P4Parking Resident Permit Fell Off Dash

Paid4Parking

Hi all

I unfortunately discovered the Parking Tickets, Fines & Parking forum after I hastily submitted my initial appeal to P4Parking.

This means that whilst I had indicated that I was the keeper of the vehicle, my statement possibly implied that I was the driver.

I then got married and went on my honeymoon, meaning I was rushed to pull evidence together for the POPLA appeal once P4Parking predictably rejected my original appeal.

Initial appeal

I live in [...] and pay monthly for space 11B. My partner's car is parked elsewhere and I parked my car in the space, however I forgot to display the permit in the window as it fell off my dash. I have attached evidence that the permit is in my possession and that I was parked in the correct space.


POPLA Appeal

Dear POPLA,

PCN Number: #
POPLA Verification Code: #

I write to you as the registered keeper of the vehicle Y1 LAG, I wish to appeal the £100 Parking Charge Notice (PCN) issued by P4Parking Ltd.

As the keeper of the car, and a paying resident subscribed to the parking scheme as offered by Circle Housing Group, I submit the reasons below to show that I am not liable for the parking charge:

1. 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

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

4. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of!ParkingEye Ltd v Beavis

5. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

6. I am a tenant of Circle Housing Group and have been allocated bay number 11, in which I was parked


1. 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:

link

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:

link

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and!'agreement on the charge'!existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.!

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.!!

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.!!

The letters seem to be no larger than .40 font size going by this guide:

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As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

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''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and!want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

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''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:

link

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. 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

3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.!!

In this case, no other party apart from an evidenced driver can be told to pay. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

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

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

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

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:!
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

4. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of!ParkingEye Ltd v Beavis

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.!

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.!

At the Supreme Court in Beavis, it was held at!14:!''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

This is NOT a 'more complex' case by any stretch of the imagination. At!32!in the Beavis decision, it was held that a trader, in this case a parking company:!''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

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-!Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.

5. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate!interest!in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any!legitimate interest![...] in the enforcement of the primary obligation'.!

There can be!no!legitimate!interest!in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any!legitimate!interest' to issue a parking penalty for permitted unloading/loading by a driver who has!legitimate!business and rights to do so.!

These rights supersede any signs, which are of!no!consequence except to deter rogue unwanted drivers from leaving their vehicles when they have!no!business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.!

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:!

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**)...

Paid4Parking

...District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

6. I am a tenant of Circle Housing Group and have been allocated bay number 11, in which I was parked

The landlord has confirmed that I have been allocated a bay which I pay for month on month, and that I was parked in the correct bay.

link

P4Parking's Response

Dear Sirs

Regarding below appeal, Notification of POPLA Appeal - #, please find enclosed next documents:

1. Photographic evidences
2. Appeal denied letter from P4Parking
3. Original message from Appellant

Parking charge notice details: VRN Y1LAG
PCN #
Issue Date 09/05/2017
Time 18:00
Location P055 – CAPITAL EAST PHASE 2 Contravention – No Parking Permit on Visible Display Charge £60.00 – discounted rate if paid in 14 days
£100.00 – full amount if paid on 28 days

The ticket had been issued correctly because there was No Parking Permit on Visible Display.

The appellant, Paid4Parking was the driver at the alleged time of contravention as within his appeal to P4Parking dated 11/05/2017 he stated “I parked my car in the space, however I forgot to display the permit in the window as it fell off my dash. I have attached evidence that the permit is in my possession and that I was parked in the correct space.”
He stated to POPLA “I am a tenant of Circle Housing Group and have been allocated bay number 11, in which I was parked”

Therefore, Paid4Parking, as the driver of the vehicle, is liable to pay the parking charge notice.

We can confirm the organisation that the land pertains to is First Port Bespoke Property Services, according to the contract attached (which is indefinite and no specific end date is required according to the law), and not Circle Housing Group (Housing Association). The appellant cannot prove ownership of bay no. 11B, as he has only been allocated with this space following his rental agreement (which he has not attached). He can use this space only if displaying the valid black resident parking permit marked P4PARKING that he has been provided with and which he forgot to put on display. As you could see from their email dated 25/05/2017 (after both parking charge notices have been issued), the representative of Circle Housing Group (the Housing Association) only confirmed the driver is their tenant and that he’s been allocated with Bay No. 11, however they do not have the power to instruct us to cancel the parking charge notices as they do not own the land, moreover, they’ve advised Paid4Parking that he can find the parking conditions at the concierge (landowner’s concierge, First Port) or from the parking company. Therefore, as the Housing Association could not help him with the tickets, he then appealed to POPLA.

A valid parking permit displayed proves the fact that the driver is authorised to park on the premises. If the permit is not on display, then the operator would not know if the vehicle has got authorisation to park on the location or not, therefore the warden will be entitled to issue a parking charge notice.

