No evidence of landholder authority
The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator. It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.
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 “relevant 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 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
4 No evidence of landowner authority
PPS have issued their invoice to me assuming consent from the landowner, but have provided no evidence that the landowner has provided that consent. It is assumed that PPS are themselves not the landowner and it is unclear that they have any authority to issue an invoice on behalf of the landowner.
I don't know what a POPLA appeal form looks like - so am just logging on to it to see. I presume I'll be able to back out of it. Broadly my intention is to submit the same appeal provided to me previously, maybe making small adjustments to counter what PPS responded with, if appropriate.
1. No keeper liability - failure to comply with Schedule 4 of the Protection of Freedoms Act (PoFA)
The driver has not been identified and this invoice has been issued to me as the vehicle keeper. The vehicle has been photographed in "Matisse Street". The invoice has been issued as a charge for parking in "Holloway Street, Hounslow". There is no evidence provided that the vehicle at any stage entered Holloway Street, much less parked there. The invoice has therefore been issued incorrectly as the relevant land required under paragraph 9(2)(a) of PoFA has not been correctly identified and therefore, as the registered keeper, I cannot be held liable. Maps attached (one from Ordnance Survey and one from Google Maps) highlight the location where PPS show the vehicle, on Matisse Street.
2. The driver was not afforded a sufficient consideration period
It is well-established in contract law that a party cannot be bound by contract terms with which he has had no real opportunity of becoming acquainted. This is reinforced by 5.1. of the Private Parking Sector Single Code of Practice, which deals with appropriate consideration periods. The pictures taken by the PPS operative of the vehicle cover a period of ~1 minute, a time that is clearly insufficient to properly read the terms of the alleged contract.
3. The signage is incapable of forming a valid contract between PPS and the driver
The signage at the site states "NO PARKING AT ANY TIME", and "strictly no parking, waiting or loading at any time". These instructions are clearly forbidding, and make no offer to the driver to park on certain terms. On the contrary, they forbid any parking or waiting. If there is no offer to park on certain terms, there can be no contract, meaning no charge can be due.
(https://i.ibb.co/hDTf2m6/Ordnance-Survey.jpg) (https://ibb.co/86QcP7C)
(https://i.ibb.co/WvsWD2s/Google-Maps.jpg) (https://ibb.co/7tbJg1b)
Successful POPLA appeal against Private Parking Solution (London) Ltd. Matisse Road / Holloway Street Hounslow.
Decision: Successful
Assessor Name: Stuart Lumsden
Assessor summary of operator case
The operator has issued the parking charge notice (PCN) due to parking in a no parking area.
Assessor summary of your case
The appellant has raised the following points from their grounds of appeal:
• They say they were dropping their daughter off at a party on the day of the breach.
• They say their daughter has a disability which limits their mobility and as such, they parked as close to ‘Flip Out’ as possible.
• They say they stopped on Matisse Road to drop off their daughter and wife and waited for less than 5 minutes for their wife to return before leaving.
• They say they didn’t realise they were on private land and saw no signs.
• They say no contract can be formed as no parking or waiting is permitted.
• They say the parking operator has not complied with 13.1 of the BPA Code of Pracitce.
• They say they did not stop on Holloway Road, but Matisse Road, which is not private land.
• They say they stopped forwards of the sign and could not see it as it was too small.
• They add that Matisse Road is a public highway and they did not stop on the operators land.
• They say the signs are too small to be read whilst driving and do not make the boundaries clear as it’s assumed they refer to the parking bays which they did not use.
The appellant has provided the following as evidence to support their appeal:
• Images of the site, the route to the sign and signs on site. The above evidence will be considered in making our determination.
Assessor supporting rational for decision
I find in favour of the appellant and allow this appeal, below I will explain my reasoning.
I acknowledge the appellants grounds of appeal and appreciate they only stopped to drop off their daughter at a party. I acknowledge the images provided to demonstrate their route to the site, the area they stopped and the land in question. I note the appellant parked largely on the road, but partially on the white lines.
I also note the appellant parked next to signs but was unaware of any terms as they claim they didn’t see any, but has commented to advise that the signs are too small upon review of the evidence, the boundaries aren’t clear and what area the signs relate too.
As such, I have reviewed the parking operators evidence pack and it has provided images of signs throughout the site, a site map showing the controlled areas and also the location of the signs. According to the site map the appellant stopped on Holloway Road, not Matisse Road. The appellants evidence shows the entrance to Matisse Road, but I must conclude that they stopped on Holloway Road.
Whilst the road is public land, the land to the side of it is not. The operators site map shows the area they control which includes the white lines, but only part of the white lines. I must agree with the appellant that the signs do not make the boundaries clear. One would assume that the signs refer to the parking bays and not the road or white lines. I accept that there are signs in place which should have been reviewed by the appellant, but the operators site map does not show the area they parked is monitored by them.
As stated above, the operator monitors the side of the road including the white lines, but not all the white lines. It’s down to the operator to demonstrate that the appellant breached the terms and conditions and whilst I accept they stopped partially on the white lines, I cannot conclude that the signs are clear enough to make motorists aware that the white lines are part of the relevant land or that the white lined area the appellant stopped is monitored by the parking operator.
As such, I cannot conclude that the PCN was issued correctly and must allow the appeal. I note the appellant has raised other points relating to the parking charge notice, but as I have allowed the appeal it will have no bearing on the case.