Tweet
Good Evening,
As per the title, my recent appeal to POPLA on behalf of the driver was unsuccessful and I would like some advice as to whether or not I should pay or fight this in court, assuming it gets that far.
Long story short; the driver waited in a Permit holders and service vehicles only area at the rear of a retail park. They entered this area twice and therefore received two PCN's. Both PCN's were appealed against, primarily based on signage not being clear.
Is there anything else that be done, or is it a case of waiting until it goes to court?
Many Thanks.
I will post below the information received starting with the most recent;
POPLA Decision;
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the motorist due to not gaining the appropriate permit/authorisation.
Assessor summary of your case
The appellant has provided an extensive document detailing their grounds of appeal, I have summarised these below. The appellant has questioned the signage at the site, and the driver’s acceptance of the contract. The appellant says the site was not lit on the day; they went to the site to take photographs. The appellant says the driver was not given a fair opportunity to read the signs to either accept or reject the offer. The appellant wants POPLA to refer to another POPLA appeal. The appellant says the amount of the PCN is extravagant and unconscionable for a 13-minute stay at the site. The appellant has mentioned the operator extending the discounted PCN offer. The appellant has expressed dissatisfaction with the operator’s handling of their appeal, they have not sent information requested. The appellant has provided evidence in support of their appeal.
Assessor supporting rational for decision
The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of the Protection of Freedoms Act (POFA) 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle. Therefore, it is the keeper’s liability for the PCN I will be considering. The signage at the site states: “…Permit Holders and Service vehicles Only. This area is for the use of service vehicles and permit holders only. Failure to comply with the terms and conditions will result in a Parking Charge of £100…”. The operator uses cameras to capture the registration number of cars entering and exiting the car park. I have checked the photographs, and I can see from the timestamp the vehicle was at the car park for 15 minutes. The operator has provided evidence which shows the vehicle was not authorised to park at the site. The operator issued a PCN to the motorist due to not gaining the appropriate permit/authorisation. When we invited the appellant to provide comments on the operator’s evidence, this was not an opportunity for the appellant to raise any new grounds for appeal or to provide any new evidence. As such, any further grounds for appeal raised in their comments cannot be taken into consideration. The appellant has questioned the signage at the site, and the driver’s acceptance of the contract. The appellant says the site was not lit on the day; they went to the site to take photographs. The appellant says the driver was not given a fair opportunity to read the signs to either accept or reject the offer. In relation to signage, Section 19.1 of the British Parking Association (BPA) Code of Practice states: “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 19.3 of the BPA Code of Practice states, “Specific parking-terms signage tells drivers what your terms and conditions are, including parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. Further to this, the BPA Code of Practice Appendix B states “signs should be readable and understandable at all times, including the hours of darkness or at dusk…” The appellant has stated the site was not lit on the day of the parking event, they have provided photographs of the site lit. I will work on the basis that this was is a true reflection of the site at night on the day of the event. The operator has provided images of signage at the site, along with a site plan for the car park. The appellant has also provided a comprehensive document detailing the site at night. The appellant’s evidence shows the site is perfectly lit at night. I can see from the evidence pack and the appellant’s evidence there is an entrance sign. Entrance signs are an important part of establishing a contract and would put the driver on notice that terms and conditions applied. Further, specific terms and conditions signage are placed around this site, detailing the terms of use. These signs are in contrasting colours and are clear and conspicuous to drivers who wish to use the site. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Had the driver taken time to read the signage they would have realised they were unable to comply as they did not have a permit, they could have left the site without forming a contract with the operator. By parking, waiting or remaining at the site, they became subject to the terms and conditions, which apply to all motorists that use the site. The appellant wants POPLA to refer to another POPLA appeal. POPLA considers appeals on a case by case basis, we do not look at other appeals. This report relates to POPLA verification code xxx, PCN xxx. The appellant says the amount of the PCN is extravagant and unconscionable for a 13-minute stay at the site. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within 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 independent assessment 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 is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. The appellant has mentioned the operator extending the discounted PCN offer. Section 19.7 of the BPA Code of Practice states: “If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost should be by at least 40% of the full charge”. Therefore, the operator is not obligated to offer the discounted period after the initial 14 days have elapsed. The appellant has expressed dissatisfaction with the operator’s handling of their appeal, they have not sent information requested. For clarity, any customer service issues regarding the way the operator dealt with the appellant’s initial appeal are outside of POPLA’s remit, and not in a position to comment. The signage at the site is clear that parking without a valid permit, regardless of the reason, would result in the issue of a PCN. By parking on site without a valid permit, the motorist has accepted the potential consequence of incurring a PCN. It is the duty of the motorist to ensure that when they have entered a car park that they have understood the terms and conditions before deciding to park. On this occasion by remaining parked at the site the appellant accepted the terms and conditions. As they parked without a permit, they did not adhere to the terms and conditions. As such, I conclude that the operator issued the PCN correctly.
