Permit not Visible

Ruff-Diamond

Sorry if layout is a bit wobbly; it was exported to Word from Acrobat:

P4Parking’s operative has produced photographic evidence of the vehicle parked in close proximity to a sign and with no parking permit on display. The appellant stated that the driver has not been advised to read the P4Parking’s signs and that he couldn’t also see them. He stated as well that the driver had the temporary parking permit but had fallen between the dashboard and windscreen and was not visible for the operative. As the driver was fully cognizant of placing the permit in the vehicle, I am satisfied the driver was aware of the te rms and conditions of parking. While I do not dispute the appellant enclosed a copy of a valid permit, the driver did not display it on the date in question.

Within his submissions, the appellant stated “The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended. The NTK sent to myself as Registered Keeper was issued seventy-five days after the alleged event and sixty days after the last day on which it could correctly have been issued. Therefore, P4Parking and TNC Parking Services have failed to act in time for keeper liability to apply.” A notice to driver was issued on 21-08-2017 16:26 and affixed to the vehicle, and an appeal was sent on the 25th day by the keeper, ***********, on 15-09-2017 @ 14:50. It is not mandatory that an operator uses POFA when issuing a notice to keeper as there is no legal requirement to do so. It is at the discretion of the individual parking c ompany as to whether they choose to use POFA (2012) or not, according to BPA instructions. The Notice to Keeper was sent to the appellant, Mr. *********** on 04/11/2017, when the keeper was already aware of the parking charge notice. It is the keeper’s responsibility to make sure who was the driver of the vehicle at the time of the parking charge notice being issued. The appellant mentioned paragraph 9(5) which does not relate to a Notice to Keeper which precedes a Notice to Driver. Section 9 refers to a Notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b). Our Notice to Keeper has been given for the purposes of paragraph 6(1)(a) – when a notice to driver has been given in accordance with paragraph 7, the notice to driver was affixed to the vehicle on 21-08-2017 16:26, and the keeper was made aware of it.

I must point out that the driver was not parked correctly as the parking permit which allows the vehicle to park within the visitors’ space was not displayed on dashboard or windscreen for operative to validate it. 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.


In the indefinite term contract clearly states that P4Parking is contracted to issue a Parking Charge Notice


to any vehicle parked at the location in contravention. Therefore, 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.

The Highest Court in Great Britain decided that Parking Eye’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. Furthermore, the cost of PCN was considered in Beavis v Parking Eye by the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both, Parking Eye 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 Parking Eye 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, 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 driver 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 displaying the permit, the driver parked in breach of the terms and conditions. This 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, have 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.

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, written in intelligible language, so they are easy to see, read and understand. I have provided photographic evidence of the terms and conditions which state “By parking here you are entering into a binding contractual agreement. Please note this is a visitors parking area only. All vehicles will be charged via the issuance of a parking charge notice if found parked without displaying a valid visitors permit.”. As the vehicle was found without displaying a valid visitors permit that allowed it to be parked there, we can only conclude then that the driver breached the terms and conditions of the location. I have provided photographs of the signs at the site and images that show the location of the signs at the car park. Fundamentally, it is the motorist’s responsibility to check for any terms and conditions, and either adhere to them or choose to leave. By parking the vehicle at the site, the driver of the vehicle is indicating an acceptance of the terms and conditions.

Within the appellant’s response, he states “As advised, the driver was issued a permit that did not advise them to read the signs. As the terms of parking were agreed in the concierge’s hut, the presence of signs on the site that may have been seen after the permit was issued is irrelevant”, however, is not the parking permit which need to advise motorists to read the signs, are certainly the signs which must inform the motorists that they need to display a parking permit for them to have consent to park at the location, hence the driver visited the concierge to obtain a parking permit, as he/she was fully aware of the terms and conditions from the car park. But the motorist failed to comply with the parking rules and regulations by not displaying the parking permit on the vehicle. 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.

