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  • FIRST POST
    • cyoungx2
    • By cyoungx2 27th Jul 17, 10:43 AM
    • 21Posts
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    cyoungx2
    Smart Parking saying that my mum didnt buy a ticket
    • #1
    • 27th Jul 17, 10:43 AM
    Smart Parking saying that my mum didnt buy a ticket 27th Jul 17 at 10:43 AM
    Hi everyone.

    My mum recently had a parking charge notice from smart parking charging her £100 for parking in one of their car parks for 61 minutes when the limit is 60. She went through their appeals process explaining that the extra minute spent was due to a queue to get out of the car park. She has now received a letter saying that they have "checked their records" and found that "no payment was logged against the vehicle". They are implying that when she bought her ticket she typed in her registration wrong so therefore the money she paid is invalid and they are upholding the charge. they have provided a popla code with the letter.

    This is a tricky one as ultimately it comes down to her word against theirs. She threw the ticket away because at that point she didn't think she would need it.

    She thinks she has to pay the charge now. I think its ridiculous and she should fight it. Am I wrong here? What should our next step be?
Page 1
    • waamo
    • By waamo 27th Jul 17, 10:48 AM
    • 2,088 Posts
    • 2,501 Thanks
    waamo
    • #2
    • 27th Jul 17, 10:48 AM
    • #2
    • 27th Jul 17, 10:48 AM
    At the top of this thread is a post starting with Newbies and tells you to reads it first. Take a look as it contains templates to win at POPLA.

    The templates cover all legal bases so no matter what they claim you will win.
    This space for hire.
    • cyoungx2
    • By cyoungx2 27th Jul 17, 10:50 AM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    • #3
    • 27th Jul 17, 10:50 AM
    • #3
    • 27th Jul 17, 10:50 AM
    Thanks Ill look into it.
    • cyoungx2
    • By cyoungx2 27th Jul 17, 12:20 PM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    • #4
    • 27th Jul 17, 12:20 PM
    • #4
    • 27th Jul 17, 12:20 PM
    Using the Template I have come up with the below letter for popla appeal. I would appreciate some feedback from more experienced members if possible.



    A notice to keeper was issued on 28.06.2017 and received by me, the registered keeper of the on 29.06.2017 for an alleged contravention of ‘ALLEDGED BREACH OF ADVERTISED TERMS AND CONDITIONS‘ within Goose Green Multi Storey in Altrincham. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

    1) A Valid Parking Ticket was Purchased
    2) Amount demanded is a penalty
    3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
    4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
    5) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
    6) Misleading and unclear signage
    7) No landowner contract nor legal standing to form contracts or charge drivers
    8) Photo evidence appears doctored

    1) From their rejection of my initial appeal, it appears that Smart parking are trying to claim that they have no record of a payment being logged against the vehicle which I strongly dispute. I paid the amount in full at the paystation, despite the unclear and inadequate signage. Furthermore if no payment was made then it is baffling that the barrier automatically raised to allow the vehicle to leave the car park upon the registration being scanned.
    • cyoungx2
    • By cyoungx2 27th Jul 17, 12:21 PM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    • #5
    • 27th Jul 17, 12:21 PM
    • #5
    • 27th Jul 17, 12:21 PM
    A notice to keeper was issued on 28.06.2017 and received by me, the registered keeper of the on 29.06.2017 for an alleged contravention of ‘ALLEDGED BREACH OF ADVERTISED TERMS AND CONDITIONS‘ within Goose Green Multi Storey in Altrincham. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

    1) A Valid Parking Ticket was Purchased
    2) Amount demanded is a penalty
    3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
    4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
    5) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
    6) Misleading and unclear signage
    7) No landowner contract nor legal standing to form contracts or charge drivers
    8) Photo evidence appears doctored

    1) From their rejection of my initial appeal, it appears that Smart parking are trying to claim that they have no record of a payment being logged against the vehicle which I strongly dispute. I paid the amount in full at the paystation, despite the unclear and inadequate signage. Furthermore if no payment was made then it is baffling that the barrier automatically raised to allow the vehicle to leave the car park upon the registration being scanned.

    2) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear nor ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied the instant the vehicle entered the car park. The signage cannot be read safely from a moving vehicle and there was no visible signage in the dimly lit car park. Advice was sought from an employee of the car park who advised the driver to make a note of the time they entered the car park and then pay the appropriate amount upon returning to the vehicle at a nearby pay station.

    3) If Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

    The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.
    • cyoungx2
    • By cyoungx2 27th Jul 17, 12:22 PM
    • 21 Posts
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    cyoungx2
    • #6
    • 27th Jul 17, 12:22 PM
    • #6
    • 27th Jul 17, 12:22 PM
    4) The car park is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put it to the Operator to provide strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the land owner that this land is not already covered by bylaws.

    POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.
    ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

    5) 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.

    Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

    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."

    The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.
    • cyoungx2
    • By cyoungx2 27th Jul 17, 12:23 PM
    • 21 Posts
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    cyoungx2
    • #7
    • 27th Jul 17, 12:23 PM
    • #7
    • 27th Jul 17, 12:23 PM
    6) The alleged contravention, according to Smart Parking, is in ' alleged breach of advertised terms and conditions” It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. Smart Parking are required to show evidence to the contrary.

