'Smart Parking' PCN at Fosse Park, Leicester

kirkbyinfurnesslad_2

just stick to the things that win rather then getting side tracked

Alistair91

Yeah OK, I've got a good Idea of what to write to them now. Unfortunately I won't be able to do it until Wednesday when I'm back home as the computers here at work don't allow access to the Smart Parking website or the Pepipoo forum. Cheers for the help so far!

Coupon-mad

Actually in my friend's appeal I did also throw in 'impersonation of a Council term' = 'Notice to Owner' as well!

Alistair91

So I sent my appeal to Smart Parking last week and I will post it here so people can hopefully use bits to help them with thier appeal.


Dear Sir/Madam

As the registered keeper, I wish to appeal the parking charge notice number: xxxxxxxxx at Fosse park shopping centre, Leicester based on the following grounds:

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF COST
The parking charge of £70.00 is punitive and unreasonable. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge. The parking charge must be a genuine pre-estimate of loss in line with the British Parking Association Ltd. Code of Practice that states:


“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.


19.6 If you’re parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by the Office of Fair Trading.”

The amount of the “penalty” imposed is highly disproportionate to any alleged “loss” by Smart Parking, and is therefore punitive, contravening the Unfair Contract Terms Act 1997. For this charge to be justified a full breakdown of the costs Smart Parking has suffered as a result of the car being parked at the car park is required and I would expect this to add up to £70. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

It was found in the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) that general business costs cannot constitute a loss and also has been held to be the case in a number of very recent compelling and comparable decisions when similar cases have been considered by POPLA


CONTRACT WITH LANDOWNER – NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCEMENT CHARGES
Smart Parking have not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver.
Accordingly, I require Smart Parking to provide a copy of the contract in force that gives them authority to form contracts with drivers and pursue charges in their own name as creditor in the courts, as required by section 7 of the British Parking Association.

UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty.



UNCLEAR SIGNAGE SO NO CONTRACT AGREED UPON
The signage around the car park is not compliant to the BPA Code of Practice. The signage is unclear and therefore the keeper did not see it and so there was no contract formed whatsoever to pay any alleged charge.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the UTCCR 1999, the CPUTR 2008, PoFA 2012 and basic contract law.

It is respectfully requested that you cancel the parking charge or issue a POPLA code.


Yours,
The registered keeper of the vehicle in receipt of parking charge notice number xxxxxxxxxxxx





Dear xxxxxxxx
Parking Charge Notice Number : xxxxxxxxxx

Thank you for your recent communication.

I have noted the points you raised and would like to confirm that we are cancelling the Parking Charge Notice.

If I can be of any further assistance please do not hesitate to contact me.


Yours sincerely,

Smart Parking Ltd



:beer: I used several peoples successful POPLA appeals as a draft when doing the appeal so cheers to them and especially Coupon-Mad who must cost the PPC's thousands every year :j


The appeal was much stronger than needed as I wanted to avoid the hassle of going through POPLA etc. and preferred to have it cancelled ASAP.

Umkomaas

Great result Alistair91.

At least we have one PPC who recognises their game is over with this particular PCN, has thrown in the towel and has just saved themselves £27.

A win-win situation.

ParkingEye - take note of how a seemingly much more sensible PPC deals with the inevitable!