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  • FIRST POST
    • Themainey
    • By Themainey 3rd Jan 18, 7:24 PM
    • 4Posts
    • 1Thanks
    Themainey
    SmartParking ANPR
    • #1
    • 3rd Jan 18, 7:24 PM
    SmartParking ANPR 3rd Jan 18 at 7:24 PM
    Hi,

    I'm hoping I can get a bit of advice on a POPLA appeal I'm going to process. I've read the newbies thread and searched the forums but I can't quite find anything that matches my issue.

    I received a parking charge after overstaying in a retail car park by 26mins. This was recorded by ANPR and the notice to keeper seems to tick all the boxes.

    My appeal centres around 2 issues;

    1. The amount of time you can park depends on the schedule of two external venues unrelated in anyway to the car park. If a match is on at Old Trafford or an event at Lancashire Cricket Ground the allowed time changes from 3 hours to 1.5 hours. There is no way of knowing your allowed parking time without knowing external event schedules and relying on their accuracy.

    2. The time from leaving my parking space to leaving the car park was 35mins due to traffic flow issues since opening a new ALDI. In support of this I have about 40 tweets (including that day) of people complaining about the time it has taken to leave the car park. Secondly the retail outlet have acknowledged the issue and since employed "parking marshals" and have started working with the council to change the traffic light timings (I have tweets from the retail outlet/land owner confiring this).

    It feels to me like both of these points should render the parking charge void, but I'm not an expert and Smart just rejected my first appeal so am questioning my sanity

    I'm also wary of putting my foot in it by basing my appeal sound two points that feel unfair but actually have no legal basis for voiding the charge.

    Any help would be greatly appreciated.

    Thanks
Page 1
    • Redx
    • By Redx 3rd Jan 18, 7:34 PM
    • 17,209 Posts
    • 21,504 Thanks
    Redx
    • #2
    • 3rd Jan 18, 7:34 PM
    • #2
    • 3rd Jan 18, 7:34 PM
    I hope you did not reveal who was driving in the initial appeal ?

    if smart rejected the appeal they should have issued a popla code

    if so, use post #3 of the NEWBIES sticky thread to construct a standard popla appeal based on legal arguments

    poor and inadequate signage is one appeal point

    grace periods due to event congestion and inability to leave the site promptly will be another appeal point

    plus

    no landowner authority
    no contract
    any POFA2012 failures if appealed as keeper
    any NTK failures if appealed as keeper

    popla do not cater for mitigation, so legal arguments are used

    there are plenty of similar examples to yours , albeit they are for places like fistral beach and summertime traffic congestion , but grace periods still apply
    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
    • Themainey
    • By Themainey 4th Jan 18, 10:58 AM
    • 4 Posts
    • 1 Thanks
    Themainey
    • #3
    • 4th Jan 18, 10:58 AM
    • #3
    • 4th Jan 18, 10:58 AM
    Thanks for the advise Redx.

    I have the POPLA code and I've written a letter based on what you've said, the Newbie thread and an example I came across. Any comments or advice would be appreciated if you or anyone else has the time;


    Dear Sir/Madam,

    As the keeper of the above vehicle, I wish to appeal the parking charge notice Smart Parking Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:
    1. Insufficient grace period taking into account acknowledged congestion problems.

    2. The signs in the car park are not clear, poor and inadequate relying on information from other unrelated sources to fully comply.

    3. No evidence of Landowner Authority – the operator is put to strict proof of full compliance with the BPA Code of Practice.

    4. The driver was a genuine customer.


    1. No period of grace given for the driver to read the additional signs within the car park or depart the car park when there is congestion.

