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  • FIRST POST
    • Badfink
    • By Badfink 3rd Jan 18, 2:22 PM
    • 5Posts
    • 4Thanks
    Badfink
    Smart Parking - Astle Retail Park - incorrect VRM
    • #1
    • 3rd Jan 18, 2:22 PM
    Smart Parking - Astle Retail Park - incorrect VRM 3rd Jan 18 at 2:22 PM
    Hi all,

    My wife received a PCN from Smart Parking for not having paid the correct parking charge. In fact, a ticket for the whole duration (and then some) had actually been purchased, but the first two numbers of the plate were entered rather than the whole registration.

    After reading the Newbies thread, it now seems I was v v foolish to return an appeal to Smart on my wife's behalf with a photo of said ticket – a letter was received (this time addressed to myself) stating that Smart would be upholding the PCN as the VRM was entered incorrectly. At no point was it mentioned who was driving.

    The other cases I've seen suggest that I may be able to appeal on the following grounds, so I've lifted this from a relevant thread. I've chopped out all the points which immediately seem irrelevant to this case.

    The only questions that remain are whether we need to go back to the car park to get up to date photos of the tiny T&C small print and signage, and whether I am able to appeal as registered keeper, or whether that has to be the legal owner of the car?

    Draft appeal

    I am the registered keeper of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was rejected on 29th December 2017 and they provided the following POPLA code:

    I am appealing as the registered keeper. Whilst I was an occupant of the vehicle, the actual driver of the car has never been identified and this remains the burden of the parking operator.

    The basis of my appeal is on the following grounds:
    1) The signage not clear and legible
    2) Keeper liability
    3) The ANPR system is neither reliable nor accurate, Time on site is not parking time
    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


    1) The signs in this car park are not prominent, clear or legible from all parking spaces

    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:

    ATTACH IMAGE

    Image for my case

    ATTACH IMAGE

    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.

    The terms and conditions (Attached) do not state the parking charges let alone the sum payable for unauthorised parking. The BPS COP states:

    18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.
    18.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations.


    The signage before entering the car park states “purchase a parking ticket for the duration of your stay” which the registered keeper complied with. The sign on entry has no reference when the parking period begins (see attached – Image of entry sign).

    The POPLA annual report 2016 states:

    In an ANPR controlled car park where no statement on the signs indicates that the parking
    period begins on entry to the car park, as opposed to when a vehicle parks, we may discount the amount of time between entry and parking when calculating the grace period at the end
    of the contract. This is because the average motorist would assume that a period of parking
    begins when they park the vehicle, and not when they enter the car park.


    The signage for the terms and conditions has very small font and has over 630 words which is difficult to read and understand. Attached is an image with the terms located at Astle Retail car park.

    ATTACH IMAGE

    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.

    2) Keeper liability

    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 stipulates:

    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.

    3) ANPR system

    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 metadata. 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.).

    BPA COP 20.5 states:
    When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.

    4) Lack of standing/authority from landowner

    Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

    BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent).

    Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.

    I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for Smart Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator 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


    I appreciate you taking the above into account during your objective considered assessment.
Page 1
    • Fruitcake
    • By Fruitcake 3rd Jan 18, 3:21 PM
    • 40,746 Posts
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    Fruitcake
    • #2
    • 3rd Jan 18, 3:21 PM
    • #2
    • 3rd Jan 18, 3:21 PM
    Having skim read that, your appeal point 1 is far too short. You shoud use the whole of the long version from post 3 of the NEWBIES. Embed the images rather than include links as that way the assessor is forced to actually look at them.

    You definitely should take your own images of the site from entrance to the place where the car was parked, especially if it was possible that the route taken on the day in question may have resulted in the signs not being seen.
    You should also take pics of the signs especially if they are damaged, hidden behind bushes, high up on poles/walls, and written in small font.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Fruitcake
    • By Fruitcake 3rd Jan 18, 3:29 PM
    • 40,746 Posts
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    Fruitcake
    • #3
    • 3rd Jan 18, 3:29 PM
    • #3
    • 3rd Jan 18, 3:29 PM
    Point 2. You should quote the relevant parts of the POFA 2012 where the PPC have failed to follow it. So for example if Para 9 states that the operator must include certain information, you then quote each and every time the parts of the NTK that omit this.
    From memory I believe Not so Smart do not use POFA compliant NTKs.

    The first question is, did the NTK arrive within the correct timeframe, ie, by day 14, the date of the alleged event being day zero?
    Last edited by Fruitcake; 03-01-2018 at 3:39 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Fruitcake
    • By Fruitcake 3rd Jan 18, 3:32 PM
    • 40,746 Posts
    • 81,341 Thanks
    Fruitcake
    • #4
    • 3rd Jan 18, 3:32 PM
    • #4
    • 3rd Jan 18, 3:32 PM
    Point 3. Be careful with this. Can you extract the meta data from the images. This can then be compared with the alleged time stamp on the photo. If they differ, then you have your proof. If they match, then I wouldn't advise suggesting the image is doctored. ANPR inaccuracy is still a valid point though and again, a template can be found in post 3 of the NEWBIES.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • The Deep
    • By The Deep 3rd Jan 18, 4:29 PM
    • 7,669 Posts
    • 6,741 Thanks
    The Deep
    • #5
    • 3rd Jan 18, 4:29 PM
    • #5
    • 3rd Jan 18, 4:29 PM
    De minimus, the law does not concern itself with trifles. This looks like a trifle to me.

