BW Legal successful in parking appeal which provides further clarity on “no stopping” sites

Senior Solicitor at BW Legal, Corrin Brown, discusses a successful appeal decision which he obtained in respect of a parking matter that confirms “no stopping” sites are to be treated contractually in the same way as car parks.

The win has provided greater clarity and certainty for operators of private land and also provides a clear understanding for motorists when using such sites.

The case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, concerned a no stopping site in Wakefield.

The site consists of private land through which the owner’s road attaches to various retail and business operations.  The principal aim of the owner and our client is to ensure the free flow of traffic along the roadways to avoid congestion, and therefore any problems for the connected businesses.

Like any car park, any user of the site is presented with entrance signs, and repeater signs throughout the site.  The difference of course is that, unlike a car park, any user is not permitted to stop on the roadways, though this does not apply once a user enters a retail or business unit.

This case is persuasive as a County Court decision on appeal, and more helpfully, takes us through the application of the Supreme Court’s decision in ParkingEye v Beavis (2015), as well as an appeal decision with very similar facts to our case of VCS v Crutchley (2017).

  • Contractual licence – we successfully argued against the District Judge’s finding that “a driver cannot unwittingly enter into the contract”, with one argument being that a shopper enters into a contract when buying a packet of sweets.  HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represents an offer of a contractual licence, which is accepted when the user drives onto the private land.  He quoted Lord Neuberger in Beavis:

“Mr Beavis had a contractual licence to park his car in the retail park on the terms of the notice posted at the entrance, which he accepted by entering the site”.  This was subsequently accepted by HHJ Wood QC in Crutchley:  “it is unnecessary to consider the principles of offer/acceptance/consideration… because this is a case, as in Beavis, of a contractual license with terms and conditions attached.”

Whilst Crutchley did not consider the elements of a contract, HHJ Saffman went on to say “it seems to me to be equally clear that there is consideration.  The consideration is the license to use these private roads, in the same way as the consideration in Beavis was the licence to park the car.”

We also persuasively quoted the findings of HHJ Wood in Crutchley, confirming that the onus is upon the user to confirm the terms and conditions of the contract, prior to entering the private land if necessary:

“it is incumbent… on a person entering private property, when it is clear that a contractual licence is being provided, to understand the terms of such a licence… even if this required remaining outside and entering on foot, when the contents of the notices in combination, would become apparent.”

  • The breach was not de minimis – HHJ Saffman also agreed that although the user only stopped for a matter of seconds, this was still a breach of the contractual licence on a “no stopping” site:

As regards the judge’s conclusion that this was a trifling event which does not amount to a breach or, if it does, then no relevant breach, then as I say this is clearly contrary to the observations made in Beavis, which as I have said, is realistically indistinguishable, and the conclusions reached in Crutchley, a case on broadly indistinguishable facts.”

  • The nature of the £100 charge – in Beavis, the Supreme Court accepted that “the licence having been terminated…, the presence of the car would have constituted a trespass from that point on.  In the circumstances the £85 can only be regarded as a charge for contravening the terms of the contractual licence

 HHJ Saffman continued to quote Beavis on this point:

 The test of a penalty is whether the impugned provision is a ‘secondary obligation’ which imposes a detriment on the contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation”.

HHJ Saffman therefore himself observed that “The Supreme court took the view that the charge levied against Mr Beavis was not penal, it protected a legitimate interest namely the efficient operation of the car park and the charge was not exorbitant or unconscionable or extravagantly disproportionate to the highest level of damages that could possibly arise from a breach.” 

  • Unforeseen circumstancesBeavis commented that “As for the situation that the overstay may have arisen from unforeseen circumstances, we find it hard to regard that as relevant.  It is reasonable that the risk of exceeding [the paid for time] should rest with the motorist, who is in a position to organise his time as he sees fit…”

HHJ Saffman therefore observed that despite the allegation of a mechanical fault by the user in our case, “the clear message from this passage… is that a breach caused by unforeseen circumstances, certainly a breach that is not caused by the conduct of another, is no defence.”

  • The inapplicability of the Consumer Rights Act 2015 – HHJ Saffman accepted that since Beavis had considered the applicability of this act’s predecessor, the Unfair Terms in Consumer Regulations 1999, he did not see how the new act could be offended by the £100 charge “the fact that the 2015 Act contains more examples of terms that may be regarded as unfair that the 1999 Regulations and includes, as an example of a possible unfair term one which has the “object or effect of  irrevocably binding the consumer to terms which the consumer had no real opportunity to become acquainted with” does not provide a basis for departing from the conclusions in Beavis… the fact that there was a real opportunity to become acquainted with the conditions, even if that meant getting out of the car to read the sign at the entrance.”

This is an excellent result for the parking industry, but also good for motorists as it provides clarity for no stopping sites.

On a personal note, whilst the issue of parking fines for breach are a somewhat contentious issue, I consider that the key point here is that users should recognise that they are parking on, or using, private land.  If a driver parked on someone’s private driveway or land, most people would know that that would be trespass, unless an agreement was in place.

This case recognises the contractual agreement between user and car park operator/private land owner, the legitimacy of any reasonable charge imposed for breach and that it is likely to be difficult to defend such a claim where terms and conditions are clearly set out.

Back To News