Comments on Evidence Submitted to POPLA by Parking Eye;
The evidence provided by ParkingEye Ltd fail to address all of the points raised in the Appeal submitted to the POPLA website on xxx. Most notably; that the driver was unable to enter into a legally binding contract capable of acceptance due to the conditions outlined in that appeal. ParkingEye Ltd. have failed to address the key points of that appeal, these remain unchallenged, then clearly ParkingEye Ltd. agree with these assertions.
POPLA Appeal Attached; POPLA APPEAL REDACTED.pdf
As per the title, my recent appeal to POPLA on behalf of the driver was unsuccessful and I would like some advice as to whether or not I should pay or fight this in court, assuming it gets that far.
Long story short; the driver waited in a Permit holders and service vehicles only area at the rear of a retail park. They entered this area twice and therefore received two PCN's. Both PCN's were appealed against, primarily based on signage not being clear.
Is there anything else that be done, or is it a case of waiting until it goes to court?
Many Thanks.
I will post below the information received starting with the most recent;
POPLA Decision;
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the motorist due to not gaining the appropriate permit/authorisation.
Assessor summary of your case
The appellant has provided an extensive document detailing their grounds of appeal, I have summarised these below. The appellant has questioned the signage at the site, and the driver’s acceptance of the contract. The appellant says the site was not lit on the day; they went to the site to take photographs. The appellant says the driver was not given a fair opportunity to read the signs to either accept or reject the offer. The appellant wants POPLA to refer to another POPLA appeal. The appellant says the amount of the PCN is extravagant and unconscionable for a 13-minute stay at the site. The appellant has mentioned the operator extending the discounted PCN offer. The appellant has expressed dissatisfaction with the operator’s handling of their appeal, they have not sent information requested. The appellant has provided evidence in support of their appeal.
Assessor supporting rational for decision
The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of the Protection of Freedoms Act (POFA) 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle. Therefore, it is the keeper’s liability for the PCN I will be considering. The signage at the site states: “…Permit Holders and Service vehicles Only. This area is for the use of service vehicles and permit holders only. Failure to comply with the terms and conditions will result in a Parking Charge of £100…”. The operator uses cameras to capture the registration number of cars entering and exiting the car park. I have checked the photographs, and I can see from the timestamp the vehicle was at the car park for 15 minutes. The operator has provided evidence which shows the vehicle was not authorised to park at the site. The operator issued a PCN to the motorist due to not gaining the appropriate permit/authorisation. When we invited the appellant to provide comments on the operator’s evidence, this was not an opportunity for the appellant to raise any new grounds for appeal or to provide any new evidence. As such, any further grounds for appeal raised in their comments cannot be taken into consideration. The appellant has questioned the signage at the site, and the driver’s acceptance of the contract. The appellant says the site was not lit on the day; they went to the site to take photographs. The appellant says the driver was not given a fair opportunity to read the signs to either accept or reject the offer. In relation to signage, Section 19.1 of the British Parking Association (BPA) Code of Practice states: “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 19.3 of the BPA Code of Practice states, “Specific parking-terms signage tells drivers what your terms and conditions are, including parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. Further to this, the BPA Code of Practice Appendix B states “signs should be readable and understandable at all times, including the hours of darkness or at dusk…” The appellant has stated the site was not lit on the day of the parking event, they have provided photographs of the site lit. I will work on the basis that this was is a true reflection of the site at night on the day of the event. The operator has provided images of signage at the site, along with a site plan for the car park. The appellant has also provided a comprehensive document detailing the site at night. The appellant’s evidence shows the site is perfectly lit at night. I can see from the evidence pack and the appellant’s evidence there is an entrance sign. Entrance signs are an important part of establishing a contract and would put the driver on notice that terms and conditions applied. Further, specific terms and conditions signage are placed around this site, detailing the terms of use. These signs are in contrasting colours and are clear and conspicuous to drivers who wish to use the site. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Had the driver taken time to read the signage they would have realised they were unable to comply as they did not have a permit, they could have left the site without forming a contract with the operator. By parking, waiting or remaining at the site, they became subject to the terms and conditions, which apply to all motorists that use the site. The appellant wants POPLA to refer to another POPLA appeal. POPLA considers appeals on a case by case basis, we do not look at other appeals. This report relates to POPLA verification code xxx, PCN xxx. The appellant says the amount of the PCN is extravagant and unconscionable for a 13-minute stay at the site. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within 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 independent assessment 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 is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. The appellant has mentioned the operator extending the discounted PCN offer. Section 19.7 of the BPA Code of Practice states: “If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost should be by at least 40% of the full charge”. Therefore, the operator is not obligated to offer the discounted period after the initial 14 days have elapsed. The appellant has expressed dissatisfaction with the operator’s handling of their appeal, they have not sent information requested. For clarity, any customer service issues regarding the way the operator dealt with the appellant’s initial appeal are outside of POPLA’s remit, and not in a position to comment. The signage at the site is clear that parking without a valid permit, regardless of the reason, would result in the issue of a PCN. By parking on site without a valid permit, the motorist has accepted the potential consequence of incurring a PCN. It is the duty of the motorist to ensure that when they have entered a car park that they have understood the terms and conditions before deciding to park. On this occasion by remaining parked at the site the appellant accepted the terms and conditions. As they parked without a permit, they did not adhere to the terms and conditions. As such, I conclude that the operator issued the PCN correctly.
Comments on Evidence Submitted to POPLA by Parking Eye;
The evidence provided by ParkingEye Ltd fail to address all of the points raised in the Appeal submitted to the POPLA website on xxx. Most notably; that the driver was unable to enter into a legally binding contract capable of acceptance due to the conditions outlined in that appeal. ParkingEye Ltd. have failed to address the key points of that appeal, these remain unchallenged, then clearly ParkingEye Ltd. agree with these assertions.
- ParkingEye Ltd has failed to provide any evidence of a contract or a witness statement to show it has landowner authority and therefore it cannot be confirmed that the requirements of Section 7 of the BPA Code of Practice have been met and cannot confirm that the PCN has been issued correctly. Simply stating this without any evidence is not proof of authority.
- The signs terms and conditions state “By parking, waiting or otherwise remaining within this car park, you agree to comply with the Parking Contract, including making payment as required and entering your vehicle registration details via the payment and / or terminals.” There were no such “terminals” in the car park, nor other machines / mechanism present, nor means to enter the vehicle details and pay a consideration at that time and therefore a contract could not be formed based on these terms and conditions as they could not be physically met.
- The BPA Code of Practice states ‘signs should be readable and understandable at all times, including the hours of darkness… if the sign itself is not directly or indirectly lit…it should be made of a retro-reflective material…’. Since none of these signs are illuminated by direct or indirect light or made from retro-reflective material and they are placed way too high to be illuminated by car headlights then the terms and conditions cannot be read.
- The ‘stock’ photo provided by ParkingEye Ltd. does not state what or where this sign is located. It is not a reflection of the night time conditions and the operator has not provided evidence of signage displayed in the dark which is completely illegible. The driver did not see that sign and could never have been expected to see it.
- This sign is confusing at best and misleading. The terms and conditions (contract) contradict the larger lettering. It also displays a ‘P’ in a blue box, a universally recognised symbol for Car Parking. This sign is not ‘plain and intelligible’.
POPLA Appeal Attached; POPLA APPEAL REDACTED.pdf