    This matter flows from an allegation of 'overstay' of 26 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the vehicle was parked or when then vehicle started to move again to leave the car park.
    The driver of the car at the time was captured by ANPR cameras driving in to the car park at 14:18 and driving out at 16:14 on the same date. They were unable to park immediately upon entering the car park due to congestion from other vehicles, but then upon deciding to leave the car park were impeded by congestion causing a 25-minute delay in passing the exit ANPR camera.
    The congestion was caused due to the opening of a new ALDI store at the site and no changes made to the infrastructure to support the increased demand.
    I have attached evidence of numerous customers caught in this congestion complaining to the owners of the land that Smart Parking Ltd are claiming to represent, each encountering and inordinate amount of time taken to depart the carpark and witnessing departure times far exceeding the 25 minutes delay encountered in this case.
    The owners of the land have also acknowledged the problem with time taken to depart the car park and have since acted to mitigate this by employing parking marshals to prevent gridlock and engaging with Manchester Council to change the traffic light flow. I have attached evidence to support this.

    The BPA Code of Practice (13.2) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

    Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:

    ‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

    “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

    “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

    In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

    During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

    “Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

    It is very clear from the evidence that Smart Parking Ltd have failed to uphold the minimum grace periods as set out in the BPA Code of Practice or taken into account the traffic flow problems that their car park has on a regular basis. Smart Parking Ltd’s evidence is not clear how long was spent prior to parking the car or when the car started to depart the carpark. I object to the unclear information in the PCN and I reserve the right to comment when PE finally show me the timings transparently.

    2. The signs in the car park are not clear, poor and inadequate relying on information from other unrelated sources to fully comply.

    It is submitted that the driver did not have a fair opportunity to read or fully understand any terms involving this charge, which is out of all proportion and
    In this instance, the allowed free parking time changes from 3 hours to 90 minutes dependent on the event schedule of Old Trafford football club. In order to know whether the driver has 3 hours or 90 minutes, the driver also needs to know the event schedule of an external venue, unrelated in any way to the retail car park. There are no signs in the car park advising of the event schedule, nor is there any information provided on how to find the event schedule. This makes it impossible for the driver to fully comply with the parking terms as not all necessary information is provided by Smart Parking Ltd. A key part

    I also do not believe this is argument is undone by the dissimilar 'ParkingEye Ltd vs. 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:

    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 not visible from every parking space. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with multiple “if this then that” conditions. 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, that these signs do not clearly mention the parking charge which is hidden in small print. 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.

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

    signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    “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:

    ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    “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.
    Secondly, 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, it is submitted 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 this 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, the operator is put 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, the operator is to show how the entrance and delimitations signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. It is submitted 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. I also request evidence of how a driver knows if they have 3 hours or 90 minutes based on the signage and information in the car park alone.

    3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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

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

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

    Paragraph 7 of the BPA CoP defines the mandatory requirements and the operator is put 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.

    4. The driver of the car was a genuine shopper who used the following stores at the White City site on the day;
    • ALDI
    • Marks & Spencer
    • Home Bargains
    • Iceland
    • Halford
    Evidence has been attached to show purchases were made at each of these stores on the day in question.
    Smart Parking Ltd themselves said in their appeal rejection letter;
    “This is in place to prevent overstays in the car park or abuse of the car park by non-customers which reduces the number of bays for genuine customers”
    The evidence attached proves that the driver of the vehicle was a genuine customer and therefore Smart Parking Ltd’s scope has not been breached.

    This case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

    Many Thanks
    • nosferatu1001
    • By nosferatu1001 4th Jan 18, 11:28 AM
    • 1,579 Posts
    • 1,734 Thanks
    nosferatu1001
    • #4
    • 4th Jan 18, 11:28 AM
    • #4
    • 4th Jan 18, 11:28 AM
    Was the driver identified? Yes or no. Simple question already asked. Simple answer, just one of those two words, and nothing more.
    • Themainey
    • By Themainey 4th Jan 18, 11:38 AM
    • 4 Posts
    • 1 Thanks
    Themainey
    • #5
    • 4th Jan 18, 11:38 AM
    • #5
    • 4th Jan 18, 11:38 AM
    Explicitly - No.

