How to deal with unreasonable private parking fines
What they are and how to challenge one.
What they are and how to challenge one.
I recently received two letters in my mailbox. Being in my mid 20s means the mailbox is largely ignored in favour of my email inbox and by the look of the water-damaged edges, the letters had been there for a few days.
After ripping open the first envelope, I found three words glaring up at me in bold font.
Parking Breach Notice.
I had been charged $65 for overstaying by 45 minutes in a free supermarket carpark. I had 14 days to appeal the notice, but it wasn’t until 20 days after the ticket had been issued that I opened the letter, so appealing wasn’t an option. I couldn’t deny that I had overstayed, pictures of my car entering and exiting the park were at the top of the letter.
The letter said if I didn’t pay after 21 days, a further $20 dollars would be added to the fee. If I didn’t pay after that, my debt would be forwarded to a debt collector. I was terrified as I opened the second letter – a reminder notice.
I rushed inside and paid the fee, hoping to avoid the extra $20 and the debt collectors. It was only when the relief set in that I realised I should’ve challenged the penalty.
When you drive into a carpark there’s usually at least one sign with tiny letters setting out the terms and conditions of parking. That’s the contract you accept when you park there. If you don’t pay or you overstay, you’re in breach of the contract and liable to pay a fee, generally set out in advance.
Where I parked, the fee for overstaying in breach of the contract was $65. It seems a bit much for overstaying in a free car park.
Indeed, the courts won’t enforce a clause that is a punishment or penalty.
In layman’s terms, the parking fee should be reasonably reflective of the actual loss suffered by the operator. Anything out of proportion to what's reasonable is likely to be an unenforceable penalty.
So, operators of private car parks can only charge what is reasonable to cover their loss. If I had paid $3 to stay an hour, but overstayed by two hours, the operator might have lost $6 for the revenue it otherwise would have earned if the park was available to be used by someone else. It costs about $3 to send a letter, and there might be $10 worth of lost time to review the footage and send me the letter. In this case, I think a $19 fee would be fairly reasonable.
But what costs are incurred when the car park is free and empty? The operator isn’t missing out on any parking revenue because patrons don’t pay to park. Additionally, I overstayed later at night, when most of the parks were empty, so I wasn’t taking up space that could have been used by someone else. The only costs incurred by the operator were administrative, reviewing footage and sending me the two letters.
Parking Enforcement Services, a division of Wilson Parking, issued my breach notice. Wilson Parking said the $65 enforcement fee covered “staff wages, training, uniforms, vehicle maintenance and fuel, signage, health and safety equipment, field supervision and back-end administration such as call centre staff, appeals processing and our enforcement management software system”.
But is $65 reasonable?
We don’t think so, even if the fee is set to deter a breach. Compared with the fines local councils are allowed to charge, $65 is a hefty sum. There are maximum limits on fines that are imposed on local councils by legislation. If I had overstayed in a public carpark across the street from the supermarket carpark by 45 minutes, it would have cost me no more than $15.
John, a Consumer member, got in touch with his breach notice problems. John said he’d visited the same supermarket that I did to pick up some groceries.
“I exited the park on Jan 31st within the 90-minute limit, and re-entered the park the next day, Feb 1st.”
John was confused when he received his own breach notice in the mail. “Its charge is that I entered the car park at 1.35pm on January 31st and left the next day at 2.34pm Feb 1st.”
John said he notified the staff of the supermarket in question. It told him it has “had a number of complaints on this subject”.
“They graciously said they will take care of it.”
But why did the operator fine him in the first place?
John was concerned that Parking Enforcement Services “have been taking fees under false pretences.”
“It appears it is selectively picking pictures of cars entering and exiting carparks in such a way as to illustrate the cars are overstaying. It's relying on people to be intimidated into paying by the legalese of the notice,” he said.
When we told Wilson Parking John’s story, it said the notice had been waived. “Customers can appeal breach notices, request more time to appeal, re-appeal if they disagree with the outcome.”
We think Parking Enforcement Services ought to take reasonable care when issuing enforcement notices to get the details right before it is sent.
The breach notices said any appeal received must be received within 14 days to be considered for review. We don’t think 14 days to appeal the notice is long enough.
Wilson Parking said “the timelines to appeal meet private parking enforcement industry standards and are similar to other private enforcement operators, which differ from councils and other statutory organisations”.
We think an operator should give you at least the time in which the fine is due, in my case 28 days, to appeal. Local councils including Wellington and Auckland give you 56 days to appeal their fines, others give you at least 28.
A longer time to appeal is crucial because other appeal pathways such as the Disputes Tribunal will set you back $45 for filing, more than half the price of the fee.
Wilson Parking said “all appeals are considered on merit and this can include when an appeal has been received after the 14-day timeline”.
“If a customer contacts us requesting more time to appeal we are happy to arrange this and we are currently reviewing the 14-day timeline based on customer feedback.”
When it comes to debt collection, it’s up to the carpark operator to decide if it’ll pass the debt on to a debt collector.
It was the possibility of debt collection that swayed me most to pay the fine. I was particularly worried about debt collection negatively impacting my credit rating in the future, like when I eventually try to apply for a mortgage. However, your credit record only shows any unpaid debt from the last five years that was $125 or more, so don’t let that influence your decision to pay.
If you’re unfortunate enough to receive an excessive or unjustified parking fine, be sure to challenge it in writing. You can use the letter template below to challenge an excessive parking fine. Do this as soon as possible because debt collectors can’t approach you while the debt is in dispute.
When you appeal, pay what’s reasonable in the circumstances instead of the whole fine. Don’t pay if you’re disputing that the fine was applicable, like John.
If the enforcement agency chases you for the balance, let them know you still dispute the debt so it can’t send it to the debt collectors. Either party could then file a claim at the Disputes Tribunal, but given the $45 filing fee, this is likely to be a last resort.
If you’re a Consumer member, our advisers can help you sort out any private parking disputes.
I refer to breach notice number [notice number on letter]. I wish to appeal this notice on the grounds that the fee of [insert fee amount] is out of proportion to your reasonable losses.
Under New Zealand law, you can only charge what is fair and reasonable in the circumstances to protect your legitimate business interests. The fee you have charged is out of proportion to this.
As the rate for this car park was [insert dollar amount], your loss of revenue equates to [hourly rate applied to length of overstaying].
To reflect [loss calculated above if applicable] and your legitimate business interest in deterring a breach as well as reasonable administrative costs incurred in enforcing the terms and conditions, I have enclosed/paid to your nominated bank account [insert dollar amount to cover reasonable costs, we recommend $15 plus applied hourly rate].
I therefore consider that the matter is resolved.
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