The driver, Paid4Parking confirmed he was in the possession of a BLACK RESIDENT PARKING PERMIT FOR BAY 11B valid for the Basement Car Park at Capital East Phase 2, permit on which it is clearly stated P4PARKING, however, HE FORGOT TO DISPLAY THE PERMIT IN THE WINDOW. As a resident he should be fully aware of the parking regulations of the development valid permits are to be displayed in the vehicle when parked on the premises. His vehicle was spotted being parked on the premises without a valid parking permit continuously on 08/05/2017, 09/05/2017 and 10/05/2017, please find pictorial evidence attached.

Please find attached pictorial evidence of the location, the signage, which is clearly displayed at the entrance to and throughout the car park, states that this is private land, the car park is managed by P4Parking, and parking tariffs apply or a Parking Charge will be incurred, along with other terms and conditions of the car park by which those who park in the car park agree to be bound. As you can see, P4Parking does ensure that the signage is of adequate size, visible at a distance and viewable.

As a resident on the premises, the appellant had plenty of time to familiarize himself with the Parking Terms and Conditions clearly displayed throughout the development.
We are not required to place a sign in front of every parking space, if the motorist is in visible reach then the signs are binding.

We can confirm that P4Parking Signs meet all the conditions set by BPA code of Practice as the size of a sign on this location is 450 mm x 600 mm, are conspicuous and legible, and written in intelligible language, so they are easy to see, read and understand. According to the code, the sign must specify the sum payable for unauthorised parking, adequately bring the charges to the attention of drivers, which you can clearly see from a closer view of the signs and the copy of the parking charge notice.

The Appellant left their vehicle unattended without a valid permit and as a result, we find that the Appellant breached the terms and conditions of parking. The onus is on the Appellant to ensure compliance with the terms and conditions of parking as set out on signage at each particular site and on this occasion they did not do so.
If the driver is aware they cannot meet the terms and conditions of parking it is their responsibility to find alternative parking.

It is clearly written on the signs placed at the location “THIS LAND IS PRIVATE PROPERTY. By parking here you are entering into a BINDING CONTRACTUAL AGREEMENT. ALL VEHICLES PARKED WITHIN THESE PRIVATE GROUNDS, AND NOT DISPLAYING AN AUTHORISED PARKING PERMIT OR PARKED OUTSIDE OF THIS DEVELOPMENTS PARKING REGULATIONS, WILL BE CHARGED VIA THE ISSUANCE OF A PARKING CHARGE NOTICE... (Contact P4Parking on 0845 556 0789 for clarification of Estate Parking Regulations if unsure)
This Parking Charge will be issued in the form of a Parking Charge Notice totalling £100 which will be reduced if paid within 14 days. Please refer to the notice placed on your vehicle for details of reduced fee(s)...
If you park on this land contravening the above parking restrictions, you are agreeing to accept and meet the parking charges as posted on your vehicle.
If the parking fees and charges remain unpaid, the vehicle keeper details may be requested from DVLA and may incur additional costs as a result of further recovery and enforcement actions taken. Enforcement may take place at any time (24 hour controlled development)
This development is professionally managed by P4 Parking UK LTD.”

We find that, by failing to display a valid permit, the Appellant became liable for a parking charge notice, in accordance with the terms of parking displayed.
The parking conditions of the development is that permits are to be displayed at all times when the vehicle is on the development. It is the responsibility of the driver to ensure that the necessary identifications that authorise them to park are displayed before leaving their vehicle.
When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking.

It is the driver responsibility to make sure a valid permit is PROMINENTLY, SECURELY and VISIBLY displayed on the front windscreen/dashboard of the vehicle whilst parked within the managed development in order to be validated.
We have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for not complying with the advertised terms and conditions. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely, and on which the motorist has agreed to be bound by which will become payable if the terms and conditions of parking are not met.

We would contend that it is too late now to indicate that they are unhappy with the parking charge – this should have been done at the time of accepting the ‘parking contract’ - if the motorist was unhappy with the contract terms, they should not have remained at the location. The amount of our charge has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on parking and the driver cannot claim that there are any Trading Standards or Consumer Regulation breaches as they have accepted the conditions at the point of opting to park at the location. On accepting the parking conditions we argue that the complainant cannot now seek to effectively renegotiate them or to dismiss them in their entirety. The charge of £100 reduced to £60 is as advertised and within BPA guidelines.

The “parking contract” was expressly agreed by the motorist at the point of opting to park at the location.
Therefore, the parking charge notice was issued correctly by the operative as there was no evidence on the vehicle windscreen or dashboard showing that the vehicle had authorization to park on the location.
Paragraph 19.5 of BPA Code of Practice states “If the charge is more than £100, operators must be able to justify the amount in advance”.

