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Decision
Unsuccessful

Assessor summary of your case
The appellant has provided a detailed account surrounding the parking event in question. For the purpose of my report, I have summarised the grounds raised into the points below. • They advise they are the keeper and deny any liability or contractual agreement and there will be no admission to who was driving and has also quoted the Protection of Freedoms Act 2012 (PoFA). They have also quoted paragraph 9(2)(e)(i) Paragraph 9(2)(e)(i) and said the PCN does not invite the keeper to pay the charge or name the driver. • They say the PCN does not specify the period of parking and just shows ANPR cameras recorded the entry and exit times and not parking times. • They state there is no contract capable of being formed as the signs say “3 hour max stay – Strictly no parking outside of store hours” as the wording is prohibited and outside of store hours, parking is prohibited rather than offered on contractual terms. They say the PCN asserts that the maximum stay was 0 hours 0 minutes and is self-evidently incoherent and impossible to comply with an impossible term cannot form a valid contract. • They say there is a misleading barrier arrangement as the barrier was raised and if the store was closed, this was misleading conduct and failed to provide fair and transparent notice of any restriction. All of the above has been considered in making my determination.

Assessor supporting rational for decision
When assessing an appeal POPLA considers if the 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 operator has provided photographic evidence of the signage in place in the car park, which detail the terms and conditions of parking. The signs state “…Strictly no parking outside of store hours…” The motorist is also advised that failure to comply with the terms and conditions will result in a PCN being issued for £100. The operator has provided Automatic Number Plate Recognition (ANPR) images to demonstrate when the vehicle entered the site and how long it remained there for. • They advise they are the keeper and deny any liability or contractual agreement and there will be no admission to who was driving and has also quoted the Protection of Freedoms Act 2012 (PoFA). They have also quoted paragraph 9(2)(e)(i) Paragraph 9(2)(e)(i) and said the PCN does not invite the keeper to pay the charge or name the driver. 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. • They say the PCN does not specify the period of parking and just shows ANPR cameras recorded the entry and exit times and not parking times. The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators need to comply with. While the ANPR images do not show the period of parking, section 2.19 if The Code states that a parking event begins when a vehicle enters, and remains, on controlled land. • They state there is no contract capable of being formed as the signs say “3 hour max stay – Strictly no parking outside of store hours” as the wording is prohibited and outside of store hours, parking is prohibited rather than offered on contractual terms. They say the PCN asserts that the maximum stay was 0 hours 0 minutes and is self-evidently incoherent and impossible to comply with an impossible term cannot form a valid contract. I have reviewed the signs and can see they state that there is a 3-hour maximum stay and no parking outside of store opening hours. As no parking is allowed, and the vehicle remained on site, the terms were broken. I am satisfied that there is a contract capable of being formed. • They say there is a misleading barrier arrangement as the barrier was raised and if the store was closed, this was misleading conduct and failed to provide fair and transparent notice of any restriction. On private land, barriers are not required to show if the site is open or closed as the terms visible advise motorists what is expected. POPLA’s role is to assess if the operator has issued the charge in accordance with the conditions of the contract. As the terms and conditions of the car park have not been met, as the vehicle remained on site when it was not authorised, I conclude that the operator has issued the parking charge correctly, and the appeal is refused.

POPLA Appeal – Parking Charge Notice [PCN ref]

Vehicle Registration: [VRM]
Operator: ParkingEye Ltd

1. Keeper position – no admission of driver and no keeper liability

I am the registered keeper of the above vehicle and I dispute this Parking Charge Notice. I deny any liability or contractual agreement.

There will be no admission as to who was driving and no inference may be drawn. ParkingEye is put to strict proof of the driver’s identity.

ParkingEye may only pursue the registered keeper if it has fully complied with every requirement of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The burden of proof rests entirely with the operator. As set out below, the Notice to Keeper (NtK) fails to comply with PoFA and therefore keeper liability cannot arise.

2. Failure to specify a period of parking – PoFA Schedule 4, paragraph 9(2)(a)

Paragraph 9(2)(a) of Schedule 4 requires the NtK to “specify the period of parking to which the notice relates”.

The NtK does not specify any period of parking. It merely states the times at which ANPR cameras recorded the vehicle entering and leaving the site. These timestamps are not a period of parking in law and necessarily include time spent driving, manoeuvring, or queueing, when the vehicle was not parked.

As this is a mandatory requirement of PoFA and it has not been met, the NtK is non-compliant and cannot transfer liability to the keeper.

3. Failure to include a valid invitation to the keeper to pay – PoFA Schedule 4, paragraph 9(2)(e)(i)

Paragraph 9(2)(e)(i) requires the NtK to include an invitation to the keeper to pay the parking charge or, alternatively, to name the driver.

The NtK does not do this. Instead, it states that “the driver of the motor vehicle is required to pay this parking charge in full” and then instructs the keeper to name the driver if they were not driving. This wording does not invite the keeper to pay the charge in the alternative, as required by PoFA.

This is a further failure to comply with PoFA, and keeper liability cannot arise.

4. No contract capable of being formed – prohibitive signage

The prominent signage at the site states:
“3 hour max stay – Strictly no parking outside of store hours.”

This wording is prohibitive. Outside store hours, parking is forbidden rather than offered on contractual terms. A prohibition cannot form a contractual offer capable of acceptance, and therefore no contract can exist and no contractual parking charge can arise.

At most, any alleged issue would be a matter of trespass, which could only be pursued by the landowner and not by ParkingEye as a contractual claim.

5. Misleading barrier arrangement – lack of fair and transparent notice

This is a barrier-controlled car park. At the material time:

The entry barrier was raised when the vehicle entered

The exit barrier was raised when the vehicle left

On a barrier-controlled site, the position of the barriers is a key indicator of whether parking is permitted. An open entry barrier reasonably conveys that the car park is open and available for use.

If the store and car park were in fact closed, leaving the barrier open was misleading conduct and failed to provide fair and transparent notice of any restriction. This is contrary to basic consumer law principles and undermines any suggestion that the driver knowingly accepted or breached any parking terms.

6. Nonsensical “maximum stay” of 0 hours 0 minutes

The NtK asserts that the applicable “maximum stay” was “0 hours 0 minutes”.

This is self-evidently incoherent and impossible to comply with. A term that is impossible to perform cannot form part of a valid contract. A Parking Charge Notice relying on such a description is unclear, defective, and unenforceable.

7. Conclusion

ParkingEye has failed to establish keeper liability due to multiple breaches of the mandatory requirements of Schedule 4 of the Protection of Freedoms Act 2012. There is no legal presumption that the keeper was the driver.

Separately and in any event, no contract was capable of being formed due to prohibitive signage, misleading barrier arrangements, and an incoherent description of the alleged parking terms.

For all of the above reasons, I respectfully request that POPLA allows this appeal and directs ParkingEye to cancel the Parking Charge Notice.


Would you make any changes to this or would this be fine?

Reply from Parking Eye. Assuming will need to wait for Popla Code?

Hi all,

Driver has entered the car park after closing hours and entry barrier was open so assumed store was open.
When leaving car park the entry barrier was down but exit barrier open.

Is there any appeal for this?




Thanks