Parking Charge for Stopping/Waiting less than 20 seconds!

and here's the latest version based on the valuable feedback from this forum:

Dear POPLA Assessor,

I am the registered keeper of vehicle registration XXXX XXX and I wish to appeal a recent parking charge number XXXXXXX using POPLA appeal code XXXXXX. My appeal was refused by ParkDirectUK because they believe the signage adequately stated the restrictions on site.

BACKGROUND
The driver unknowingly entered private land where parking is controlled by Park Direct UK.

As the driver stopped they noted the signs indicating no stopping or waiting on the land. The driver then immediately performed a 3 point turn and exited the private land. In total the vehicle was in and out of the land within 1 minute. Also note; the timestamps on images sent to the owner of the vehicle span no more than 25 seconds.

There are a number of additional points I would like to contest this unlawful charge:

1. British Parking Association Code of Practice: Grace Period
2. Inadequate Signage + No Contract agreed by driver
3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
4. No contract with the Landowner
5. The Charge is not a genuine pre-estimate of loss.

1. British Parking Association Code of Practice: Grace Period.

As a member of the BPA, ParkDirectUK would be subject to their Code of Practice which states in Section 13: Grace Period: 13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

The time in car park is noted to less than 1 minute and I feel that this constitutes a reasonable grace period to allow an informed decision and, following the decision to leave the car park, to leave without charge. As a result, the 3 above conditions have not been met by ParkDirectUK. Based on this, this appeal should be upheld. If this is felt not to be the case, I put it to ParkDirectUK to provide strict proof to the contrary and their reasons for going against their industry regulator’s best practice.

2. Inadequate Signage and Contract not agreed by driver

The signage at the entrance of the site does not communicate full contractual terms and conditions. Once the driver was on site only then there was additional signage which laid out ParkDirects terms and Conditions. The wording on those signs is very small and is not legible in a moving vehicle. The vehicle was present in the car park for less than 30 seconds, stopping in those brief seconds to read a sign that appeared to be making a contractual offer, having become aware that this was a binding offer the driver made the decision to reject the offer and left the car park, thus no performance of the contract was carried out, the sign can only be read from the first place the driver can stop; the supreme court Beavis Vs Parking Eye states very clearly in its judgement that the contract is performed by performance in parking and leaving the vehicle parked .

The vehicle was never parked, the offer was read and rejected and the driver left the car park within 30 seconds of entering deciding to reject the offer. The contract is not an adhesion contract, it is one served by performance and thus rejection is always an option, the offer was rejected and declined, no parking took place and therefore no contract exists.


3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

These are the omissions on the NTK taken from POFA 2012:
''9(2) the notice must—
(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(d) specify the total amount of those parking charges that are unpaid, as at a time which is—
(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

The NTK specifically fails on all the above counts.

The NTK does not meet the above requirements because this calls for the amount unpaid by the driver as at the day before the NTK was posted. There were no parking charges that the driver could have paid (and which could therefore be argued to be 'unpaid by the driver') because there was no mechanism to pay anything, it's not a P&D car park. The £100 was not invoiced until after the date specified in the Act.

The registered keeper is submitting this appeal and ParkDirectUK do not have the identity of the driver, who is not the registered keeper.

As ParkDirectUK has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

4. No contract with the Landowner

ParkDirectUK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.

ParkDirectUK has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

ParkDirectUK must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant ParkDirectUK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between

ParkDirectUK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.


5. The charge is a penalty and not a genuine pre-estimate of loss.

In its parking charge notice, ParkDirectUK has failed to produce sufficient evidence to justify the £100 loss the landowner might have incurred for the period of less than 1 minute on its property. For this charge to be justified, a full breakdown of the costs ParkDirectUK has suffered as a result of the vehicle being on that land, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any vehicle being on that land.

With all this in mind, I request that my appeal is upheld and for POPLA to inform British Parking Association Code of Practice to cancel the PCN.

Yours faithfully,

Many Thanks Coupon-mad _ I have just double checked the dates - was a mistake on my part. Contravention date was a Sunday (not Saturday) and the notice Served date was 3 days later on the Wednesday. Does the argument you put forward still stand?

OK many thanks again Coupon Mad. here is the final wording I'll submit to POPLA, will post back when i get any further update:

Dear POPLA Assessor,

I am the registered keeper of vehicle registration XXXX XXX and I wish to appeal a recent parking charge number XXXXXXX using POPLA appeal code XXXXXX. My appeal was refused by ParkDirectUK because they believe the signage adequately stated the restrictions on site.

BACKGROUND
The driver unknowingly entered private land where parking is controlled by Park Direct UK.

As the driver stopped they noted the signs indicating no stopping or waiting on the land. The driver then immediately performed a 3 point turn and exited the private land. In total the vehicle was in and out of the land within 1 minute. Also note; the timestamps on images sent to the owner of the vehicle span no more than 25 seconds.

There are a number of additional points I would like to contest this unlawful charge:

1. British Parking Association Code of Practice: Grace Period
2. Inadequate Signage + No Contract agreed by driver
3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
4. No contract with the Landowner
5. The Charge is not a genuine pre-estimate of loss.

