Attempted unsuccessfully to buy a ticket, left car park, received PCN

Coupon-mad

1. Frustration of Contract
2. The Operator has not shown that the individual it is pursuing is liable for the charge
3. Grace Periods do not comply with the BPA Code of Conduct.
4. Vehicle images on the PCN do not comply with the BPA Code of Conduct
5. No evidence to show the full period of parking
6. No Evidence of Landowner compliance

What's ''landowner compliance'' and where is the usual long point about unclear signs?

Also if you are using point #2 it doesn't stand alone, it's meant to follow a point saying why the POFA wasn't complied with, either talking about the NTK wording or date sent (too late?) or that there was no 'relevant contract/relevant obligation' (see Schedule 4) in play because the driver left after being stopped for certainly less than 10 minutes (the extra minute or two being the time to drive in and out).

Therefore the 'relevant contract/obligation' pre-requisites of Schedule 4 were not established.

Nathan1958

Brilliant, thank you Coupon-m.... No clue what 'land owner compliance' is, I copied it & didn't notice it, thanks for spotting it! I'll address point 2 as you suggest and post a new draft later.

nosferatu1001

You mnean landowner authority or contratc; ie a contract from the landowner / landholder authorising them to be there

The_Deep

Does anyone know of any relevant examples of frustration of contract that I could use?

Here is one, there are plenty more on google

https://parking-prankster.blogspot.com/2016/10/link-parking-youve-been-gladstoned.html

Nathan1958

OK, I've had another go. Having now started to get my head around POFA a little (by which I mean actually reading it!) and closely reading the PCN, I think that the CEL PCN is actually POFA compliant! So I have taken out that stuff, but added in at Coupon-m's suggestion that the 'relevant contract/obligation' pre-requisites of Schedule 4 were not established'. Hopefully I've done this OK, but if not please do let me know. I left out 'the usual long point about unclear signs because I don't have any evidence that they were unclear, the driver read one at the time, but I don't have any photo's of them and they're 200 miles away! Please let me know if I should just include that section anyway.

POPLA Verification Code:
Vehicle Registration:

I received as registered keeper a parking charge notice dated xx/xx/2019 and received a rejection of my initial appeal to the operator on xx/xx/2019. The following are my grounds for why the parking charge notice was incorrectly issued and why this appeal should be allowed.

1. Frustration of Contract
2. Under the protection of Freedoms Act 2012, no relevant contract was formed
3. Grace Periods do not comply with the BPA Code of Conduct.
4. Vehicle images on the PCN do not comply with the BPA Code of Conduct
5. No evidence to show the full period of parking
6. No Evidence of landowner authority

1. Frustration of Contract.

I consider that Civil Enforcement Ltd failed to take payment and so the doctrine of Frustration of Contract applies. In the absence of sufficient coinage to pay for parking, a call was made to the claimant’s payment line. This, and two subsequent calls were unsuccessful, as the automated process simply did not work when bank details were attempted to be entered, Each call is preceded by a long automated preamble, meaning each call would be estimated to take at least 2 minutes. Because the driver was not able to make payment, the driver could not enter into a contract with the claimant, therefore any charges arising from breach of contract cannot apply.

2. Under the protection of Freedoms Act 2012, no relevant contract or obligation was formed because the driver left after being stopped for almost certainly less than 10 minutes (the 2 minutes and 42 seconds being the time to drive in, find an appropriate space and drive out again).

The Department for Transport (2012) Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges, states that:

“5.1 A registered keeper can only be found liable for unpaid parking charges when certain requirements are met. These requirements seek to balance the rights of the motorist and the landholder and are clearly set out in Schedule 4.
5.2 For Schedule 4 to apply the driver of a vehicle must first be liable for unpaid parking charges. There are broadly two situations where a driver could become liable for parking charges:
a. where a driver has entered into a contract to park on private land and failed to comply with the terms and conditions of that contract …

7. How is a parking contract formed?

7.1 Contracts for parking on private land can arise in a number of ways. However normally a car park will have signs setting out the terms and conditions upon which parking is offered. Drivers can then decide whether or not to accept those terms and conditions. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park with the landholder.”

The driver clearly did not enter into a contract and made this clear by leaving as soon as it became obvious that payment was not possible in this instance.


The DfT (2012) guidance also states that:

7.2 Parking contracts, like any contract, must be made in accordance with the general law – for example, consumer protection law would be relevant to establishing whether or not the signs at a car park were sufficient, and the terms and conditions were fair. If it can be shown that a contractual term was unfair, it follows that the term cannot be relied upon to enforce a parking charge.

The terms and conditions were manifestly unfair as they did not comply with the BPA Code of conduct for grace periods (as in point 3, below).

