Premier Park - Brixham

Umkomaas · 25 August 2017 at 5:12PM

Old_Eyes wrote: »

All that advice is appreciated and I'll do some research. I cannot see on the PCN who owns the car park. I've read it several times now, and can't locate that information

It won't tell you who the landowner is on the NtK. You'll need to do some searching like via Google, or any outlets attached to the car park, or the local authority planning office, or the local Valuation Office - any of those might be able to give you the information.

You can also pay the Land Registry (£3 or £4) and they will give you absolute confirmation.

Coupon-mad · 26 August 2017 at 1:00AM

Old_Eyes wrote: »

All that advice is appreciated and I'll do some research. I cannot see on the PCN who owns the car park. I've read it several times now, and can't locate that information

Seriously, you think the scammers will tell you?! Nope. It's for you to find out.

Old_Eyes · 29 August 2017 at 2:19PM

Umkomaas wrote: »

It won't tell you who the landowner is on the NtK. You'll need to do some searching like via Google, or any outlets attached to the car park, or the local authority planning office, or the local Valuation Office - any of those might be able to give you the information.

You can also pay the Land Registry (£3 or £4) and they will give you absolute confirmation.

Thanks. I have access to Land Registry, so I'll use that.

Old_Eyes · 13 September 2017 at 2:17PM

Hi Everyone, I have no had my initial appeal rejected and below is my first draft of POPLA appeal, using templates from here.

I would be eternally grateful if you could advise on any changes required.

All your help is much appreciated.

Thanking you in advance

Dear POPLA adjudicator,

POPLA Reference XXXXXXX
Incident date XXXXXXX
Car registration XXXXXXX
PCN Number XXXXXXX
Operator Name Premier Park Ltd

I am writing to challenge a parking charge notice received for parking at the Brixham Marina Bay Car Park on xx/2017.

To protect the driver, they have not been named.

My appeal as the registered keeper is as follows:

Insufficient grace periodThe operator has not shown that the individual who it is pursuing is in fact
liable for the charge.
No evidence of Landowner Authority
Inadequate signage.

No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of a mere 33 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (13.2) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Kelvin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“Implications of the 10 minute graceperiod were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute graceperiod.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

It is very clear from the evidence that Premier Park Ltd have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 33 minutes.

Premier Park Ltd have failed to inform the driver of the amount of time spent prior to the driver purchasing the ticket and the time spent after the paid for period ended. I object to the unclear information in the PCN and reserve the right to comment when Premier Park Ltd finally show the timings transparently. Their ANPR cameras only capture entry and exit at the opening to the car park - they cannot possibly measure the actual time of parking purchased (and timed) via the P&D ticket.

In this case there was nothing on the signs at the entrance or anywhere clearly seen, that informed the driver that the timing could possibly start at the point of entry as oppose to the point of purchase. The driver had no idea; nor does the Pay and Display machine give people any information to suggest that the time on the printed ticket is actually wrong and misleading. Surely this is a misleading business practice, any reasonable driver would expect the time to start when the ticket is printed (which is the point that the contract is effected) and rely upon their hour expiring when the receipt says - anything else is perverse and a twisted interpretation of contract law.

It also must be made abundantly clear at this point, that this was the height of Summer at a very popular beach and tourist car park, where spaces were at premium and there was a lengthy wait for a space to form. Even then, the family, with 3 very young children, vacating the said space, took an inordinate time to load their car with their two buggies and seaside baggage. After waiting this time, the driver then encountered an incredibly lengthy queue to buy a ticket, where only one machine was working on that level and every tourist arriving at that time to purchase.

This time period was then added to upon leaving the car park. The driver had returned in good time, within the 5 hours of purchase of the ticket, but had to wait as their car was very hot and they had 3 children under the age of 7, they had to wait for the car to cool. There were then further interruptions caused by pedestrians with deck chairs, buckets and spades, blocking the exit, and additional delays from turning/parking/leaving cars. The driver had to give way to those cars newly arriving, and those cars leaving bays closer the exit than their car. The driver also had to queue for a couple of minutes at the exit until they could safely rejoin the main road (which was extremely busy, being 6.30pm with tourists leaving Brixham).

It is noted that the 'exit' ANPR camera records the VRN only when at the very front/actually exiting onto the road, despite the fact this is a main road where a car cannot possibly turn straight out immediately even if there is no queue (which there was).