As the parking charge notice is £100 reduced to £60 if paid within 14 days, it is not required for us to justify it.
The highest Court in this country decided that ParkingEye’s parking charge of £85 is enforceable on the basis that it protected a legitimate interest (to deter parking overstays) and was not extravagant, exorbitant nor unconscionable. The parking charge is not an unenforceable penalty and does not breach the Unfair Terms in Consumer Contracts Regulations 1999.

The BPA welcomes the decision which provides clarity on the use of contract law for parking on private land. The ruling supported the view of the Court of Appeal judges in April this year and that of Judge Moloney that the charge should be an effective deterrent.

The judgment confirms that the current charging level is lawful and reasonable and motorists parking on private land must comply with the advertised terms and conditions. The Supreme Court effectively concludes that the BPA’s Code of Practice for parking on private land is a good and fair model.
In calculating our loss, we have looked at the costs we incur because motorists do breach the Terms & Conditions at the locations we manage. If all motorists didn't park where they shouldn't, paid where they should, didn't overstay and followed all the specified conditions at the sites we look after for our landowner clients, these costs would not exist.
The £60 sum is within (well within) the recommendations set out within Clause 19 of the BPA Code of Practice.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner and/or his agent of the site.

The charge in question is not disproportionately high and insofar as it exceeds compensation its amount is justifiable, and not in bad faith or detrimental to the consumer.
Operators are required to provide a reduced rate for the PCN within an initial period. From the British Parking Association Code of Practice Section 19.7: “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.”

The cost of PCNs was considered in Beavis v ParkingEye by 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.” Having considered the decision of the Supreme Court decision, we 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 is £100, this is in the region of the £85 charge decided on by the Supreme Court. By using the car park without clearly displaying a valid permit in the windscreen, the appellant has parked in breach of the terms and conditions.
I hope this information is enough to prove that vehicle was left in contravention of the site regulations.
Kind regards, P4Parking


I now need to comment on their evidence before it is submitted to POPLA.

I will be including my tenancy agreement in my evidence, as P4Parking highlighted I had not submitted it.

Before I go any further, I would appreciate your recommendations.

Best,
Paid4Parking

Coupon-mad

I would do a quick Land Registry search for £3 and find out if First Port Bespoke Property Services actually own the land.

I was reading this (your appeal, and the fact you said who parked and admitted to fault - oops! two mistakes at first appeal) and think you will struggle to win this POPLA appeal but if you can show that the contract is not with the landowner then you may be able to sway it.

Even if you lose, DO NOT PAY THIS! It would be defendable if P4Parking try a small claim and they are NOT known for it. A lost POPLA appeal isn't the end of the World.

Let us know the LR results. You can do this online and for £3 it might help you when you get more PCNs (as you will).

The_Deep

Wow, what a sledgehammer. Have you contacted your landlord? He/she might be prepared to shout at the MA, I would not tolerate a PPC treating any of my tenants thusly.

If this is a HA registered as a charity complain vociferously to HM Charirt Commissioners, HAs should not be getting into bed with scammers.

Ian011

Paid4Parking wrote: »

(Contact P4Parking on 0845 556 0789 for clarification of Estate Parking Regulations if unsure)

Failure to state call costs immediately adjacent to the premium rate 0845 number is a breach of the Ofcom regulations in force since 1 July 2015 (the 'Conditions Binding Non-Providers').

Offering a premium rate 0845 number for this enquiry is a breach of the BIS regulations in force since 13 June 2014 (Regulation 41 of the Consumer Contracts Regulations 2013).

Paid4Parking

Thank you all for your replies.

The freehold does not belong to First Port Property services, but instead belongs to a different company.

Title Number: EGL374165
Address of Property: Land and buildings lying to the south of Victoria Dock Road and Connaught Road, Canning Town, London
Registered Owner(s): GLA LAND AND PROPERTY LIMITED (Co. Regn. No. 07911046) of Estates, Housing & Land Directorate, Greater London Authority, 3rd Floor, City Hall, The Queen's Walk, London SE1 2AA.

Having looked into the HA, they are a non-profit, but not a charity.

Coupon-mad

OK, that goes into your POPLA appeal with evidence of where you got that from (a screenshot, not a link) and state that the operator has not shown landowner authority from GLA LAND AND PROPERTY LIMITED (Co. Regn. No. 07911046).

Paid4Parking

I'm at the comments stage of the appeal, and so I don't have the ability to upload a screenshot it seems?

I have written

Firstly, item 7.1 in the BPA Code of Practice states "You must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question", however the contract given as evidence is between P4 Parking and First Port Property Services, with no written authorisation by GLA LAND AND PROPERTY LIMITED (Co. Regn. No. 07911046) who own the land on which the parking bay is located, as evidenced in the Land Registry Title number EGL374165.

Therefore, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge.

