Parking Charge Notices are not actually a fine. They are a service charge that private landowners and car park owners can charge when you park on their land.
Legal Basis for Parking Charge Notices
What makes these charges legal is they are based on contract law. This means when you park your car on a private landowner’s land you can, in certain circumstances, be deemed to have entered into a contract with them.
For a contract to be formed they must first offer you the terms on which they agree to let you park on their land.
This is usually done by displaying those terms and conditions on a sign before you drive onto the land. It is important the terms and conditions are displayed before you drive onto the land.
This is because under the law of contract the landowner must offer the terms before you accept the offer. As you are deemed to accept the offer when you drive onto the land, the terms and conditions must be displayed before you enter (you are expected to look for them).
Displaying the Parking Terms and Conditions
The sign that displays these terms, therefore, should be displayed at a height that is easily visible, not too high and not too low. The type face should also be of an easily readable font size, again not too small.
The term should also state clearly the terms that you can park on the land or in the car park. It should also state what happens if you don’t observe those terms.
So, if a ticket should be displayed in your car, it should say this. If you are only allowed to park for a certain period, it should state this also.
It should also state what happens if you don’t abide by these rules.
If there will be a service charge, it should state this and how much it will be.
How do Parking Companies know who you are?
Parking Companies will operate cameras on their sites or will employ Parking Attendants.
If you breach the terms of the contract, they will identify your car using the Parking Attendants, who will most likely take a photograph of your car or they will use CCTV to do so.
They can then fix the fine to your car, but equally they may post the notice out to your address.
They can do this if they are a Private Company registered under the Approved Operator Scheme operated by the DVLA. This allows certain firms to purchase the details of the registered keepers of cars.
In 2017-18, Firms registered with these bodies purchased details of over 5 million car owners from the DVLA.
Can Parking Charge Notices be Challenged?
Parking Charge Notices can be challenged and should if you think they are wrong, as they can be enforced through the Courts.
Providing they are constituted properly, they are legally binding contracts.
There are a number of strategies you can utilise in challenging a Parking Charge Notice if you believed it has been applied wrongly.
Is the Firm Registered?
The first thing to check: is the Firm registered as a member of a recognised trade body that allows it to be part of the DVLA’s Authorised Operators Scheme?
If a firm is not registered and, therefore, not part of the Approved Operators Scheme, they are unlikely to be able to find out who you are from the DVLA.
You may, therefore, want to ask yourself, do you want to pay a fine to a Firm that has attached a fine to your windscreen or handed it you, but is not likely to be able to get your address from the DVLA?
Some argue you should just ignore them, but if they do locate you, they can still take you to Court. Alternatively, you can still write to them outlining the reasons why you think the charge is wrong. Some may choose not to write to they receive a letter through the post from the Firm.
If the Firm is registered, then the next route that should be used to dispute the Fine is to use the Firm’s internal appeal process and their Trade body’s independent adjudication service.
This is a free process, doesn’t involve lawyers and also doesn’t prevent you raising a defence in Court if you fail and the Firm then takes you to Court.
There are a number of possible arguments you could use, both during the appeal process or in Court.
Some of these are outlined below for illustrative purposes, but you may want to tailor them to suit the specifics of your case.
Remember gathering evidence is important, so ask for evidence from the Firm and scrutinise it. There has been incidents of private firms fraudulently tampering with photographic evidence and being banned by the DVLA from the Approved Operator’s Scheme, so stay alert.
You can also gather your own evidence. Photograph the signs, as these are crucial to whether a contract was formed, take written statements from those that were with you. If a ticket machine was out of order, then photograph it.
Was a Contract formed?
As stated above, if the firm did not display it’s terms in an easily accessible format before you entered the contract, and only displayed them once you entered the car park, then arguably those terms do not apply to your contract.
Equally, if the sign does not expressly say you will be charge a certain amount if you break the terms of the contract, then the firm may not have any legal basis for charging you the amount they are trying to charge you.
Is it Factually Correct?
Some firms, even firms that have been part of the Approved Operators Scheme, have been found to be fraudulently tampering with photographs, showing vehicle owners over-staying their time in a car park, when they didn’t.
One firm, who has now been banned by the DVLA, was found to be sending fines to people stating they have overstayed, when they had not.
In one set of photographs, it was shown the cloud formation in the sky behind a car was the same, despite the timestamp on both photos showing hours of a difference between them.
Another showed the boot of an adjacent car open in both photos, despite the timestamp in both photos being hours apart.