    BUT I'm not 100% certain my appeal wasn't written in a way that made it clear I was the driver. Foolishly I didn't keep a copy of my appeal submission.
    • Coupon-mad
    • By Coupon-mad 4th Jan 18, 10:02 PM
    • 52,924 Posts
    • 66,471 Thanks
    Coupon-mad
    • #6
    • 4th Jan 18, 10:02 PM
    • #6
    • 4th Jan 18, 10:02 PM
    But you can still throw the usual no keeper liability at it, why not?
    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.

    • Themainey
    • By Themainey 5th Jan 18, 9:27 AM
    • 4 Posts
    • 1 Thanks
    Themainey
    • #7
    • 5th Jan 18, 9:27 AM
    • #7
    • 5th Jan 18, 9:27 AM
    Just to clarify, does Smart Parking have to send me a Notice to Driver in order to remove the no keeper liability defence?

    I've just gone over POFA 2012 and my PCN and I think they breach sub-paragraph 9 clause 2e and 2f so I'll add these to the above.
    • Umkomaas
    • By Umkomaas 5th Jan 18, 10:22 AM
    • 16,399 Posts
    • 25,502 Thanks
    Umkomaas
    • #8
    • 5th Jan 18, 10:22 AM
    • #8
    • 5th Jan 18, 10:22 AM
    Just to clarify, does Smart Parking have to send me a Notice to Driver in order to remove the no keeper liability defence?
    A Notice to Driver is essentially a windscreen ticket. In an ANPR situation, a letter through the post is a Notice to Keeper as the company at that stage have no idea who the driver was and the NtK invites the keeper to pass on those details to the PPC - which of course you don’t do!
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Coupon-mad
    • By Coupon-mad 5th Jan 18, 10:20 PM
    • 52,924 Posts
    • 66,471 Thanks
    Coupon-mad
    • #9
    • 5th Jan 18, 10:20 PM
    • #9
    • 5th Jan 18, 10:20 PM
    Just to clarify, does Smart Parking have to send me a Notice to Driver in order to remove the no keeper liability defence?

    I've just gone over POFA 2012 and my PCN and I think they breach sub-paragraph 9 clause 2e and 2f so I'll add these to the above.
    Originally posted by Themainey
    Ermmmm, you are looking for a negative that's not there. In fact, Smart don't 'breach' the POFA.

    They make no attempt to use the POFA. They only issue non-POFA PCNs.

    As an aside, please contact WHICH? magazine using the easy link from this thread to tell them briefly of your plight. The more people who contact WHICH, the more likely they are to take up this unregulated scam industry as their next cause:

    http://forums.moneysavingexpert.com/showthread.php?t=5765579
    Last edited by Coupon-mad; 05-01-2018 at 11:31 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.

    • Good tie
    • By Good tie 6th Jan 18, 11:51 AM
    • 2 Posts
    • 0 Thanks
    Good tie
    Received a letter through door about a parking fine when car was in car park for 13 mins wanting £100 of me this was in Inverness. What happens now thanks
    • Ralph-y
    • By Ralph-y 6th Jan 18, 1:22 PM
    • 2,431 Posts
    • 2,980 Thanks
    Ralph-y
    you go to here

    http://forums.moneysavingexpert.com/forumdisplay.php?f=163

    click on the newbies thread to read up ... bits re Scotland


    then if still needed please start a new thread .... (you won't)

    oh and if you are using your phone to browse then a PC/laptop will help matters ...

    Ralph
    • Coupon-mad
    • By Coupon-mad 6th Jan 18, 1:44 PM
    • 52,924 Posts
    • 66,471 Thanks
    Coupon-mad
    Received a letter through door about a parking fine when car was in car park for 13 mins wanting £100 of me this was in Inverness. What happens now thanks
    Originally posted by Good tie
    Scotland is fully covered in the NEWBIES thread - take NO action but read the sticky thread.
    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.

    • Good tie
    • By Good tie 6th Jan 18, 4:14 PM
    • 2 Posts
    • 0 Thanks
    Good tie
    Received a letter through door about a parking fine when car was in car park for 13 mins wanting £100 of me this was in Inverness. What happens now thanks
    Originally posted by Good tie
    Thank you
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