' and find the entry.

They have stated their letter is POFA compliant and quoted wording which doesn't exist in their letter to me. Again, i believe as they haven't sent the NTK within 14 days, nor quoted POFA and the intention to transfer liability to keeper, the NTK itself is non compliant. 

I'm going to provide some concise responses to their points, but my main question is, are we sure that my pointing out the payment /keying error doesn't negate the fact the NTK is non compliant? Do they have any come back on the keying error? They shouldnt IMO, as any competent person would have found during the initial appeal the payment was made and any REASONABLE company would have cancelled it there and then (silly me!)

Advice welcome, thank you