1. British Parking Association Code of Practice: Grace Period.
As a member of the BPA, ParkDirectUK would be subject to their Code of Practice which states in Section 13: Grace Period: 13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

The time in car park is noted to less than 1 minute and I feel that this constitutes a reasonable grace period to allow an informed decision and, following the decision to leave the car park, to leave without charge. As a result, the 3 above conditions have not been met by ParkDirectUK. Based on this, this appeal should be upheld. If this is felt not to be the case, I put it to ParkDirectUK to provide strict proof to the contrary and their reasons for going against their industry regulator’s best practice.

It is not as of this site is marked as a no-stopping zone either so this operator cannot suggest that the driver should not have stopped at all. I would draw the POPLA assessor's notice to the fact that these are marked with white paint as PARKING BAYS. The car is shown in this bay for mere seconds and then when the sign was noticed, the car left without entering into a contract and certainly without contravening any no-stopping markings. If Park Direct wanted to show that this was a no-stopping zone they could mark it with double red lines (red route) or with yellow hatchings. It is obvious this is just as much of a cash-cow as when ParkDirect used to rejoice in the infamy of immediate clamping within 30 seconds, as here:


It is clear nothing has changed except the fact clamping is illegal so ParkDirect have had to re-think their dubious modus operandi. Immediate ticketing by a person hiding with a mobile phone to take photos of a car in a marked parking bay is not something covered by the BPA CoP, nor was a contract formed so it is not a situation in any way comparable with ParkingEye v Beavis.

2. Inadequate Signage and Contract not agreed by driver
The signage at the entrance of the site does not communicate full contractual terms and conditions. Once the driver was on site only then there was additional signage which laid out ParkDirects Terms and Conditions. The wording on those signs is very small and is not legible in a moving vehicle. The vehicle was present in the car park for less than 30 seconds, stopping in those brief seconds to read a sign that appeared to be making a contractual offer, having become aware that this was a binding offer the driver made the decision to reject the offer and left the car park, thus no performance of the contract was carried out, the sign can only be read from the first place the driver can stop; the supreme court Beavis Vs Parking Eye states very clearly in its judgement that the contract is performed by performance in parking and leaving the vehicle parked .

The vehicle was never parked, the offer was read and rejected and the driver left the car park within 30 seconds of entering deciding to reject the offer. The contract is not an adhesion contract, it is one served by performance and thus rejection is always an option, the offer was rejected and declined, no parking took place and therefore no contract exists.


3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

These are the omissions on the NTK taken from POFA 2012:
''9(2) the notice must—
(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(d) specify the total amount of those parking charges that are unpaid, as at a time which is—
(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

The NTK specifically fails on all the above counts.

The NTK does not meet the above requirements because this calls for the amount unpaid by the driver as at the day before the NTK was posted. There were no parking charges that the driver could have paid (and which could therefore be argued to be 'unpaid by the driver') because there was no mechanism to pay anything, it's not a P&D car park. The £100 was not invoiced until after the date specified in the Act.

The registered keeper is submitting this appeal and ParkDirectUK do not have the identity of the driver, who is not the registered keeper.

As ParkDirectUK has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

4. No contract with the Landowner
ParkDirectUK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
ParkDirectUK has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
ParkDirectUK must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant ParkDirectUK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between ParkDirectUK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

5. The charge is a penalty and not a genuine pre-estimate of loss.
In its parking charge notice, ParkDirectUK has failed to produce sufficient evidence to justify the £100 loss the landowner might have incurred for the period of less than 1 minute on its property. For this charge to be justified, a full breakdown of the costs ParkDirectUK has suffered as a result of the vehicle being on that land, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any vehicle being on that land.

With all this in mind, I request that my appeal is upheld and for POPLA to inform British Parking Association Code of Practice to cancel the PCN.

Yours faithfully,

OK I've had a response back and I have 7 days to provide a rebuttal. I still have not recived the evidence pack. The wording of the response is below:

Please advise next steps....Many thanks in advance again.....


Please find attached all supporting evidence to this appeal response, which clearly indicate that the motorist was in breach of the parking restrictions.

The vehicle was in a controlled parking area within a private land where we have been authorised (contract and site map attached) to patrol and enforce parking terms, conditions and restrictions. The photographic evidence taken at the time of the breach proves that the motorist’s vehicle was stopping/ waiting and dropping off in breach of the clear terms and conditions displayed on the warning signs. Therefore the vehicle was not authorised to stop/ wait or drop off there and a PCN is to be issued.

In response to the motorist’s point regarding the grace period, we would like to highlight that according to the BPA code of practice paragraph 13.2 the grace period is in place to allow driver to read the signs and leave the site. However, once the motorist decided to use the site, as seen in the photographic evidence by picking up passengers, the motorist was no longer within the grace period and therefore was acting in breach of the terms and conditions on display. We must bring to your attention that we have reviewed our photographic evidence and confirm that the vehicle was found to stop at the location, for other purposes than to read the signage, meaning that the motorist breached the terms and conditions as on the warning signs. The photographic evidence thus does in fact prove the contravention occurred.

