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Hi

Thanks for your reply. I will await the LoC and advise further.

In the meantime, here is the POPLA response. I have tried to break it up as best as possible to make it readable...

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. Parking operators have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper. The parking operator has transferred liability to the registered keeper so they are not holding the driver liable. The PCN also invites the registered keeper to name the driver to transfer liability and if no driver details are provided, they will hold the registered keeper liable for the charge. It also advised that if no driver is identified they have the right to recover any unpaid part of the parking charge from the keeper. I am satisfied that it invites the keeper to pay the charge if no driver is identified.

The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows the signs state “…2 hour max stay between 10am – 11pm…NO PARKING OUTSIDE OF THESE TIMES…Failure to comply with the terms & conditions will result in a Parking Charge of:£100…”. The signs clearly inform motorists of the terms of parking at the site, and offers a contract to motorists using the site, if they overstay the maximum stay time or park at the site when no parking is allowed the motorists is accepting a PCN will be issued to them. I am satisfied that the terms and conditions are fair under The Consumer Right Acts 2015 as the terms are made clear to motorists and it is the motorist’s choice if they choose to park there and accept the terms that are on offer.

The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.

Section 19.2 of the Code says parking operators need to have entrance signs that make it clear a motorist is entering onto private land. In this case the parking operator’s evidence shows there is an entrance sign to inform motorists they are entering private land and terms and conditions apply. The site map provided by the parking operator shows there are 6 signs installed at the site informing motorists of the terms and conditions of using the site. There is sufficient signage installed at the site based on the size off it.

While I appreciate there are no images of the appellants vehicle parked near a sign, there is no requirement for the parking operator to provide these as their evidence shows signs are installed throughout the site.

Section 19.4 of the Code of Practice states that if parking operators intend to use the keeper liability provisions in Schedule 4 of the Protection of Freedoms Act (PoFA) 2012, the signs must give adequate notice of the charge. The signs have the PCN amount in large white text on a black background, I am satisfied that the PCN amount is adequately brought to motorists’ attention.

Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the parking operator has provided as signed contract from March 2021 which is valid for 36 months. The contract does say it renews automatically unless either party terminates the contract. I am satisfied the parking operator has a valid landowner contract.

The parking operator uses Automatic Number Plate Recognition (ANPR) cameras at the site to record how long each vehicle stays on the site for and the time they entered. As the parking operator has shown that the appellants vehicle entered the site at 09:12, 48 minutes before parking is allowed at the site, and left at 10:08 the PCN has been issued by the parking operator the vehicle was parked at the site for 38 minutes when no parking was allowed. Whilst I note the appellant has raised comments to POPLA after reviewing the operator’s case file, the comments expand on the initial grounds raised and I have addressed those within my report. Therefore, the comments do not require any further consideration.

After considering the evidence from both parties, the appellants vehicle was parked at the site when no parking was allowed without being authorised to do so and therefore the driver did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

Dear b789 and DWMB2

Thank you so much once again for your continued help and support on this case. I am so grateful for your contributions.

I have now submitted the response to the operator summary and await the outcome.

As an aside, I did also just note that the contract states that the parking time limit is a 2 hour max stay between 11am and 11pm. This differs from all the signage at the site that state the 2 hour max stay is between 10am and 11pm. I am unsure if this difference between the contract and signage renders the PCN unenforceable however.

Thanks once again 

Here is the contract as PNG images

https://imgur.com/a/MpRHHa9

And here uploaded to google drive

https://docs.google.com/document/d/1PUYVPqkV6v4KJPoCH3rWM_NIHxze9PSr/edit?usp=drive_link&ouid=107001667705145103993&rtpof=true&sd=true

Do you have any better quality images of the contract they've provided? The small print is illegible in your uploads.

The original word document sent to me containing the contract was very poor quality but was marginally better quality than after I converted it to jpg and uploaded to imgur.
I can upload the original word doc if there is a way to do that?

Thank you so much for taking the time to draft the reply above. I have now submitted my appeal to POPLA and will wait for their reply.

I would like to sincerely thank everyone who has taken the time to view and respond to this post so far, especially b789 and DWMB2. Your help and support are truly appreciated, and I am so grateful for your contributions.

Just to add, I noticed that the PCN has the location as 'KFC Portsmouth, North Harbour'. I have searched further through the forum and believe this is insufficiently accurate i.e. it does not specify the address or postcode.

Yes, there are legal precedents that touch on the idea that no contract is formed when parking is forbidden during certain hours, or when there is no genuine offer of consideration. One key point is the absence of an offer and no consideration when parking is prohibited or when certain conditions, such as a store being closed, are in place.

Vine v London Borough of Waltham Forest [2000] EWCA Civ 106: In this case, the Court of Appeal ruled that a motorist cannot be deemed to have agreed to the terms of a parking contract if they were unaware of the terms. If parking is prohibited, then the motorist is not accepting an offer but rather breaching a restriction, and no contract is formed.

Thornton v Shoe Lane Parking [1971] 2 QB 163: In this case, Lord Denning held that an offer must be clear and capable of being accepted by the driver. If no clear offer is made, no contract is formed. When parking is expressly prohibited during certain hours or in specific circumstances, no valid offer can be made, thus preventing a contract from being formed.

ParkingEye Ltd v Beavis [2015] UKSC 67: This is the leading case on parking charges, but it also reinforces the point that contracts in these situations are formed based on an offer of parking. However, if parking is not permitted at certain times (such as when a store is closed or outside designated hours), no valid offer is made, and no contract can be said to exist. The judgment implies that for a charge to be enforceable, a valid offer and acceptance must be in place, meaning the signage must constitute a genuine offer.

If the signage suggests a punitive charge rather than an offer to park, especially during times when parking is not allowed (such as when the store is closed), then the argument can be made that no contract was formed due to the lack of consideration and the absence of a valid offer.

Thank you so much for your continued help with this appeal, it is very much appreciated. I will therefore submit my appeal to POPLA essentially using your wording/links and also the update you posted previously as supporting evidence.

I'll update again should this go further.

Thanks!

Appeals are routinely rejected. But when they do reject, you then have a shot at POPLA. It's also often considered a reasonable thing to do - if someone writes to you demanding money, and you don't believe you owe it to them, it's generally considered reasonable to tell them as such and explain why.

Yes, point taken thanks. Should the Parking Eye appeal be rejected then I will appeal to POPLA as suggested. If I may I will post my appeal on here before sending in, just to make sure I have the points down correctly.