Proof read request for POPLA appeal - related to EV charging

Romeo_Mars

Hi All

Would appreciate if a kind person could take the time to review my appeal please.

Back story - Recently I received 3 PCNs from Premier Park via lease company (addressed to them and forwarded on to me) for "failure to pay for parking or hold an ePermit (ANPR)" for a car park that has EV chargers. The car was there solely for the purpose of charging.
I sent an appeal using the template for hirer/lessee from the newbies chat which was rejected and I'm now at the POPLA stage. 
NB: I will be making a complaint to the landowner.


POPLA appeal

I am the hirer/lessee of the vehicle referenced above. This is an appeal against the Parking Charge Notice issued by Premier Parking Ltd for an alleged breach of the company’s terms and conditions at xxxxxx, xxxxx on xxxxx. For the avoidance of doubt, the driver’s identity has not been provided, and this statement remains purely from the hirer/lessee and keeper.

I wish to challenge this Parking Charge Notice on the grounds that it was issued incorrectly and is invalid for the reasons below:

1.     Inadequate and unclear signage

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:

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:

 https://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.

Car park in question, location - inadequate signs

The car mentioned in the PCN is an electric car and has entered the car park for the sole purpose of charging the car at one of the Osprey EV charging bays. Premier Park Ltd has not given any evidence of any sign being present at the time of the alleged parking charge, particularly near the charging point, see images below. The BPA code requires signs to be clear, legible and positioned so that drivers can easily see and understand them before they park. At the EV bay the dominant signage is Ospreys with terminals displaying instructions for paying for charging. There is no clear indication that using the EV charger constitutes parking under Premier Park’s terms or that a separate parking fee or penalty applies during active charging by Osprey’s charging terminals. Consequently, no valid contract could have been formed between the driver and Premier Park Ltd.

 

Entrance

Car park on the right, charging bays on the left.

Sign on entry

Entrance - Osprey charging bay on the left

Inadequate signage

Distance of signage relative to charging bays (red arrow indicates sign location, yellow arrow indicates charging bays)

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 for electric vehicles. 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.

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.

 

2.     The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA')

In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (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), together with a copy of the Notice to Keeper. The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

Premier Park Ltd has failed to comply with Paragraphs 14 (5) (b) which specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper.
I did not receive a Notice to Hirer from the Operator at all. The only correspondence I received was a Notice to Keeper addressed to the leasing company, which was simply forwarded to me by them.
As Premier Park Ltd failed to send any such notice, and provided neither a copy of the Notice to Keeper nor the hire documents, they have not met the conditions required to transfer liability from the driver to the hirer.
Consequently, no keeper (hirer) liability can apply under POFA 2012, and only the unidentified driver could be liable.

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA's particular attention to the section entitled 'Keeper Liability' in which Mr. Greenslade explains that:

'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.......
.......... However keeper information is obtained, 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'.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.

3.     Lack of evidence of valid landowner authority by Premier Park Ltd nor are they the service provider for Osprey chargers.

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 vehicle was using an EV charging facility and not “parking”

The vehicle was not parked, but charging via an Osprey EV charger located within the car park. The attached image showing Osprey charging summary confirms the vehicle was connected and charging during the entire period Premier Park Ltd claims it was “parked”. For clarity I am the keeper of the vehicle but not the driver, and this evidence is submitted solely to show that no parking contravention occurred.

According to the BPA Code of Practice, s 13 and 18.3, operators must ensure signage clearly conveys the specific terms and conditions so that drivers are given adequate notice. Premier Park Ltd has failed to do so.

Attachment 

Osprey charging summary - driver unidentifiable

5.     Charge not justified under ParkingEye v Beavis [2015] UKSC 67

The Beavis case concerned a retail car park where deterrence was commercially justified. Here the driver was paying for a charging service, was not preventing others from parking and there was no comparable legitimate interest in penalising EV charging. Therefore, the charge is unconscionable and punitive, not a proportionate deterrent.

 

6.     Failure to comply with BPA CoP Section 19.3 (“shared use sites”)

Premier Park Ltd has no contractual authority over Osprey’s charging bays.
Osprey operates its own equipment, payment systems, and signage, under its own commercial lease or service agreement. Therefore, Premier Park cannot claim a contractual relationship with drivers using Osprey’s equipment.

BPA CoP, Section 7.1:
“If you do not own the land, you must have the written authorisation of the landowner… This authorisation must set out the definition of the land on which you may operate and any conditions or restrictions on enforcement.”

Section 19.3 requires operators to ensure that where multiple services operate on the same land, signage clearly indicates which areas each party controls. Premier Park Ltd’s signage fails to distinguish between general parking spaces and Ospreys charging bays. This ambiguity breaches the BPA Code and the Consumers Protection from Unfair Trading Regulations 208 rendering enforcement misleading and unfair.

If Premier Park’s landowner agreement does not specifically include authority over Osprey charging bays and equipment, the charge is invalid, and any enforcement action is outside their legal remit.

 

I respectfully request that POPLA reject this charge and uphold my appeal based on these grounds. 

Car1980

Don't submit the signs that don't help you! Popla rarely rule against the design of signage because a) it's been "audited" by the BPA, b) the BPA pay their wages, and c) the parking company would have to re-sign the whole site, possibly every site and they'd rather leave in a huff and join the IPC.

This is not a fair process remember. 

Again with Beavis - they won't find for you on that because that would undermine thousands of these cases.

The only photo you need is the one of the chargers and no signage.

Umkomaas

Place the 'No Hirer Liability Under PoFA' as your opening appeal point. That is the killer point!  

POPLA won't get involved in EV charging 'parking' issues (but leave that in for the PPC to have to deal with rebutting it). Make this as easy as possible for POPLA to find in your favour. 

James_Poisson

They will probably dismiss those signage photos as they have no date stamp on them.