The appellant stated that the parking permit had fallen between the dashboard and windscreen and was not visible for the operative. I acknowledge the appellant’s comments, however when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. I note the appellant states the permit had fallen between the dashboard and the windscreen, however I do not class a permit as displayed when is stuck between the dashboard and windscreen. POPLA is an evidence based service and I can only base my decision on the evidence provided. In this case I have provided images of the appellant’s vehicle; however the appellant has not provided evidence of their permit displayed in the vehicle. From the photographic evidence of the appellant’s vehicle I cannot see a permit displayed. In order for the warden to assess that the vehicle was authorised to park at the site, a permit would need to be clearly visible in the vehicle. As it was not,
the warden has issued the PCN, as they would have been unaware whether the vehicle was authorised to park at the site . Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant did not have a permit on visible display, and therefore

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[/FONT] did not comply with the terms and conditions of the car park.
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Please find attached pictorial evidence of the location, the signage, which is clearly displayed throughout the car park, states that 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.

The driver left their vehicle unattended without a valid permit and as a result, we find that the driver 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.

We find that, by failing to display a valid permit, the driver 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.

I 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.

I 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.

I hope this information is enough to prove that vehicle was left in contravention of the site regulations.

Ruff-Diamond

Comments on operator's response below. Note this cross-references previous post

Operator’s Statement
Paragraph 1:
It is denied that the vehicle was parked in ‘close proximity’ to a sign. As per my evidence and as per operator’s photograph 1381035, the sign is well back from the edge of the road, behind a grass verge, blue on a green background and obscured by a tree and foliage
It should not be inferred by the presence of this sign that the driver would have been aware of operator’s terms and conditions of parking. Besides, as per my evidence, it is denied that such conditions applied because the contract was made with the owner’s representative in the concierge’s hut, when the driver would not have been aware of these conditions. It is a basic tenet of Contract Law that terms may not be universally imposed or varied by one party, or a third party, without the express permission of the other party, after the contract is made.

Paragraph 5:
The Operator is making much of the decision in the case of Beavis v. Parking Eye, however this case is quite different. In the Beavis case, the defendant had overstayed in a car park where the owner had a legitimate commercial interest in dissuading overstayers. This situation is not comparable, in that:
a) The vehicle had not overstayed the period granted by the property owner. The property owner had granted permission for the vehicle to be parked in this designated visitors’ space between 16:00 and 21:00 on 21 August 2017. The penalty charge was raised at 16:25, some three hours and thirty-five minutes before the end of the agreed parking period. It cannot be claimed that the vehicle being parked at 16:25 was a detriment to the owner, as he had already expressly granted permission for it to be there
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b) The landowner did not have an interest in charging the driver. Visitor parking is free in this car park, which is not attached to a commercial property where the owner may have benefited from another vehicle using the space. The only potential ‘detriment’ would have been to deny another visitor or paying resident a parking space, but the vehicle was correctly parked in a visitor’s bay, within the period granted by the owner and there were many unoccupied bays available (both visitors’ and tenants’), this being mid-afternoon on a weekday. Even had the vehicle been incorrectly parked, thus denying a space to a visitor or resident, this would not have been detrimental to the landlord.
c) In the case of Beavis, it was found that the landlord had an interest in charging an overstaying motorist and “the interest of the landowners was the provision and efficient management of customer parking for the retail outlets”. As stated above, there were no retail outlets to benefit and this charge was made on a vehicle that the landlord had expressly permitted to be in that location at that time. “Efficient management of customer parking” would not have improved this situation, the car being correctly parked.
It is asserted that the charge “and the calculations which have been made in setting it, have been approved and agreed by the landowner and/or his agent of the site”, however no evidence is provided that the landowner has agreed the charge. The level of charges and how they are calculated is not mentioned in the copy of the Parking Scheme Agreement provided. See also my comments below on the Parking Scheme Agreement.

Paragraph 7
I don’t fully understand this badly worded paragraph, but re-state that the driver visited the concierge on arrival as pre-arranged (by telephone) and was granted a parking permit by the concierge, who is the owner’s representative. The driver was not advised by the concierge to observe any conditions, other than those mentioned on the permit and was not advised of any charges.
The driver was at no time instructed to display the permit “prominently, securely and visibly” on the front windscreen/dashboard, only to place it on the dashboard, which they did.

Paragraph 11
Although it is denied that the operator’s terms applied, the driver did place the permit on display before leaving the vehicle, so did comply. It was an unfortunate accident that occurred after the driver left the vehicle that resulted in the permit not being visible.

Paragraph 14
Paragraph 14 is denied entirely. Express permission was granted to the driver by issuance of the permit within the concierge’s hut and the contract was made there between the driver and the owner’s representative. The contract having been made between the landlord and the driver; the operator was a third party and cannot therefore impose conditions.