    I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

    7) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Smart Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Smart Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require Smart Parking Ltd to demonstrate their legal ownership of the land to POPLA.

    I contend that Smart Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

    I believe there is no contract with the landowner/occupier that entitles Smart Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Smart Parking Ltd to prove otherwise so I require that Smart Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that Smart Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

    8) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps. By close examination of the photographs, the details (time, date, licence plate) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

    I would challenge Smart Parking Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

    I therefore request that POPLA uphold my appeal and cancel this PCN.
    • Loadsofchildren123
    • By Loadsofchildren123 27th Jul 17, 12:39 PM
    • 1,593 Posts
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    Loadsofchildren123
    • #8
    • 27th Jul 17, 12:39 PM
    • #8
    • 27th Jul 17, 12:39 PM
    POPLA have made several decisions recently saying that unless the driver/RK can produce evidence, the presumption is in favour of the PPC. This is a load of bunkum. But if you lose at POPLA stage, don't be disheartened and defend this claim on the basis that Mum did pay and didn't contravene any contract that may have existed.
    In civil proceedings, the burden of proof is on the Claimant to prove its case on the balance of probabilities (ie a feather's weight over 50%). Your mother will have to say she paid. The judge will have to decide who (s)he believes. I can't see that there will be any reason to believe your mum didn't pay, as this is what she has claimed all along. If they want to prove she didn't pay then they can produce the data they rely on to claim she didn't (which they won't).
    • cyoungx2
    • By cyoungx2 27th Jul 17, 12:46 PM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    • #9
    • 27th Jul 17, 12:46 PM
    • #9
    • 27th Jul 17, 12:46 PM
    Thank you. does the popla letter look ok?
    • Loadsofchildren123
    • By Loadsofchildren123 27th Jul 17, 1:40 PM
    • 1,593 Posts
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    Loadsofchildren123
    I think so, but I concentrate more on court proceedings than POPLA so please wait for someone else to comment.
    • KeithP
    • By KeithP 27th Jul 17, 1:56 PM
    • 4,471 Posts
    • 2,792 Thanks
    KeithP
    1) From their rejection of my initial appeal, it appears that Smart parking are trying to claim that they have no record of a payment being logged against the vehicle which I strongly dispute. I paid the amount in full at the paystation, despite the unclear and inadequate signage. Furthermore if no payment was made then it is baffling that the barrier automatically raised to allow the vehicle to leave the car park upon the registration being scanned.
    Originally posted by cyoungx2
    As you are writing as the registered keeper, and later on you are stating you are not going to identify the driver, I would strongly suggest you replace 'I' in the above paragraph with 'the driver'.

    There may well be points that others will raise, so wait for further comment.
    .
    • Coupon-mad
    • By Coupon-mad 27th Jul 17, 2:01 PM
    • 51,506 Posts
    • 65,118 Thanks
    Coupon-mad
    3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
    4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
    5) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
    You can't use ANY of the above, nothing about the POFA, if in her first appeal, Mum 'blabbed' about who was driving...

    What happened when you/she complained to the Store manager?

    That should be done NOW, before POPLA. VERY assertively, do not leave it up to Mum, really insist on cancellation.
    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.

    • cyoungx2
    • By cyoungx2 28th Jul 17, 10:11 AM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    She hasn't complained to the manager of the shopping centre yet. I will be doing so on her behalf this morning. Thank you for your advice!
    • cyoungx2
    • By cyoungx2 28th Jul 17, 10:16 AM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    Unfortunately, where she parked is a multi storey car park not connected to the shops she went to. not sure who to complain to.
    • cyoungx2
    • By cyoungx2 28th Jul 17, 10:41 AM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    Update: I found a news article stating that the derwent group own the car park so I am complaining to them. fingers crossed.
    • The Deep
    • By The Deep 28th Jul 17, 10:51 AM
    • 7,376 Posts
    • 6,423 Thanks
    The Deep
    One Minute, they are joking. They should read this.


    http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html
    You never know how far you can go until you go too far.
    • cyoungx2
    • By cyoungx2 7th Aug 17, 11:08 AM
    • 21 Posts
    • 4 Thanks
    cyoungx2
    Heard nothing back by contacting the land owners directly so I'm going to have to send the popla appeal off now. wish us luck!
    • bluehippoblue
    • By bluehippoblue 6th Sep 17, 11:39 PM
    • 1 Posts
    • 0 Thanks
    bluehippoblue
    Hi Cyoungx2,
    just wondering if there was any update from either Derwent or POPLA.
    The reason Im asking is that I have also received a £100 charge for parking in Goose Green without a ticket.

    Ive never been to this car park before and I was genuinely confused about their system, as there was old poles and structures left over from the previous old ticket barrier system but i couldnt see any signage telling me what to do. I parked very close to the entrance in the first bank of cars and around me were only parking signs for contractors and gym users. I actually thought it might be free after they had dismantled the old ticket-barrier system. When i returned after 3 hours i saw a parking station on the other side but on inspection it seemed to me like a pay and display since it displayed a scale of time based charges : 0-1 hour £x 1-2 £x etc.
    Thinking there was no point in paying and displaying since i was about to exit, I then left the car park.

    I then received a parking charge from Smart Park for £100 and had no idea there was even an ANPR system in place and thought their signage where I parked was poor and confusing.

    Just curious if you had any progress when i saw your post!

    thanks !
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