    It also looks like a penalty, read about unfair terms in consumer contracts.

    https://www.which.co.uk/consumer-rights/regulation/consumer-rights-act?gclid=EAIaIQobChMIze6lw5u82AIV6RXTCh05dAebEAAY ASAAEgJv0vD_BwE
    You never know how far you can go until you go too far.
    • Coupon-mad
    • By Coupon-mad 3rd Jan 18, 8:53 PM
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    Coupon-mad
    • #6
    • 3rd Jan 18, 8:53 PM
    • #6
    • 3rd Jan 18, 8:53 PM
    If your wife 'received' the postal PCN then surely she is the registered keeper, not you? So you can't now say that you are the actual 'rk' (unless I have got this wrong) because Smart got the rk's data from the DVLA.

    If you can genuinely say you are either the rk, or just the 'keeper' (i.e. the person who keeps this car) then if you were not driving, say near the start: 'I was not the driver'. I may have missed it but didn't see that stated.
    Last edited by Coupon-mad; 07-01-2018 at 10:56 PM.
    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.

    • Badfink
    • By Badfink 7th Jan 18, 10:40 PM
    • 5 Posts
    • 4 Thanks
    Badfink
    • #7
    • 7th Jan 18, 10:40 PM
    • #7
    • 7th Jan 18, 10:40 PM
    Firstly, thanks for all the input. It's super helpful. Sadly I got knocked out by norovirus so have spent the last few days Smart Parking on the toilet.

    Right, I've done some more reading, ripped out one of the points (ANPR camera reliability) which seemed tenuous, and reread the NTK. It doesn't look to me that their wording is by any means explicit enough to be POFA 2012 compliant re. keeper liability, so I've quoted the relevant passages from the BPA/POFA.

    In fact, would you chaps mind looking over the letter to check that my assumptions re. wording are correct if I upload an anonymised version?

    Also, thanks for the clarification re. the registered keeper, Coupon-Mad. Apologies if it seemed like a dim question.

    Anyway, attempt 2 attached below:

    I am the registered keeper of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was rejected on th December 2017 and they provided the following POPLA code:

    I am appealing as the registered keeper. Whilst I was an occupant of the vehicle, the actual driver of the car has never been identified and this remains the burden of the parking operator.

    The basis of my appeal is on the following grounds:
    1) The signage not clear and legible
    2) Keeper liability
    3) 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
    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


    1) The signs in this car park are not prominent, clear or legible from all parking spaces

    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.

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



    The signs in Astle Retail Park are shown below:



    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:



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


    ''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:


    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 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.


    2) Keeper liability

    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.

    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 stipulates:

    20.12 An effective ‘Notice to Keeper’ within the meaning of POFA 2012, must meet the requirements of Schedule 4 of the Act. In particular: • paragraphs 6 (1) (a) and 8 (2), if you have already given an effective Notice to Driver at the time of the parking event • paragraphs 6 (1) (b) and 9, if you have not given an effective Notice to Driver.

    The PCN from Smart Parking does not fully comply with the following sub-clauses of POFA 2012 Schedule 4 paragraph 9 as quoted below:

    9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
    (2)The notice must—
    (b)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;

    (f)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 PCN does not explicitly provide this information; so does not comply with the BPA code point 20.12.

    3) 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.''

    4) Lack of standing/authority from landowner

    Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

    BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent).

    Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.

    I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for Smart Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator 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

    I appreciate you taking the above into account during your objective considered assessment.
    • Coupon-mad
    • By Coupon-mad 7th Jan 18, 10:58 PM
    • 52,914 Posts
    • 66,449 Thanks
    Coupon-mad
    • #8
    • 7th Jan 18, 10:58 PM
    • #8
    • 7th Jan 18, 10:58 PM
    Yep that'll do nicely, and I am glad you removed the ANPR section (wasted words, never wins at POPLA).
    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.

    • Badfink
    • By Badfink 8th Jan 18, 12:03 PM
    • 5 Posts
    • 4 Thanks
    Badfink
    • #9
    • 8th Jan 18, 12:03 PM
    • #9
    • 8th Jan 18, 12:03 PM
    Thanks, Coupon-Mad. Appeal lodged. Let's see what happens now!
    • Badfink
    • By Badfink 8th Jan 18, 5:23 PM
    • 5 Posts
    • 4 Thanks
    Badfink
    They rolled over straight away. Appeal successful.

    Thanks for all your help, chaps and chapesses.
    • Coupon-mad
    • By Coupon-mad 8th Jan 18, 5:32 PM
    • 52,914 Posts
    • 66,449 Thanks
    Coupon-mad
    Wow that was darn quick, within 24 hours?!

    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.

    • Badfink
    • By Badfink 8th Jan 18, 8:22 PM
    • 5 Posts
    • 4 Thanks
    Badfink
    3 hours and 50 minutes precisely.
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