Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Bunglebear32
    • By Bunglebear32 18th Sep 17, 10:36 PM
    • 14Posts
    • 2Thanks
    Bunglebear32
    Smart Parking POPLA Appeal Northampton
    • #1
    • 18th Sep 17, 10:36 PM
    Smart Parking POPLA Appeal Northampton 18th Sep 17 at 10:36 PM
    Hi all

    So I've tried to read the Newbies thread but what a minefield! Anyhow, I've tried my best to copy and paste the relevant information and put together a POPLA appeal. Please could someone give me some advice before sending. Hopefully a new thread is the right thing to do..

    Appeal RE POPLA code 851*******

    I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver and I express my
    I contend that I am not liable for this parking charge on the basis of the below points:

    1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met. The PCN issued by Smart Parking fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’
    This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter Smart Parking revealed too late that they contend that ‘no payment was made’ on the date in question. This is an alleged ‘fact’ that the NTK failed to state in the first place. If this operator should change their story yet again for POPLA and perhaps try to show that a ‘wrong VRN’ gave rise to the charge, POPLA please note that that would prove my point that this NTK has no ‘facts’ and also fails to describe those parking charges which they contend remain ‘unpaid’ by the driver.
    So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

    2) The operator has not shown that the individual who it is pursuing is in fact 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.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.
    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 – they will fail to show I can be liable because the driver was not me.

    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.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''


    3) Smart Parking has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

    I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
    I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.
    I do not believe that the contract allows Smart Parking to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.
    Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
    “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.''


    4) 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:

    *LINK HERE*

    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.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    *LINK HERE*

    This case, by comparison, does 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.

    Here, 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.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, 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.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    *LINK HERE*

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    *LINK HERE*

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    *LINK HERE*

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    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:

    *LINK HERE*

    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.


    Under BPA Code of practice October 2015, paragraph 34.4 states ‘drivers must be given advance notice of all parking charges before they enter into the contract’. The only way in which a motorist would be able to read these terms would be to sit at the entrance of the car park, causing a hazard by positioning a vehicle halfway into the flow of traffic, by which time the ANPR system would register the vehicle as entering the car park. I also wish to point out having visited the car park to take photographic evidence, there is contradicting information at the entrance, with some signage stating that the car park is for ‘permit holders only’ So, for this appeal, I put this operator 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 this operator 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
Page 1
    • Coupon-mad
    • By Coupon-mad 18th Sep 17, 11:20 PM
    • 51,711 Posts
    • 65,364 Thanks
    Coupon-mad
    • #2
    • 18th Sep 17, 11:20 PM
    • #2
    • 18th Sep 17, 11:20 PM
    Great first post! The only thing I would add would be to point #1, because the main thing about Smart Parking's Notices to Keeper is:

    - they usually arrive later than day 14, and even if this one didn't,

    - they omit the warning about keeper liability after 29 days (see 9(2)f of the POFA Schedule 4).

    So add the above - both, if it arrived late - so that POPLA are left in no doubt it's not a POFA NTK.

    You'll win, as long as the driver was not admitted in the first appeal, nor ''driver'' chosen in any drop-down menu on Smart's appeal page.
    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.

    • Bunglebear32
    • By Bunglebear32 19th Sep 17, 6:54 AM
    • 14 Posts
    • 2 Thanks
    Bunglebear32
    • #3
    • 19th Sep 17, 6:54 AM
    • #3
    • 19th Sep 17, 6:54 AM
    Thank you for the advice :-)

    I really wish I'd read this forum before I appealed. I really can't remember if I did name the driver- it only dawned on me after I appealed that I wasn't actually the driver! I have witnesses to prove this is the case if it escalates but hopefully I wouldn't have been so stupid.
    • Coupon-mad
    • By Coupon-mad 19th Sep 17, 11:36 AM
    • 51,711 Posts
    • 65,364 Thanks
    Coupon-mad
    • #4
    • 19th Sep 17, 11:36 AM
    • #4
    • 19th Sep 17, 11:36 AM
    Include the statement 'I was not the driver' when explaining about the missing 9(2)f wording and if it arrived later than day 14.
    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.

    • Bunglebear32
    • By Bunglebear32 12th Oct 17, 10:38 PM
    • 14 Posts
    • 2 Thanks
    Bunglebear32
    • #5
    • 12th Oct 17, 10:38 PM
    • #5
    • 12th Oct 17, 10:38 PM
    I'm happy to report that today I received an email from POPLA informing me that Smart Parking are not fighting the case.

    Many thanks for your help!

    I do have another case on the go with NPM which unfortunately I chose to ignore and am now being bombarded with letters from Wright Hassall.

    Hopefully I'm right in thinking I should continue to ignore unless NPM themselves issue an LBC to which I write a letter from post #2 Newbies?

    I've never had a parking ticket but 2 months living in Northampton and I've landed 2 on my doormat!

    Thanks!
    • Redx
    • By Redx 12th Oct 17, 10:49 PM
    • 16,895 Posts
    • 20,997 Thanks
    Redx
    • #6
    • 12th Oct 17, 10:49 PM
    • #6
    • 12th Oct 17, 10:49 PM
    correct

    and unlucky

    lol

    hopefully you are now suitably informed as to how these sc@ms operate and will try to avoid entrapment in the future
    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
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

2,982Posts Today

7,676Users online

Martin's Twitter