3. Grace Periods do not comply with the BPA Code of Conduct.
After driving into the car park, finding and reading a sign in the car park, attempting to pay via the payment machine (which only accepted coins, of which the driver did not have sufficient) and 3 unsuccessful attempts to pay by telephone, the driver drove out of the car park to find alternative parking. According to the PCN received from Civil Enforcement Limited, this whole process from being recognised by an ANPR camera on entering the car park and again on leaving, took a total of 12 minutes and 42 seconds.


The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

As the total period captured by the ANPR cameras referred to in the PCN is 12 minutes and 42 seconds, the PCN clearly does not allow for these grace periods.

BPA’s Code of Practice (13.1) states that:

“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.”

BPA’s Code of Practice (13.2) states that:
“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.”

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

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to
read the terms and conditions before they enter into the contract with you.
If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to
leave, as they will not be bound by your parking contract.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for
the motorist to park their car, observe the signs, decide whether they want
to comply with the operator’s conditions and either drive away or pay for a ticket.”

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

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

4. Vehicle Images on the PCN do not comply with BPA’s Code of Practice.

The BPA’s Code of Practice (31.1) states:
“You may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

In this case the photographs do not include a date and time stamp. It does not show the location of the car park where the claimant states the incident occurred.

5. No Evidence to show full period of parking.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no
record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, POFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”.

Most notably, paragraph 9(2)(a) requires the NTK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Civil Enforcement Limited’s NTK shows images of a vehicle entering and leaving the car park which are used to calculate its “length of stay”. It is not in the gift of Civil Enforcement Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Civil Enforcement Limited are not able to definitively state the period of
parking.

I require Civil Enforcement Ltd to provide evidence to show the vehicle in question was parked on xxx/18 (for the duration claimed) and at the location stated in the NTK.

6. 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 Code of Practice) 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 Code of Practice 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.

Nathan1958

Any comments? If none by tomorrow, I'll send this as it is.

Coupon-mad

the BPA Code of Conduct

No such thing!

Nathan1958

Cheers - that was again in the text I borrowed. A quick Google tells me it's actually the BPA Code of Practice, thanks again.

Nathan1958

I've made a significant alteration in my appeal to POPLA because, having read the most recent POPLA Annual Report 2018, it says

"In previous versions of the BPA Code of Practice, 13.2 talked about a grace period before the parking period began...

...Although the Code of Practice explained that this period was for motorists to review the terms and conditions and decide whether to stay or go, the reference to grace periods caused confusion for motorists. Many believed they would get a ten-minute grace period before parking commenced, plus a ten-minute grace period after their parking time had finished - a total of 20 minutes. We received appeals from motorists who believed they didn't need to pay parking charges because they'd overstayed for less than 20 minutes.

The BPA has now updated its code of practice to remove the reference to a grace period from 13.2..."

However I think the text in the POPLA Annual Report (pages 4 & 5) actually supports and possibly strengthens my argument as it contains the line "we must determine whether the motorist left the car park as promptly as they could..."

My latest draft below

POPLA Verification Code:
Vehicle Registration:

I received as registered keeper a parking charge notice dated xx/xx/2019 and received a rejection of my initial appeal to the operator on xx/xx/2019. The following are my grounds for why the parking charge notice was incorrectly issued and why this appeal should be allowed.

1. Frustration of Contract
2. Under the protection of Freedoms Act 2012, no relevant contract was formed
3. Grace Periods do not comply with the BPA Code of Practice / guidance in the POPLA Annual Report (2018)
4. Vehicle images on the PCN do not comply with the BPA Code of Practice
5. No evidence to show the full period of parking
6. No Evidence of landowner authority

1. Frustration of Contract.

I consider that Civil Enforcement Ltd failed to take payment and so the doctrine of Frustration of Contract applies. In the absence of sufficient coinage to pay for parking and a meter which only takes coins, a call was made to the claimant’s payment line. This, and two subsequent further calls were unsuccessful. This was because the automated process simply did not work when bank details were attempted to be entered, Calls contain a long, automated preamble, meaning each call would be estimated to take at least 2 minutes. Because the driver was not able to make payment, the driver could not enter into a contract with the claimant, therefore any charges arising from breach of contract cannot apply.

2. Under the protection of Freedoms Act 2012, no relevant contract or obligation was formed because the driver left after being stopped for less than 10 minutes. The 2 minutes and 42 seconds over the stated 10 minutes ‘allowed’, being the time to drive in, find an appropriate place to stop, find a sign, read the sign, attempt payment by two separate methods, decide that that paying for parking was unworkable in this instance and drive out again.

