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  • FIRST POST
    • Joity
    • By Joity 14th Nov 17, 9:23 AM
    • 9Posts
    • 1Thanks
    Joity
    PCN Appeal rejected by Smart
    • #1
    • 14th Nov 17, 9:23 AM
    PCN Appeal rejected by Smart 14th Nov 17 at 9:23 AM
    Hi, I am new to this and do not know how to handle the situation.
    My car was parked at a retail car park managed by Smart Parking and a ticket was purchased for 29 minutes of stay. I then received a "Parking Charge Notice - Do not ignore" It states on the letter "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted". The charges for the particular car park is 80p per hour which was paid.

    Appealed online to Smart Parking and sent them a photo of the ticket which was purchased. Smart parking took there time in dealing with the appeal, even sent an email asking them for an update to which they replied that an appeal had been received and they have 35 days to reply, they finally replied stating they are upholding the PCN but have frozen the discounted £60 if I pay in the next 10 days.The reason why they have rejected the appeal is due to the ticket not having the full registration of the car. At the time of buying the ticket a registration umber would have been entered however looking at the ticket did notice that only the first letter of the registration was on the ticket. At the time of the ticket it was not clear how and if even the registration number would have been on the ticket.

    Can I appeal against this? How do I start please help.
    Last edited by Joity; 14-11-2017 at 10:04 AM.
Page 1
    • fisherjim
    • By fisherjim 14th Nov 17, 9:24 AM
    • 2,588 Posts
    • 3,850 Thanks
    fisherjim
    • #2
    • 14th Nov 17, 9:24 AM
    • #2
    • 14th Nov 17, 9:24 AM
    Start by reading the newbies thread!
    • Quentin
    • By Quentin 14th Nov 17, 9:37 AM
    • 33,605 Posts
    • 17,504 Thanks
    Quentin
    • #3
    • 14th Nov 17, 9:37 AM
    • #3
    • 14th Nov 17, 9:37 AM
    Throughout here you are advised never to reveal who was driving


    Assuming you didn't when appealing then you need to edit your OP to remove details of who was driving
    • Joity
    • By Joity 14th Nov 17, 9:47 AM
    • 9 Posts
    • 1 Thanks
    Joity
    • #4
    • 14th Nov 17, 9:47 AM
    • #4
    • 14th Nov 17, 9:47 AM
    Throughout here you are advised never to reveal who was driving


    Assuming you didn't when appealing then you need to edit your OP to remove details of who was driving
    Originally posted by Quentin
    Quentin,
    I have edited the post and also at no point was the driver mentioned.
    • Quentin
    • By Quentin 14th Nov 17, 9:50 AM
    • 33,605 Posts
    • 17,504 Thanks
    Quentin
    • #5
    • 14th Nov 17, 9:50 AM
    • #5
    • 14th Nov 17, 9:50 AM
    I have edited the post and also at no point was the driver mentioned.
    Originally posted by Joity
    Needs more editing then!!
    • nosferatu1001
    • By nosferatu1001 14th Nov 17, 11:39 AM
    • 1,185 Posts
    • 1,228 Thanks
    nosferatu1001
    • #6
    • 14th Nov 17, 11:39 AM
    • #6
    • 14th Nov 17, 11:39 AM
    So you appeal to POPLA, newbies thread. As the driver wasnt revealed, and I htink Smart still cant get their !!!! in gear with keeper compliance, you should win on that.

    Either way, to the enwbies thread you go. come back with specific questions and a draft of your appeal.
    • Joity
    • By Joity 14th Nov 17, 9:39 PM
    • 9 Posts
    • 1 Thanks
    Joity
    • #7
    • 14th Nov 17, 9:39 PM
    • #7
    • 14th Nov 17, 9:39 PM
    Hi Guys,
    Please let me know your thoughts on the below.

    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.
    1. I contend that I am not liable for this parking charge on the basis of the below points:

    No keeper liability – no adequate notice of the parking charge. Also, the ‘parking charges that remained unpaid’ were not described.
    The operator is trying to hold me liable under the POFA Schedule 4 but there was no adequate notice of any £100 charge, there were no clear signs near the places the driver parked which was at the back of the car park in an unlit area and any other terms were too high to read or obscured.
    2ndly, the NTK fails to ‘describe the parking charges that remained unpaid’ (tariff). The PCN 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 ‘insufficient time was paid for’ on the date in question. Not only is this not true but it 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 as mentioned above.
    Therefore, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was.

    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.
    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) On this day there were issues with the machine.
    The driver paid for the parking using the machine keypad and followed instruction given on the screen, which were hard to read in the first place. Having placed the money in the machine to cover 1 hour’s stay the machine printed out a ticket. The driver did what the instruction required and made the payment which was required. If there was an issue with the registration then the machine should not have printed the ticket.
    If a keypad fault caused the system not to record the VRN correctly, then that is a matter within Smart Parkings control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
    (LINK AS IN THE TEMPLATE)
    In this case under appeal now, in all probability, there was a machine failure as in the above similar court case.

