3. Parking Eye PCN - After Hours - Asda Hayes
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Parking Eye PCN - After Hours - Asda Hayes
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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
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #1 on: »
There is always an appeal for these Parking Charge Notices (PCNs). Can you get any photos of the terms and conditions signs at the car park? The Notice to Keeper (NtK) was issued for "staying without authorisation" but without seeing what the wording on their terms sign says, that allegation cannot be verified.

There is no legal obligation on the known keeper (the recipient of the Notice to Keeper (NtK)) to reveal the identity of the unknown driver and no inference or assumptions can be made.

The NtK is not compliant with all the requirements of PoFA which means that if the unknown driver is not identified, they cannot transfer liability for the charge from the unknown driver to the known keeper.

Use the following as your appeal. No need to embellish or remove anything from it:

Quote
I am the keeper of the vehicle and I dispute your 'parking charge'. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

As your Notice to Keeper (NtK) does not fully comply with ALL the requirements of PoFA 2012, you are unable to hold the keeper of the vehicle liable for the charge. Partial or even substantial compliance is not sufficient. There will be no admission as to who was driving and no inference or assumptions can be drawn. Parkingeye has relied on contract law allegations of breach against the driver only.

The registered keeper cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtK can only hold the driver liable. Parkingeye have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #2 on: »
Thanks, I will get a picture of the sign and upload it.
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #3 on: »

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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #4 on: »
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:

Quote
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
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #5 on: »
Wow thank you.

I have now appealed with the above and will let you know the outcome.

Thanks again for your help
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #6 on: »


Reply from Parking Eye. Assuming will need to wait for Popla Code?
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #7 on: »
Yes.
Standard fishing letter trying to get you to divulge the identity of the driver.
You can ignore, although @b789 usually prefers to send them a short response.
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #8 on: »
Yup, I would just emailtee following in response to that letter:

Quote
Re: PCN [reference] / Vehicle [VRM]

Dear ParkingEye Team,

I acknowledge your letter dated [date].

As the registered keeper, I am under no obligation to identify the driver and I will not be doing so.

Your correspondence suggests you intend to pursue the keeper under Schedule 4 of the Protection of Freedoms Act 2012. That is misconceived because your Notice to Keeper is not PoFA compliant, including (but not limited to) the following mandatory failures:

1. Paragraph 9(2)(a): you have not specified any period of parking. You have provided only ANPR entry/exit timestamps, which are not a period of parking.

2. Paragraph 9(2)(e)(i): your Notice to Keeper does not include the mandatory invitation for the keeper to pay the charge. Instead it demands payment from the driver and attempts to compel the keeper to name the driver.

As a result, you cannot transfer liability to the keeper. There is no presumption that the keeper was the driver, and I will not enter into any discussion about driver identity.

You have stated the appeal is “on hold” for 28 days. The correct outcome is now straightforward: either cancel the charge, or issue a POPLA verification code so that the matter can be referred to independent appeal. If you reject the appeal, please ensure your rejection letter includes the POPLA code.

Yours faithfully,

[Name]
Registered Keeper
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Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain
Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #9 on: »
I have now recieved a follow up email with the POPLA Ref code.

What would be the next steps to follow?

Thanks
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #10 on: »
You appeal to POPLA using the appeal points you used already, but amplifying or expanding them to lead the POPLA assessors through the reasons why the appeal should be accepted. Refer to the legislation (https://www.legislation.gov.uk/ukpga/2012/9/schedule/4) and why the notice does not comply, and therefore why the liability can not be transferred from the unknown driver to the registered keeper.
There are lots of POPLA appeals documented here.
If you can construct your own and post it here you will get guidance on any improvements or modifications before you send it.
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #11 on: »
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?
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Re: Parking Eye PCN - After Hours - Asda Hayes
« Reply #12 on: »
Point 1 all fine as long as the POPLA assessor agrees with your assessment the PCN breaches POFA requirements. As b789 who gave you that defence argument loves to point out POPLA assessors are not legally trained and are unlikely to get into the semantics of the wording.

Point 2 that's how the industry works, this will not help with getting POPLA to uphold your appeal.

Point 3 see point 1.

Point 4 may be valid, unlikely a POPLA assessor will agree, Parkingeye signage is often held as best practice.

Point 5, I know this car parking having parked the myself. To call it barrier controlled is pushing the concept, from memory it's a couple of manual pole type barriers. Whether they were open or not doesnt materially impact your case. Most car parks don't have barriers, you can assume that means parking restrictions aren't in force.

Point 6 The wording is indeed clumsy but is factually correct, there is a max stay of 0 minutes being offered (consideration period not withstanding),  contractually if you stay longer you agree for them to invoice you at the rate on the signage.

Point 7 let's see what the POPLA assessor thinks.

Bottom line is you don't have any strong grounds for appeal here, the POPLA  appeal is just going through the motions of running the clock down until they (probably) give up before having to pay a court fee.
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