It is clear from the above that Premier Park Ltd have failed to allow the mandatory MINIMUM Grace Period set out in the BPA Code of Practice. Adequate time must be allowed and this would differ from site to site, allowing for the issues I have mentioned above which are specific to a busy beach car park, in a busy seaside town at the height of summer, adjacent to a main road, where a car can't just leave within seconds without ploughing into pedestrians or other cars!

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable. In fact this case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

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

Where a charge is aimed only at a driver then, of course, no other party can be told to
pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout
(as I am entitled to be), and 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this
case, 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 – they will fail to show I can be liable because the driver was not me.

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."

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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 n
eed to consider the other grounds of appeal raised by the appellant. Accordingly, I
must allow this appeal."

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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

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.

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.

''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.''

''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.

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.

RobinofLoxley · 13 September 2017 at 11:28PM

Just briefly skimmed through your draft. A few things I've noticed.

Your first point re Grace Periods.

Kelvin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

An observation period is for when a parking attendant is present and is not relevant to your case in which PP used ANPR cameras

It is very clear from the evidence that Premier Park Ltd have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 33 minutes

You said in your original post the overstay was 23 minutes.

This time period was then added to upon leaving the car park. The driver had returned in good time, within the 5 hours of purchase of the ticket, but had to wait as their car was very hot and they had 3 children under the age of 7, they had to wait for the car to cool. There were then further interruptions caused by pedestrians with deck chairs, buckets and spades, blocking the exit, and additional delays from turning/parking/leaving cars. The driver had to give way to those cars newly arriving, and those cars leaving bays closer the exit than their car. The driver also had to queue for a couple of minutes at the exit until they could safely rejoin the main road (which was extremely busy, being 6.30pm with tourists leaving Brixham).

Your car may have been hot but having to wait for it to cool down before leaving won't wash with the assessor as an excuse. Neither will pedestrians with deck chairs, buckets and spades I'm afraid.

The whole of your point #2 seems to be that PP aren't relying on POFA to transfer liability of the charge to you the keeper.

I'm fairly sure without seeing the actual NTK (you haven't put up a scan of it) that PP will be relying on POFA to make you liable, as seen in other PP NTK's. They don't know the name of the driver (unless you have told them) so are after you as the keeper. You have to pick holes in their NTK and show to the assessor why it doesn't comply with POFA and is therefore invalid.

Old_Eyes · 14 September 2017 at 10:03AM

Thanks Robin - very helpful. Yes should be 23, not 33 minutes; and the comment about the car cooling, buckets and spades etc. is noted.

With regard the observation period, should I remove that entire paragraph? Or simply remove this sentence "An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park."

Is there anywhere I could find about the NTK and whether it is in accordance to POFA?

Umkomaas · 14 September 2017 at 10:08AM

Is there anywhere I could find about the NTK and whether it is in accordance to POFA?

Compare your NtK pedantically against the following. It needs to comply perfectly. 'Near enoughs' won't do.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

http://www.parkingcowboys.co.uk/keeper-liability/

Old_Eyes · 27 September 2017 at 4:00PM

Umkomaas wrote: »

It won't tell you who the landowner is on the NtK. You'll need to do some searching like via Google, or any outlets attached to the car park, or the local authority planning office, or the local Valuation Office - any of those might be able to give you the information.

You can also pay the Land Registry (£3 or £4) and they will give you absolute confirmation.

The land is owned by the council. Makes no mention of Premier Park.

Title absolute 1 (12.09.2011) PROPRIETOR: THE COUNCIL OF THE BOROUGH OF TORQUAY of Town Hall, Torquay TQ1 3DR.

Old_Eyes · 27 September 2017 at 4:01PM

The deeds also show a small spot of land, at the entrance, that isn't even included under the title.

NOTE: The land tinted green on the title plan is not included in the title.

Not sure if that assists me?

Coupon-mad · 27 September 2017 at 11:46PM

Old_Eyes wrote: »

The land is owned by the council. Makes no mention of Premier Park.

Title absolute 1 (12.09.2011) PROPRIETOR: THE COUNCIL OF THE BOROUGH OF TORQUAY of Town Hall, Torquay TQ1 3DR.

If you have not yet submitted your POPLA appeal, add another point that the land in question is Council-owned, therefore (whatever the operator says about it) the land is not 'relevant land' as defined in the POFA 2012. And therefore, the registered keeper cannot be held liable. Then show an embedded image of the entry/and or map you got from the Land Registry where it names the Council as landowners.

You can't add new stuff if you've already submitted a POPLA appeal, BTW; they won't let you.

Premier Park - Brixham

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