    5) Breach of the BPA Code of Practice on ANPR.
    It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN.
    The payment made for 1 hours stay would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.
    I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 1-hour payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks.
    And the situation is fully within this operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already).
    To charge under these circumstances with a faulty machine, was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP.
    Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, the driver had no idea that secret camera data would later be used to bind him/her to a charge he/she knew nothing about and did not agree to. Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:


    6). The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

    So the driver purchased a ticket for the duration of the stay. It was the failure of the machine to not identify the car for which it was intended for neither is it the fault of the driver that Smart-Parking did not check their records before issuing a PCN.
    No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable.

    This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
    ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’

    And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Clearly a charge ‘out of all proportion’ to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a keypad or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

    The Consumer Rights Act 2015 supports my position that the failure in performance of the keypad and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
    (LINK AS IN THE TEMPLATE)
    - Schedule 2: 'Consumer contract terms which may be regarded as unfair':
    ’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
    ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
    The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

    (LINK AS IN THE TEMPLATE)
    ’’Prohibition of unfair commercial practices’’: 3.—
    (1) Unfair commercial practices are prohibited.
    (2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
    (3) A commercial practice is unfair if—
    (a) it contravenes the requirements of professional diligence; and
    (b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
    (4) A commercial practice is unfair if—
    (a) it is a misleading action under the provisions of regulation 5;
    (b) it is a misleading omission under the provisions of regulation 6; ‘’

    I have shown that Smart Parking have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.


    7) The signs are not prominent, clear or legible from all parking spaces
    The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
    (LINK AS IN THE TEMPLATE)
    68 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.
    It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

    (LINK AS IN THE TEMPLATE)
    The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-
    (LINK AS IN THE TEMPLATE)

    As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
    (LINK AS IN THE TEMPLATE)

    ''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. However, if you…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 AS IN THE TEMPLATE)]

    ''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.''

    Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
    I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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.
    END
    • Coupon-mad
    • By Coupon-mad 14th Nov 17, 9:43 PM
    • 51,855 Posts
    • 65,486 Thanks
    Coupon-mad
    • #8
    • 14th Nov 17, 9:43 PM
    • #8
    • 14th Nov 17, 9:43 PM
    Looks fine on a skim read (as long as you are sure you've never said who was driving, as I didn't read every word!) except I would point out to POPLA in #1 if the PCN was received after day 14, and certainly I'd tell them that 9(2)f - the 'keeper liability' warning - is missing, which is a far more important clue as to a non-POFA PCN than the niceties of 7(2).

    As long as the driver isn't admitted - YOU WILL WIN. Smart are likely to give up within days!
    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.

    • Joity
    • By Joity 15th Nov 17, 8:04 PM
    • 9 Posts
    • 1 Thanks
    Joity
    • #9
    • 15th Nov 17, 8:04 PM
    • #9
    • 15th Nov 17, 8:04 PM
    Looks fine on a skim read (as long as you are sure you've never said who was driving, as I didn't read every word!) except I would point out to POPLA in #1 if the PCN was received after day 14, and certainly I'd tell them that 9(2)f - the 'keeper liability' warning - is missing, which is a far more important clue as to a non-POFA PCN than the niceties of 7(2).

    As long as the driver isn't admitted - YOU WILL WIN. Smart are likely to give up within days!
    Originally posted by Coupon-mad
    Thanks,
    Are the copies of the letters sent by Smart Parking need to be submitted to POPLA?
    • Redx
    • By Redx 15th Nov 17, 8:09 PM
    • 16,937 Posts
    • 21,072 Thanks
    Redx
    no , not unless they support your own evidence

    your popla appeal will be viewed by not so SMART who will either cancel or issue their own evidence pack (the pack contains their correspondence as well as maps and signs etc)
    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
    • Joity
    • By Joity 15th Nov 17, 9:00 PM
    • 9 Posts
    • 1 Thanks
    Joity
    Thanks all,

    Just going to go to POPLA and fill out the form etc and submit.... anything else I need to be aware of at all.
    • Coupon-mad
    • By Coupon-mad 15th Nov 17, 10:20 PM
    • 51,855 Posts
    • 65,486 Thanks
    Coupon-mad
    Just submit the POPLA appeal as a PDF under OTHER, as the NEWBIES thread post #3 says.

    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.

    • Joity
    • By Joity 6th Dec 17, 7:42 AM
    • 9 Posts
    • 1 Thanks
    Joity
    Hi All,

    Just wanted to share the below email with you all from POPLA.

    "Thank you for submitting your parking charge Appeal to POPLA.

    An Appeal has been opened with the reference 8*********.

    Smart Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

    Yours sincerely

    POPLA Team"

    Would just like to thank all the guys for the help provided.
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