The driver entered the car park after store closing hours and saw that the entry barrier was raised. This created a reasonable belief that the store and car park were open for use, as barrier-controlled sites normally indicate availability by the position of the barrier. When leaving, the exit barrier was open, reinforcing the impression that parking was permitted. Only the entry barrier had lowered by that time, but this inconsistency makes it impossible to conclude that the driver knowingly parked in breach of any term.
The signage states that parking outside of store hours is strictly not permitted. This is a prohibition rather than an offer, which means no contract could be formed. A driver cannot accept a contract where the sign simply forbids parking rather than offering parking for a charge. In such circumstances, no contractual parking charge can arise.
The notice to keeper also states that the maximum stay was zero hours and zero minutes, which is nonsensical and incapable of forming the basis of a contract. A term that is impossible to comply with cannot create liability.
Even if ParkingEye attempts to rely on the Protection of Freedoms Act, keeper liability can only exist where clear terms were offered and breached. No clear contractual term was offered here because the wording was prohibitive, the barrier position conveyed that the site was open, and the driver could not reasonably have known that parking was not authorised.
In consumer law, operators must ensure that all terms are fair and transparent and must not mislead users by omission or conduct. Leaving the barrier open while relying on a prohibitive term that is not prominently conveyed does not meet that standard.
The overall position is that no contract was formed, the conduct of the operator misled the driver into believing the site was open, and the alleged term is unclear and unenforceable.
Appeal as follows:
Subject: Parking Charge Notice [PCN ref] – Vehicle [VRM]
I am the registered keeper of the above vehicle and I dispute your Parking Charge Notice. I deny any liability or contractual agreement.
There will be no admission as to who was driving and you must not make any inference or assumption. You are put to strict proof of the driver’s identity. Your Notice to Keeper can only transfer liability to the keeper if every requirement of Schedule 4 of the Protection of Freedoms Act 2012 is met; the burden is entirely on ParkingEye to demonstrate full compliance.
In fact your Notice to Keeper fails to comply with at least paragraphs 9(2)(a) and 9(2)(e)(i) of Schedule 4.
1. Paragraph 9(2)(a) – no period of parking
Your notice does not specify any “period of parking” as required. It merely states the times at which ANPR cameras recorded the vehicle entering and leaving the site. Those are not, in law, the same thing as a period of parking, and they include time spent driving, queueing, or otherwise not parked. The mandatory requirement of 9(2)(a) is therefore not met.
2. Paragraph 9(2)(e)(i) – no invitation to the keeper to pay
Your notice does not contain the required invitation to the keeper to pay the parking charge. Instead it states that “the driver of the motor vehicle is required to pay this parking charge in full” and demands that, if the keeper was not the driver, they must name the driver and pass the notice to them. That wording is not what Parliament prescribed in 9(2)(e)(i) and it does not invite the keeper to pay the charge in the alternative. As such, the condition in 9(2)(e)(i) is not satisfied and keeper liability cannot arise.
Given these failures, ParkingEye cannot hold the keeper liable under PoFA. There is also no legal presumption that the keeper was the driver, nor can liability be imposed on the keeper under any supposed law of agency. Your Notice to Keeper can only ever have effect against the driver.
Separately and in any event, no contract was capable of being formed at this site. The prominent signage states “3 hour max stay – Strictly no parking outside of store hours.” This is a prohibition, not an offer of parking on terms. Outside store hours parking is simply forbidden, so no contractual licence is offered and no contractual parking charge can arise. At most, any issue would be a matter of alleged trespass for the landowner, not a contractual claim for £100 by ParkingEye.
At the material time the entry barrier was raised and the exit barrier was raised when the vehicle left. On a barrier-controlled site, the position of the barriers is a key part of how the operator indicates whether the car park is open. An open entry barrier reasonably indicates that the site is available for use. If the store and car park were in fact closed, leaving the barrier open was misleading and failed to give fair and transparent notice of any restriction.
Your own notice then asserts that the applicable “maximum stay” was “0 hours 0 minutes”. That is self-evidently incoherent and incapable of forming a clear parking term which any reasonable motorist could understand or comply with. A Parking Charge Notice relying on such a nonsensical “maximum stay” is void and unenforceable.
In light of (a) the NtK’s clear non-compliance with PoFA 2012, and (b) the prohibitive signage, misleading barrier arrangements and defective description of the alleged contravention, there is no lawful basis to pursue the registered keeper for this charge. I will not be naming the driver.
Please confirm that the Parking Charge has been cancelled. If you refuse, I require a POPLA verification code so that I may refer the matter to independent appeal.
Yours faithfully,
[Name]
Registered keeper