Secondly, Failure to state call costs immediately adjacent to the premium rate 0845 number is a breach of the Ofcom regulations in force since 1 July 2015 (the 'Conditions Binding Non-Providers').

Offering a premium rate 0845 number for this enquiry is a breach of the BIS regulations in force since 13 June 2014 (Regulation 41 of the Consumer Contracts Regulations 2013).

Coupon-mad

Remove the words about 'no loss' as that throws the other side a lifeline POPLA will swallow.

Remove this, you can't add new points, only build on things in your POPLA appeal already:

Secondly, Failure to state call costs immediately adjacent to the premium rate 0845 number is a breach of the Ofcom regulations in force since 1 July 2015 (the 'Conditions Binding Non-Providers').

Offering a premium rate 0845 number for this enquiry is a breach of the BIS regulations in force since 13 June 2014 (Regulation 41 of the Consumer Contracts Regulations 2013).

Paid4Parking

Thank you dearly, amended to:

Item 7.1 in the BPA Code of Practice states "You must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question", however the contract given as evidence is between P4 Parking and First Port Property Services, with no written authorisation by GLA LAND AND PROPERTY LIMITED (Co. Regn. No. 07911046) who own the land on which the parking bay is located, as evidenced in the Land Registry Title number EGL374165.

Therefore, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

Paid4Parking

Predictably declined

Decision
Unsuccessful

Assessor Name
Emily Chriscoli

Assessor summary of operator case
The operator’s case is that the appellant’s vehicle was parked on site without clearly displaying a valid permit.

Assessor summary of your case
The appellant has raised several issues as grounds for appeal. These are as follows: • The appellant feels that the signage displayed on site is insufficient • The appellant has questioned the operator’s authority in issuing and pursuing Parking Charge Notices (PCNs) • The appellant believes that the operator has not identified who was driving the vehicle on the date in question • The appellant does not feel that the amount of the PCN is a Genuine Pre-estimate of Loss • The appellant believes that the issuing of this PCN is incompatible with the rights under his lease • The appellant was parked in her own designated parking space on the date in question

Assessor supporting rational for decision
Before I begin my assessment of this appeal, I feel it is appropriate to comment that although I am aware that the appellant has received multiple PCNs, POPLA works on a case by case basis. As such, any outside factors, such as previous similar contraventions or other on-going appeals, have no bearing on our decision making. My report will focus solely on the events that occurred on 8 May 2017, under verification code 5161437016. Additionally, I note the appellant has maintained throughout the appeal process that the operator has failed to establish who the driver of the vehicle was on the date in question. While I acknowledge this point, I also note that the appellant has stated “I parked my car in the space, however I forgot to display the permit”. As a result, I am satisfied that the appellant has identified herself as the driver of the vehicle on the date in question. When it comes to parking on private land, a motorist accepts the terms and conditions of the site by parking their vehicle. The terms and conditions are stipulated on the signs displayed within the car park. The operator has provided both PDF document versions and photographic evidence of the signage displayed on site. The signs state “This land is private property. By parking here, you are entering into a binding contractual agreement. All vehicles parked within these private grounds and not displaying an authorised parking permit or parked outside of this developments parking regulations will be charged via the issuance of a Parking Charge Notice. Parked contravening the following: Parked displaying a disability badge without a valid estate permit. The parking charge will be issued in the form of a Parking Charge Notice totalling £100”. The operator has provided photographic evidence of the appellant’s vehicle from the date of the contravention, where it is clear that no permit has been displayed. Furthermore, in the appellant’s original appeal to the operator, she states that she forgot to display her permit on the date in question. In her grounds for appeal to POPLA, the appellant has advised that she believes the issuing of this PCN is “incompatible” with the rights of her lease. As a result, I would expect the appellant to provide POPLA with a copy of the lease document in order to substantiate her claims. On this occasion, the appellant has failed to provide a copy of a lease document or a tenancy agreement for my perusal. As such, while I acknowledge this particular ground for appeal, I am unable to take this point into consideration during my assessment. The appellant has questioned the operator’s authority from the landowner in issuing and pursuing PCNs. Section 7.1 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you authority to carry out all aspects of car park management for the site you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” In response to the appellant’s grounds for appeal, the operator has provided POPLA with a copy of the contract it holds between itself and the landowner. I note the operator advises that the contract started on 1 April 2016 and that the end date is “open” and therefore, the terms of the contract are “reviewed” on a 12 month period. As a result, I am satisfied that the operator has demonstrated its compliance with Section 7.1 of the BPA Code of Practice and therefore has the relevant authority from the landowner to issue PCNs on this land. 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 Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “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.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, 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. The Act then moved on to define “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. In summary, 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, I still feel that this is in the region of the £85 charge decided on by the Supreme Court. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, by failing to display a valid permit, the appellant has failed to follow the terms and conditions of the signage at the site and as such, I conclude that the operator issued the PCN correctly.