Free Traffic Legal Advice

Posting on behalf of RK.

This occurred on private land adjacent to a Tesco Express car park. No marked bays. Owner is a car dealership on the same complex as the Tesco express.

Driver pulled into the private parking area, but did not exit the vehicle. RK went into Tesco Express.

Date of sending: 30th October
Date of arrival: 5th November
Contravention date: 25th October
Contravention period: from 12:46:33 to 12:48:11.
Reason: Vehicle not Pre-Authorised (No E-Permit)

"This charge relate to the period of parking specified above, having been incurred for the reason(s) stated. The liability of the charge was brought to the attention of the driver by clear signage in and around the contravention location at the time of parking on private land."

The signage states (among other things)...

"Important contractual information (underlined)

No parking, loading/unloading, idling or waiting is permitted on the access roads, pavements or hatched areas at any time.

If you are unsure of the terms and conditions, please refrain from parking and seek further guidance from OPS.
"

I can provide the full details if necessary but my query largely revolves around two aspects of this, my understanding of which I'd like to clarify:

1. The main point is that I understand there should be a "consideration period" of 5 minutes to allow the driver to determine whether or not to agree to the terms. Since the contravention period ends within 5 minutes of the start time, then there can be no assertion as to whether or not the driver agreed to the terms.

2. If the driver did not leave the vehicle then they cannot be considered to have parked. Regardless of whether the contractual information includes "idling", the driver would still have to have been idling for 5 minutes to be considered to have agreed to the terms.

If there are fairly obvious grounds for appeal on this basis then I will pass this on to the RK, but otherwise there is no desire to put endless hours into avoiding this charge.

>  Stopping but not leaving the car can well be described as parking

Sure but I read there is legal precedent for this not being the case.

https://contestorlegal.co.uk/unparalleled-legal-victory-defining-the-true-meaning-of-parking/

OK, fair enough.

But the consideration period is reasonable grounds for appeal?

It would help if you were to show us the Notice to Keeper (NtK) you received (both sides). Do NOT redact any dates or times on it.

OPS is a notorious, bottom-dwelling firm of ex-clampers who are out to scam as many motorists as they can.

The first point about the "period of parking" is certainly enough to argue that no contract was formed with the driver. The PPSCoP mandates in section 5.1 the following:

Duration of parking period
05

Duration of parking period

COMMENTARY ON CLAUSE 5
As a matter of contract law, drivers need to be given an appropriate opportunity to understand and decide whether to accept the terms and conditions that apply should they choose to park a vehicle on controlled land. The amount of time needed varies according to the nature and size of the premises, and in car parks open to the public includes the time needed to find and access a vacant parking bay, or to leave the premises should the driver decide not to park, hence the need for a consideration period before the contract between the driver and the parking operator is made. It is also a requirement to allow a grace period in addition to the parking period where parking is permitted, and all terms and conditions have been complied with.

5.1. Consideration period
Where a parking operator assumes a vehicle is parked based on time alone they must allow a consideration period of appropriate duration, subject to the requirements set out at Annex B. The following factors should be taken into account:

a) the time required for a driver to identify and access a parking bay appropriate to their needs;

NOTE 1: For example, a driver seeking a Blue Badge parking bay or a parent and child parking bay, waiting for another vehicle to vacate a bay, returning to the vehicle to check the VRM, queuing at a payment machine, etc.

b) the time required for a driver to identify and read signs that display the parking terms and conditions, or the consequences of choosing to park where public parking is not invited;
c) the time required for a driver to identify and comply with requirements for payment;
d) the time required for a driver to leave the controlled land if they decide not to accept the terms and conditions;
e) the impact of the layout of the controlled land on 5.1a) to 5.1d);
f) the impact of the number of vehicles accessing the car park on 5.1a) to 5.1d); and g) the impact of the volume of traffic within the controlled land on 5.1a) to 5.1d).

NOTE 2: The consideration period may end earlier than the times prescribed in Annex B where there is evidence that the driver has, accepted the terms and conditions applying (whether or not they have chosen to read them) which may for example be evidenced by the driver parking the vehicle and leaving the premises, paying the applicable parking tariff, or remaining on the controlled land for more than 5 minutes. See Annex B Table B.1

By issuing a PCN without allowing the minimum consideration period of 5 minutes, they have not evidenced that a contract was formed with the driver.

Also, you should, if possible, get some photos of the signs that purport to form the contractual terms and conditions and the general layout of the car park and the prominence of the signs.

The alleged contravention is: “Vehicle not Pre-Authorised (No E-Permit)”.:If you intend to rely on Jopson, what was the “loading or unloading” event?

It would help if you could show the actual wording on the sign, not just a selective section of it. Without this, it is not possible to determine whether the sign was even capable of forming a contract.

The wording you have described, in and of itself, may be prohibitive, but there is more to that would provide context. For example, if the location is ONLY for permit holders, then a non-permit holder cannot be bound by any terms and could only be liable for trespass, which OPS cannot sue because they are not the landowner, and even if they could, any amount would be negligible.

Stop.

You need to post up the PCN redacting personal details - if you want to receive proper support that is.

I can almost guarantee you are personally missing critical details if you proceed with your appeal at this point.

What is the location of the event?

Okay, so the site itself is quite complex in terms of who owns what. From Google / Bing it looks like Tesco have the bit at the front and the car dealer has the bit at the back. However, the position of the Tesco signage could easily make the driver consider that the whole car park was for Tesco customers - that wouldn't be unreasonable.

This is probably one of those honeytrap sites where the parking company employees specific monitoring due to the high number of people being caught in the same scenario - aka a money spinner.

The vehicle doesn't look like it's obstructing anything or stopped in a hatched area - is that correct?

So technically they would have to offer the grace period. However, in this scenario (with high monitoring) they may well argue that a passenger leaving the vehicle constituted acceptance by the driver - it's nonsense of course but these people will try anything.

Question; did the passenger return to the vehicle before the driver pulled off site?

The passenger got out when the car was not in the monitored area, then the driver reversed into the monitored area and the passenger returned to the car. So there’s no view of the passenger getting out - it could be viewed as picking someone up