Parking Scheme Agreement
Operator has provided a copy of their agreement with the owner.
In paragraph 4 it is stated “The Company agrees to issue a Parking Charge notice to any vehicle parked on the Location in contravention of permissions given by the client”. However, the Client (the owner of the site) had given explicit permission to the driver to park on the site in a designated visitors’ bay between 16:00 and 21:00 on 21 August 2017, the period during which the charge notice was affixed to the car
A Site Conditions Control Document is appended. In the header row of the “site Conditions List”, column 3 states “Client please initial all required conditions”. Of the eight conditions listed, not one shows the Client’s initials in the box. Condition 1 states “The permit must be displayed at all times in front of the vehicles (sic) windscreen or dashboard only no other location will be acceptable”. Apart from the client not initialling this condition, had the permit been displayed “in front of the windscreen”, it would have blown away.
The copy agreement is not signed by the Client and is not, therefore, evidence of a genuine agreement between the operator and the client.


Photographic Evidence
Photograph 1381035 claims to show the vehicle in ‘close proximity’ of the sign. In fact, it shows that the sign is well back from the edge of the road, behind a grass verge, is blue and affixed to a green fence, behind a tree and among foliage. Blue signs do not contrast with green backgrounds and are not easy to see. Had there not been a yellow box around the sign in the photograph, anyone with normal eyesight would probably take some time to find it
Photograph titled “Parking Sign Closer View” is not of the same sign. This photograph does, however, reinforce my assertion that the charge was displayed in the smallest font on the sign and cannot be said to follow Lord Denning’s “Red Hand Rule”
Photograph “******* 4” shows the concierge’s hut, where the permit was issued, in the background. The sign highlighted is on the inside of the development, well past the hut and would not have been visible to the driver until after the contract was concluded within the hut.


The operator has not been able to provide evidence of there being a sign at the entrance to the site or located where the driver would have passed it before entering the concierge’s hut. No evidence is provided that the contract was not made in the hut, with the owner, just further assertions that the signage provided the terms of the contract. As the signs were not referred to verbally when the contract was made, and no mention of the signs, further conditions or penalties appear on the permit, they can not be considered to form part of the contract. As previously stated, it is a basic tenet of Contract Law that terms may not be universally altered or imposed by one side, or a third-party, after the contract is made.

Finally, I would like also to advise you that, despite this ongoing appeal, I am being pursued by P4Parking’s collecting agent by telephone and SMS message, sent to my employer’s telephone. Surely it can’t be right for such activity to take place whilst the charge is under appeal? Further, I suspect that this company may not have followed correct procedure under POFA in raising the notice and am awaiting evidence of this from the DVLA.

RICHARD_ANDERSON

look on tnc website. they say the following..
TNC Group Services views all complaints very seriously and constantly strives to improve all aspects of its working practices through close partnership with the Credit Services Association, Financial Conduct Authority, Financial Ombudsman Service and the British Parking Association

Have found out today. that they are not members of any of these. also I am reporting them to police 101. for harassment.

RICHARD_ANDERSON

look on tnc website. they say the following..
TNC Group Services views all complaints very seriously and constantly strives to improve all aspects of its working practices through close partnership with the Credit Services Association, Financial Conduct Authority, Financial Ombudsman Service and the British Parking Association

Have found out today. that they are not members of any of these. also I am reporting them to police 101. for harassment.

Quick Reply

pappa_golf

TNC are members of the BPA , please explain why you think differently ?

they use several names in the overall group so searching for TNC Group Services may yeald no results

2nd week in jan

As far as I am concerned TNC remain members of both the BPA and the AOS. I have been in dialogue with them this week regarding a couple of investigations.



There is no requirement for them to display the BPA logo on their website and as for the BMPA, I can!!!8217;t comment on them - my remit does not stretch that far, yet!



I hope that this is a helpful response but should you have any further questions please don!!!8217;t hesitate to make contact, although I do finish tonight for Christmas.



May I wish you and other contributors to MSE etc all the best for the festive season and I look forward to corresponding further in 2018.



Kind regards



Steve Clark

Head of Business Operations

British Parking Association

The_Deep

Time to make a robust complaint to your MP about the time that has been wasted, but first watch this.


http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

pappa_golf

I bow to your credit search assoc , they are indeed missing http://www.csa-uk.com/consumer/our-members/#search