The Department for Transport (2012) Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges, states that:

“5.1 A registered keeper can only be found liable for unpaid parking charges when certain requirements are met. These requirements seek to balance the rights of the motorist and the landholder and are clearly set out in Schedule 4.
5.2 For Schedule 4 to apply the driver of a vehicle must first be liable for unpaid parking charges. There are broadly two situations where a driver could become liable for parking charges:
a. where a driver has entered into a contract to park on private land and failed to comply with the terms and conditions of that contract …

7. How is a parking contract formed?

7.1 Contracts for parking on private land can arise in a number of ways. However normally a car park will have signs setting out the terms and conditions upon which parking is offered. Drivers can then decide whether or not to accept those terms and conditions. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park with the landholder.”

The driver clearly did not enter into a contract and made this clear by leaving as soon as it became obvious that payment was not possible in this instance.


The DfT (2012) guidance also states that:

7.2 Parking contracts, like any contract, must be made in accordance with the general law – for example, consumer protection law would be relevant to establishing whether or not the signs at a car park were sufficient, and the terms and conditions were fair. If it can be shown that a contractual term was unfair, it follows that the term cannot be relied upon to enforce a parking charge.

The terms and conditions were manifestly unfair as they did not comply with the BPA Code of conduct for grace periods (as in point 3, below).

3. Grace Period does not comply with the BPA Code of Practice / guidance in the POPLA Annual Report 2018.
After driving into the car park, finding a suitable space to stop, finding and reading a sign in the car park, attempting to pay via the payment machine (which only accepted coins, of which the driver did not have sufficient) and 3 unsuccessful attempts to pay by telephone, the driver drove out of the car park to find alternative parking. According to the PCN received from Civil Enforcement Limited, this whole process from being recognised by an ANPR camera on entering the car park and again on driving out, took a total of 12 minutes and 42 seconds.

BPA’s Code of Practice (13.1) states that:

“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.”

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

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to
read the terms and conditions before they enter into the contract with you.
If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to
leave, as they will not be bound by your parking contract.”

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for
the motorist to park their car, observe the signs, decide whether they want
to comply with the operator’s conditions and either drive away or pay for a ticket.”

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

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

The POPLA Annual Report 2018 (page 4) Says:
“There is a need for a consideration period before a parking period starts. It is difficult for a motorist to understand the parking conditions without leaving their vehicle: making it necessary to allow time where a motorist can get out of their vehicle, consider the terms and conditions, and decide whether to stay or go. For example, it would be reasonable for a motorist to park their vehicle, walk to the payment machine, disagree with the parking tariff and leave.

The length of the consideration period depends on the motorist and the circumstances. Some motorists might park, walk to the payment machine, disagree with the terms and conditions of parking and leave the car park within a couple of minutes. Other motorists, motorists for example those with restricted mobility might take several minutes to get out (sic) their vehicle, several minutes to get to the payment machine and several minutes to leave.

In such cases we must determine whether the motorist left the car park as promptly as they could when they decided they did not agree with the terms and conditions.” (my italics)

In this case, the driver left the car park to find alternative parking as promptly as possible, once it was established that payment was not possible. Therefore the same principals apply.

4. Vehicle Images on the PCN do not comply with BPA’s Code of Practice.

The BPA’s Code of Practice (31.1) states:
“You may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

In this case the photographs do not include a date and time stamp. It does not show the location of the car park where the claimant states the incident occurred.

5. No Evidence to show full period of parking.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no
record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, POFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”.

Most notably, paragraph 9(2)(a) requires the NTK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Civil Enforcement Limited’s NTK shows images of a vehicle entering and leaving the car park which are used to calculate its “length of stay”. It is not in the gift of Civil Enforcement Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Civil Enforcement Limited are not able to definitively state the period of
parking.

I require Civil Enforcement Ltd to provide evidence to show the vehicle in question was parked on xxx/19 (for the duration claimed) and at the location stated in the NTK.

6. 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 Code of Practice) 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 Code of Practice defines the mandatory requirements
and I put this operator to strict proof of full compliance:

6.2 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.

6.3 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.

Coupon-mad

I would expand that last para in the grace periods section:

In this case, the driver left the car park to find alternative parking as promptly as possible, once it was established that payment was not possible. Therefore the same principles apply and the fact this took twelve minutes not ten, was due to approximately five minutes within that, frustratingly wasted on trying to make the Pay by Phone registration and app work, as per the overly complicated instructions on the sign. It failed, through no fault of the driver (see full explanation under my 'Frustration of Contract' heading above) so they left without accepting a contract.

Also if you have it, add this, as POPLA love this sort of evidence:

Attached is proof that the driver then found another place to park, within minutes of leaving this site (PDT ticket or successful Pay by Phone screenshot).