Here’s a recent POPLA decision for you. We will look at extracts from the assessor’s highly questionable reasoning and then see the exact evidence they had before them which resulted in them arriving at their decision. The verbatim wording of the assessor’s reasoning will be printed red. Let us begin,
POPLA assessment and decision
08/03/2016
5162405102
Decision: Unsuccessful
Assessor Name: Safoora Sagheer
Assessor summary of your case: The appellant’s case is that there is a lack of signage and the signage is inadequate. He states that there is no signs [sic]
that state a permit should be displayed.The exact text of the appellant’s original appeal contained: "...............subsequent visit to the site revealed that there is alternative signage on the estate detailing that a charge of £100 is payable for not displaying permits but there were not any of these signs present near to where the relevant vehicle was parked......…"
Assessor supporting rational for decision: The signage also explains that failure to adhere to the terms and conditions will result in a Parking Charge Notice (PCN) to the value of £100. Here is the clearest of the operator’s images the assessor had to go on,
The British Parking Association (BPA) Code of Practice (COP) states entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. I am satisfied that the entrance sign displayed meets the standards of those set by the BPA COP.The next image is what the operator provided as entrance signage,
The BPA COP also mentions under section 18.3 “specific parking- terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”. I am aware that the appellant states there is lack of signage and the signage is inadequate, however, this does not detract from the fact it remains the appellant’s responsibility to comply with the terms and conditions displayed on site and ensure a valid parking permit is displayed in clear view of the parking attendant.The specific parking terms signage which the BPA say must be throughout the site was as per the signage image above and placed along the roadways which were marked with double yellow lines and ‘no loading’ kerb markings. The signs where parking spaces were are shown in a composite of two operator images below.
As such, I am satisfied that the signs were adequately visible to the motorist. The BPA COP also states if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner or their appointed agent. In reference to this I am satisfied the operator has provided a parking scheme agreement confirming it is authorised by the landowner to issue PCNs to vehicles parked on the site in a manner not permitted under the terms and conditions of parking.Section 7.1 of the COP states, “...........it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding charges.” POPLA are very easily satisfied I find,
The appellant says the parking charge does not represent a genuine pre-estimate of loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “...the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.Here is the email Safoora Sagheer sent to the appellant before considering the appeal,
Dear Xxxx Xxxxxxx
Your parking charge Appeal against P4 Parking.
In order to assess your Appeal fully we need some further information. Please let us know:
The Supreme Court has now issued its decision in relation to ParkingEye-Vs-Beavis.
As previously advised, POPLA placed this appeal on hold until we had considered our position in relation to this.
We have now considered our position and will allow both sides to provide any further comments or evidence regarding the Supreme Court’s decision.
We asked parking operators for their responses first, so we were able to share them with appellants. The parking operator made no further comments / provided no further evidence for your appeal
Please provide your comments or additional evidence within seven days as responses after this point will not be considered.
We look forward to hearing from you shortly.
Please enter this information onto the portal using the log in details that were provided previously.
We need to receive this information within seven days of the date of this correspondence in order to include it as part of the assessment of the Appeal. Anything that is provided after this time may not be considered as part of the assessment and the decision will be made based on what has already been received.
Yours sincerely
Safoora SagheerNote the operator did not send anything further in. Here is what the assessor ignored from the appellant and forged ahead with making the operator’s case for them,
This additional evidence concerns the ParkingEye Ltd -v- Beavis judgement and how it differs substantially from this particular set of circumstances. For ease of reference, the entire judgement can be found at,
https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdfWhen determining the legitimacy of the £85 charge the Lords made it clear that it would only be fair and reasonable if the signage was clear, prominent and frequent. I refer to the following extracts from the judgement,
Para 90. “At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.”
Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”
Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
Para 287: “In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable”
Here is the signage ParkingEye submitted for the beavis case,
(Shamelessly nicked from
this Parking Prankster blog)
and P4Parking signage for this case,
We can see then that the key terms of the ParkingEye Ltd signage are in high contrast black and yellow with the charge element of the terms being in the largest font. These signs were agreed by both parties as being frequent and throughout the site.
P4Parking signage not only has smaller and more condensed wording but the element of what the charge is (if there is one) is not prominently displayed. In any event there were no signs of this nature near to where the relevant vehicle was parked at the time of the alleged breach. There was in fact alternative, contradictory signage directly adjacent to where the relevant vehicle was parked, as detailed in the original appeal submissions. It is my submission that P4Parking Ltd have failed to bring their alleged terms to the attention of motorists they wish to contract with and their evidence submitted would likely fail any court test.
Another reason that the Beavis judgement does not apply to this case is that an element of free parking was at the heart of the judgement. This was discussed at length and frequently throughout the case, an example being,
Para 212 (b). “There is not a significant imbalance between the parties’ rights and obligations, when the motorist is given a valuable privilege (two hours free parking) in return for a promise to pay a specified sum in the event of overstaying, provided that sum is not disproportionately high.”
Para 213. I agree with the way Judge Moloney QC put it, as did the Court of Appeal. In the result, I would dismiss Mr Beavis’s appeal.
There is no consideration of free parking at Royal Arsenal but simply parking for authorised users only. This means trespass law rather than breach of contract law must be applied. Only quantifiable losses may be recovered leaving the £100 charge as an unenforceable penalty. The charge also goes against UTCCR.
As the appellant did not keep to the terms and conditions of parking, by failing to display a parking permit, I am satisfied that the PCN was issued correctly. Accordingly, I must refuse the appeal.
