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  • FIRST POST
    • fine76
    • By fine76 12th Jun 17, 3:08 PM
    • 3Posts
    • 0Thanks
    fine76
    Smart Parking PCN
    • #1
    • 12th Jun 17, 3:08 PM
    Smart Parking PCN 12th Jun 17 at 3:08 PM
    i received a PCN from Smart parking in which i appealed, unfortunately , my appeal was rejected and i was sent a popla verification code.
    in my appeal initially, i only appealed as a registered keeper .
    the car park s a free car park for 180mins but a ticket is required which clearly was forgot to obtain, was in the car park for 99 mins

    please how do i appeal this with popla and what are my chances of winning

    i have 7 days left to appeal to popla

    thanks a bunch

    worried single mum
    Last edited by fine76; 15-06-2017 at 3:18 PM.
Page 1
    • Redx
    • By Redx 12th Jun 17, 3:10 PM
    • 16,567 Posts
    • 20,721 Thanks
    Redx
    • #2
    • 12th Jun 17, 3:10 PM
    • #2
    • 12th Jun 17, 3:10 PM
    nobody can say if you will win or not, or what the chances are

    but you should appeal and use post #3 of the NEWBIES sticky thread to compose your draft popla appeal, post it here for a quick check before subitting it before the 28 days is up (so by friday)

    legal arguments will be used , like

    NO LANDOWNER AUTHORITY
    POOR OR INADEQUATE SIGNAGE
    NTK FAILURES
    BPA CoP FAILURES

    etc

    I would also urge you to get a landholder cancellation asap too, without revealing the driver
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 12th Jun 17, 10:29 PM
    • 51,538 Posts
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    Coupon-mad
    • #3
    • 12th Jun 17, 10:29 PM
    • #3
    • 12th Jun 17, 10:29 PM
    nobody can say if you will win or not,
    OK, I'll bite, Redx! This OP will of course win at POPLA.

    it's Smart Parking, they do not use the POFA, and she's appealed as registered keeper. Couldn't get much easier, just copy another one from 2017 and adapt it to suit, appealing as keeper and pointing out that the NTK is 'non-POFA' (no keeper liability possible) in wording and dates.

    I have no idea why people find POPLA stage hard, when the NEWBIES thread gives already-written, proven to win, POPLA appeal templates in post #3 to copy and put together - or, an OP can simply search the forum for 'Smart POPLA' and copy one.

    A cinch.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • fine76
    • By fine76 13th Jun 17, 1:21 PM
    • 3 Posts
    • 0 Thanks
    fine76
    • #4
    • 13th Jun 17, 1:21 PM
    • #4
    • 13th Jun 17, 1:21 PM
    hello all,
    thanks for prompt response,

    the below was what was sent to Smart parking before and upon reading the newbie#3, it looks like the popla appeal will be same as well, am i right in saying this ?

    To whom it may concern,

    Appeal as a registered keeper of the car with Reg no – PCN no

    I confirm that your speculative invoice dated 26/04/2017 to ......... has been passed on to me on the supposed grounds that I was the driver of the above vehicle at the relevant date, time and location ,For the sake of clarity I confirm that I am the registered owner.

    Please note however, I shall not be paying the sum demanded or passing on your invoice to the driver at the time and would be grateful if you would kindly treat this communication as an appeal/complaint.

    The grounds upon which I dispute liability for any sum are as follows:

    1. The charge is not an appropriate amount. It is trite law that the imposition of charges for parking or trespassing on another person’s property MUST reflect the actual loss incurred by that action. Since this is a free car park and still within the allocated time of 3 hours there is no loss to the landowner so any charge is punitive which has been held in the High Court (1) to be unenforceable.

    2. I am not liable for the parking charge. Your company have no proprietary interest in the land and thus unable to offer me a contract to park on the land. Simply put, you have no locus standi or legal capacity to contract with me.

    3. Inadequacy of signage.
    I have inspected and have not seen adequate signage as required by the BPA code of conduct.
    The driver entered the said premises at past 9 at which time it was too dark to see any sign and if there are signs, they are too small to be seen by the driver to notice.

    4. I do not hold or have ever had any contractual agreement or obligation with you hence any charge cannot be upheld on the basis of entering a contract with yourself as stated in your notice.

    In conclusion, since the car park is a free car park for 3 hours, and the time stamp on the PCN indicates the car was at the premises for less than 2, I believe I am not liable to pay any charges and if liable, I will be paying what the loss of the land use is to the owner which is £0 .
    I require Smart parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Smart parking cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park

    On the above account, I ask that the above PCN be cancelled with immediate effect, I will only appeal further if you provide me with a POPLA ref no.

    Please note that if I will be required to attend a court hearing and I win, Smart Parking will be liable for all cost incurred throughout this process which include but not limited to loss wages - to attend court hearing, harassment/ pain and suffering, emotional stress, transportation to court, envelops, postage stamps etc.