Our parking attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the site and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. This was done on the date in question, but once the motorist did not use the grace period to read and acknowledge the warning signs, but instead used the site to pick up passengers, the grace period became invalid. This is because at that point, the motorist used the site in breach of the terms of parking. Our photographic evidence shows the vehicle being on the site, and at all times within close proximity to warning signs. There are also multiple signs at the entrance, contrary to what the motorist has alleged in their appeal.

Moreover, we would like to highlight that we are a completely different company and have no thing to do with the company mentioned in the motorist appeal. This can be verified by our legal documents if necessary.

The motorist was not adhering to the terms and condition on display as he passed all the since including the entrance sign and decided to use the site by dropping of passengers in breach of the clearly displayed terms and conditions.

We would like to address the motorist’s point that no such contract was made. There are numerous ways in which acceptance of a contract can be constituted, one of which is ‘acceptance via conduct’ (or actions). An example of this can be seen in the cases Arthur v Anker [1996], Thornton v Shoe Lane Parking [1971] and Vine v Waltham Forest London [2000]. The facts of these cases should help you understand the fundamentals of acceptance of a binding contract in a car park environment. The acceptance of the contract is legally binding once you enter the private property and acknowledge the various signs and notices we have on display. Our ticket attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the bay and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. In other words, the acceptance of the contract occurred after the driver pulled into the bay and decided to stay there after being given enough time to observe and read the signage on display at the site. Moreover, there was a lively debate before the judge (in the appeal court in ParkingEye limited v. Barry Beavis) about whether ParkingEye contracted with Mr Beavis as a principal or as agent for the Pension Fund. The judge held that it contracted as principal and there is no appeal against that decision.

The Supreme Court in the same case has addressed the consideration required to form such contract. The court held that “It may be suggested that Mr Beavis thereby promised nothing which can in law constitute valuable consideration. He was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site - the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract. Even if no Parking Charge had been stipulated, enforcement would still have been possible in law, even if a claim for damages or for an injunction might not in practice have been likely. With the stipulated Parking Charge, the nature of the intended contract is even clearer, although the question arises whether the Parking Charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration.”
In this regard, our terms and conditions of parking were clearly incorporated to motorists in that particular site (please refer to the site images attached where signs circulated red for your perusal). We have specific clear, conspicuous and legible signage at that location, which inform/warn drivers of our terms and conditions of parking. The warning signage is larger than the British Parking Association’s (BPA) Code’s minimum requirement of at least 450mm x 450mm in size. From the position of the motorist’s vehicle, the warnings signs were clear and visible. The signs would have been noticeable upon entering and as there are numerous signs on that particular site they would have been extremely difficult to miss or not take notice of. The signage clearly states that a vehicle will receive a PCN if any one stop/wait/park there vehicle in breach of the terms and conditions of parking in that location. Should the drivers have any uncertainty they can always call us on our customer service number displayed on the site for us to direct them (please see copy of the warning signage attached).
However, we would like to point out that, the notice that was given to the motorist is fully compliant with both the BPA code of practice and the requirements of the Protection of Freedoms Act 2012. Under the BPA code of practice, a Notice to Keeper can be given either as the first step in recovering a parking charge, or as the second step after giving a Notice to Driver. In this case the Notice to Keeper was given as the first step according to paragraphs 20.9 and 20.10 of the BPA code of practice.

• 20.9 Or, if you were unable to issue a parking charge notice while the driver was present, perhaps because you use ANPR or camera equipment to monitor the car park, you may want to issue a parking charge notice by post

• 20.10 In either case, you will need to try to identify who was driving the vehicle and make contact with them. You do this by first seeking the keeper details from the DVLA. Having received the keeper details from the DVLA you will need to issue a ‘Notice to Keeper’

Furthermore, Section 9(2)(e) of the Protection of the Freedoms Act 2012, which POPLA relied on in its decision, states that:

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper:
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.

Accordingly, the Notice to Keeper that was given to the motorist as the first step and tried to identify the driver at the time of the contravention by inviting the keeper to provide us with the full name and serviceable address of the driver or make a payment. The PCN clearly states in several sections that:

• “The driver is required to pay this parking charge in full using one of the payment methods described below. If within 28 days from the day after in which this notice is served, the parking charge is not paid in full and we have not been made aware of the name and a service address for the driver we will take further action to recover the amount owed”

• “If, after 28 days beginning with the day after that this notice is served, the Parking Charge Notice has not been paid in full, and we have not been made aware of the name and a current serviceable address for the driver, we do have the right under schedule 4 of the Protection Of Freedoms Act 2012, to recover the charges from the registered keeper of the vehicle at the time it was parked so much of that amount that remains unpaid”

• “You may now pay this parking charge notice or if you was not the driver of this vehicle at the contravention time, you may supply us with a name and current address for the driver and pass this notice on to them”

The motorist in his first representation has refused to disclose the name or the address of the driver and declined the invitation to do so (please see attached a copy of the motorist first appeal), therefore, the keeper was held liable for the PCN under the Protection Of Freedoms Act 2012 and the BPA code of practice.