For this reason, if you dispute what the Firm is saying, ask for evidence to show that you committed the breach they allege you committed.
Is the Service Charge Reasonable?
Previously it was believed that the charges private firms charged did not have to be paid, as they were not legally enforceable. This was because they called them “penalty” charges or “fines” and under the law of contract, punitive charges are not allowed.
This means firms can only charge you for a breach of contract for a reasonable amount that represents their loss.
This was the decision in a UK Supreme Court case (ParkingEye Ltd v Beavis  UKSC 67) and applied to England, Wales and Northern Ireland. It does mean Firms can enforce reasonable charges, however. In Scottish case heard in Dundee Sheriff Court a similar decision was made in Vehicle Control Services v Mackie.
Firms, therefore, may only charge a reasonable amount if you stay beyond your allotted time on the land.
What constitutes reasonable is hard to ascertain, but if you believe the charge a firm is charging you is excessive and punitive, they should provide proof it represents a reasonable assessment of their losses.
Ultimately, it is for a court to decide if the charge is reasonable or not; but it should be borne in mind, if a challenge is made on these grounds and unsuccessful, not only may you have to pay the charge, but also the other party’s legal costs.
Were you driving the Vehicle?
If you are the Registered Keeper of a car but were not driving it at the time the fine was charged, you can argue that you are not liable for the fine.
To do this, you would need to notify the Company, once you receive the notice.
It is likely you will be expected to give the name and contact details of the person that was driving the vehicle. If you don’t, then at present although there is no concept of Registered Keeper’s liability in Scotland, a Court may presume, in the absence of you identifying the driver, that you were the driver.
The law in Scotland is expected to change with the introduction of the Transport (Scotland) Bill, which will introduce the concept of Registered Keepers Liabilty.
This will mean where the identity of the driver is not known, the Registered Keeper can be held liable.
If your defence is the car had been stolen, you will be required to provide proof of this by providing a police crime reference number.
Don’t be afraid to cite mitigating circumstances, if something caused you to commit a parking violation. so if you had to park over a bay because of another driver’s parking (you may want to take a photograph as evidence); or if you were late back because of a disability, don’t be afraid to point this out.
You may also want to appeal to the owner of the land who may be different from the Parking Firm. So you could write to the Hospital if you parked on hospital land, or to the supermarket (especially if you have been in their shop spending money. You may want to show them your receipt).
How to Appeal a Parking Fine Notice
Parking firms should operate an appeal process. If they are members of the British Parking Association or the International Parking Community, this is a requirement of their membership.
When you receive a notice from a firm it should notify you also of their internal appeal process and how you make an appeal.
The firm should acknowledge receipt of your appeal within 14 days of them receiving it; and ultimately decide it within 35 days of it being made.
If they choose to reject your appeal, they should notify you of the Parking on Private Land Appeals (POPLA) Tribunal process if they are members the British Parking Association; or the Independent Appeal Service if they are members of the International Parking Community
Previously appeals to POPLA was not possible, if you were in Scotland or Northern Ireland, but this change on the 1st May 2019.
These are independent processes and you can submit an appeal after you have used the Firm’s own internal process first.
Going to Court for a Parking Charge Notice
If you dispute a Parking Charge Notice and intend to defend it in court, you should seek advice first.
You can obtain advice from your local Citizen Advice Bureau or from a solicitor.
More information can be obtained on going to Court by visting the Scottish Court Website.
How are Parking Charge Recovered?
Like with the Penalty Charge Notice, private firm Parking Charge Notices can be enforced through the courts and recovered using Sheriff Officers and diligence, legal debt recovery procedures, such as:
- Serving Charge for Payments;
- Executing Earning Arrestments;
- Attachment of a vehicle; and
- Arresting a Bank Account.
Can Parking Charges Damage your Credit Score?
If a Decree is obtained from the Court and the amount owed not paid with 30 days, it may be registered on your Credit Report.
It will, therefore, damage your Credit Score.
Can your Vehicle be Clamped for a Parking Violation?
Wheel clamping has been banned in Scotland since 1992. So no private firm should clamp your car.
If your vehicle is clamped, even wrongly, you should not remove the clamp yourself, but contact the Police. If you remove the clamp yourself you may find yourself charged with vandalism.
Parking (Code of Practice) Act 2019
The Parking (Code of Practice) Act 2019 was passed by the UK Parliament in March 2019. It provides the Secretary of State with new powers to issue guidance to private parking firms and to issue guidance relating to fees and penalties.
As at the time of writing this article, this Code of Practice has not been produced. It will apply across the whole of the UK.