    Note
    I tried to do this appeal online but I have been asked to try again in 24 hours, hence why I will be posting this and I have a photocopy of same


    Yours faithfully
    The registered owner
    • Redx
    • By Redx 13th Jun 17, 4:04 PM
    • 16,567 Posts
    • 20,721 Thanks
    Redx
    • #5
    • 13th Jun 17, 4:04 PM
    • #5
    • 13th Jun 17, 4:04 PM
    frankly, the above seems a load of rubbish when you think that the SUPREME COURT ruled on the BEAVIS case over 18 months ago and so the high court topic quoted cannot be correct

    and if SMART complied with POFA2012 then they can transfer liability to the owner from the driver , so being an owner is possibly irrelevant , but if they didnt comply with POFA2012 then expand on this point

    I would look at the examples in post #3 of the NEWBIES sticky thread and start again , using

    NO LANDOWNER CONTRACT
    POOR AND INADEQUATE SIGNAGE
    NTK errors
    POFA2012 errors
    BPA CoP failures

    etc
    Last edited by Redx; 13-06-2017 at 4:07 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 13th Jun 17, 6:59 PM
    • 51,538 Posts
    • 65,145 Thanks
    Coupon-mad
    • #6
    • 13th Jun 17, 6:59 PM
    • #6
    • 13th Jun 17, 6:59 PM
    That first appeal is OK in that it didn't say who was driving.

    You simply need to copy another, recent Smart POPLA appeal about 'no keeper liability'. It's that easy.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • fine76
    • By fine76 15th Jun 17, 3:22 PM
    • 3 Posts
    • 0 Thanks
    fine76
    • #7
    • 15th Jun 17, 3:22 PM
    • #7
    • 15th Jun 17, 3:22 PM
    Thank yu Coupon Mad, you have been of immerse help.

    please find below the appeal i will be submitting to popla, please note the car park is a free car park for 3 hours and i was there for less than 2 hours

    Dear Sir / Madam,

    Re: Parking notice: xxxxx POPLA Verification Code: xxxx Vehicle reg: xxxxxx
    Issued by: Smart Parking Ltd

    I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by SmartParking Ltd in respect of an alleged breach of Parking Terms and Conditions at <LOCATION> on <DATE>. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
    I the registered keeper of vehicle registration ******* and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:

    Appeal point 1

    The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (FOPA)

    Schedule 4 Paragraph 9 of the Protection of Freedoms Act 2012 strictly defines the criteria that any NTK must comply with. The PCN detailed above does not comply with POFA on the following clauses

    - 9 (2) (b) "The notice must inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full". The NTK does NOT state the driver is required to pay parking charges, nor does it state that the parking charges have not been paid in full as this is a free car park.

    - 9 (2) (d) "The notice must specify the total amount of those parking charges that are unpaid, as at a time which is (i) specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))". The NTK does nots state the total amount of the parking charges that were unpaid. In fact it makes no reference to the charge that should have been paid or any monies paid towards that value whatsoever.

    - 9 (2) (e) "The notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper- (i)to pay the unpaid parking charges; or (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver" The NTK does not state that the creditor does not know both the name of the driver and a current address for service for the driver.

    - 9 (2) (f) "The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid". The NTK does not provide this warning, it does not refer to needing the drivers name and current address nor does it state that the creditor has the right to recover from the keeper after 28 days if it does not have this information. It merely states that a parking charge needs to be paid within 28 days.



    APPEAL POINT 2 – SIGNAGE NOT VISIBLE

    The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.


    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    I believe the signs at this car park do not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed. As the car park was entered at past 9 at night when it was dark, the sign was invisible and it has no light under to identify it as a sign

    The signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    Since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, I believe these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':


    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put smartparking to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require smartparking to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    Appeal point 3 - NO KEEPER LIABILITY
    As the owner of the vehicle, I have not named the driver of the vehicle or provided serviceable address for the driver of the vehicle. As the registered keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of FreedomsAct 2012 have been satisfied.

    The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

    Appeal point 4 - NO CONTRACT

    As Smartparking does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what Smartparking is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put Smartparking to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 The written authorisation must also set out:

    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d) who has the responsibility for putting up and maintaining signs

    e) the definition of the services provided by each party to the agreement

    The Charge is not a genuine pre-estimate of loss, nor is it proportionate or commercially justifiable Law BPA guidelines.
    Smart Parking’s signs and written correspondence (Notice to Owner) states the charge is for 'breaching the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss.
    The car park is free for a period of 3 hours and the said car was in the premises for less than 2 hours

    This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

    Smart Parking’s rejection of my appeal, as the vehicle owner, states that as of Oct 2014 a pre-estimate of loss is no longer required but that guidelines issued in Oct 2014 para 34.6 state that the charges must be proportionate and commercially justifiable. Smart Parking’s charges are outrageously disproportionate, indeed punitive in nature and intent. Moreover the charges are entirely unjustifiable from a commercial perspective, other than merely to charge as much money as they think they can get away with



    On the basis of all the points raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP

    I look forward to your prompt reply.

    Yours faithfully,
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 12:11 AM
    • 51,538 Posts
    • 65,145 Thanks
    Coupon-mad
    • #8
    • 16th Jun 17, 12:11 AM
    • #8
    • 16th Jun 17, 12:11 AM
    All OK except remove this below. Smart are right, you can't argue no loss any more, since 2015. But you will win anyway!

    The Charge is not a genuine pre-estimate of loss, nor is it proportionate or commercially justifiable Law BPA guidelines.
    Smart Parking’s signs and written correspondence (Notice to Owner) states the charge is for 'breaching the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss.
    The car park is free for a period of 3 hours and the said car was in the premises for less than 2 hours

    This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

    Smart Parking’s rejection of my appeal, as the vehicle owner, states that as of Oct 2014 a pre-estimate of loss is no longer required but that guidelines issued in Oct 2014 para 34.6 state that the charges must be proportionate and commercially justifiable. Smart Parking’s charges are outrageously disproportionate, indeed punitive in nature and intent. Moreover the charges are entirely unjustifiable from a commercial perspective, other than merely to charge as much money as they think they can get away with
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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