SMART PARKING Charge Notice

Durham1966

Hi Redx and Coupon-Mad, Thanks for the guidance, I will read these pages and try to get as much info as possible.

Durham1966

Hi Stroma, Reference your message where you tell me that it is complete drivel, on their rejection. (16/11/13)

Could you be so kind as to expand on this as I am in the prossess of doing my POPLA appeal and I'd be interested in why you have said this. Thank you.

Durham1966

Hi, I have absorbed as much information as humanly possible and I have now drafted my POPLA Appeal, I know that it was mentioned by Coupon-Mad that it would need be fine tuned so here goes.

APPEAL RE: SMART PARKING CHARGExxxxxxxxxx at ASDA STORE, MIDDLESBROUGH, Free Car Park, on xx/xx/xx, Vehicle Reg xxxxxxx

I am the registeredKeeper of the above vehicle and I am appealing against above charge.I contend that I am not liable for the parking charge on thefollowing grounds and would ask that they are all considered.

1. Neither theparking company or their client has proved that they have planningconsent to charge motorists for any alleged contravention.

2.The parking company has no contract with the landowner that permitsthem to levy charges on motorists up to pursuit of these chargesthrough the courts.

3. The signage at the car park was notcompliant with the British Parking Association standards and therewas no valid contract between the parking company and the driver.


4.The amount demanded is not a Genuine Pre-estimate of loss


5, The medicalcondition of my wife who was a passenger in the vehicle..


6. None compliantN.T.K.


1. No right tocharge motorists for parking in their “free” car park.

Planningconsent is required for car parks and have conditions that grantpermission as the car park provides a service to the community. Tobring in time limits, and charges, planning consent is required forthis variation. I have no evidence that planning consent was obtainedfor this change and I put the parking company to strict proof toprovide evidence that there is planning consent to cover the currentparking conditions and chargeable regime in this car park.


2. No validcontract with landowner

It is widely known that somecontracts between landowner and parking company have ”authoritylimit clauses” that specify that parking companies are limitedin the extent to which they may pursue motorists. One example from acase in the appeal court is Parking Eye –v- Somerfield Stores(2012) where Somerfield attempted to end the contract withParking Eye as Parking Eye had exceeded the limit of action allowedunder their contract.
In view of this, and the British ParkingAssociation (BPA) Code of Practice section 7 that demands thatvalid contract with mandatory clauses specifying the extent of theparking company’s authority, I require the parking company toproduce a copy of the contract with the landowner that shows POPLAthat they do, indeed have such authority.

It has also beenwidely reported that some parking companies have provided “witnessstatements” instead of the relevant contract. There is no proofwhatsoever that the alleged signatory on behalf of the landowner hasever seen the relevant contract, or, indeed is even an employee ofthe landowner. I require, if such a witness statement is submitted,that it is accompanied by a letter, on landowner’s headednotepaper, and signed by a director or equivalent of the landowner,confirming that the signatory
is, indeed, authorised to act onbehalf of the landowner ,has read and the relevant terms of thecontract and is qualified to attest to the full limit of authority ofthe parking company

3. The signage atthe car park was not compliant with the BPA standards and thereforethere was no valid contract between the parking company and thedriver

Following receipt of the charge, I have personallyvisited the site in question. I believe the signs and any coreparking terms that the parking company are relying upon were too highand too small for any driver to see, read or understand when drivinginto this car park. The Operator needs to show evidence and signagemap/photos on this point - specifically showing the height of thesigns and where they are at the entrance, whether a driver still in acar can see and read them when deciding to drive in. Any termsdisplayed on the ticket machines or on a ticket itself, do not alterthe contract which must be shown in full at the entrance. I believethe signs failed to properly and clearly warn/inform the driver ofthe terms in this car park as they failed to comply with the BPA Codeof Practice appendix B. I require the operator to providephotographic evidence that proves otherwise.

Asa POPLA assessor has said previously in an adjudication
“Once anAppellant submits that the terms of parking were not displayedclearly enough, the onus is then on the Operator to demonstrate thatthe signs at the time and location in question were sufficientlyclear”.

Theparking company needs to prove that the driver actually saw, read andaccepted the terms, which means that I and the POPLA adjudicatorwould be led to believe that a conscious decision was made by thedriver to park in exchange for paying the extortionate fixed amountthe Operator is now demanding, rather than simply the nominal amountpresumably due in a machine on site.

The idea that any driverwould accept these terms knowingly is perverse and beyondcredibility.

4.The amount demanded is not a Genuine Pre-estimate of loss
FirstlyI would like to stress that this is a “Free Car Park” and thesigns state that “Please be aware that vehicles failing to displaya valid blue badge MAY be subject to a £70 Parking charge Notice”. If the Fake Parking charge Notice had been attached to windscreenwhen my wife returned to the vehicle she would have explained to theAsda store manager about her medical problems.
The wording on thesigns appears to indicate that the parking charge represents damagesfor a breach of the parking contract - liquidated damages, in otherwords compensation agreed in advance. Accordingly, the charge must bea genuine pre-estimate of loss. The estimate must be based upon lossflowiing from a breach of the parking terms. This might be, forexample, loss of parking revenue or even loss of retail revenue at ashopping centre.

The parking company submitted that thecharge is a genuine pre-estimate of the losses incurred in managingthe parking location.
The entirety of the parking charge must be agenuine pre-estimate of loss in order to be enforceable. I requirethe parking company to submit a breakdown of how these costs arecalculated. All of these costs must represent a loss resulting fromthe alleged breach.

For example, were no breach to haveoccurred then the cost of parking enforcement (for example, erectingsignage, wages, uniforms, office costs) would still have been thesame and, therefore, may not be included.

It would, therefore,follow that these charges were punitive, have an element of profitincluded and are not allowed to be imposed by parking companies.
5. Medicalcondition of Mrs Bell. Who was a passenger in the vehicle.

Firstly she is nearly 70 years of age and suffers from severalmedical problems which are as follows :-

A) ARRHYTHMIA, this is a heart condition which gives youBreathlessness, Dizziness, Light-headedness, and sudden bouts ofweakness. All of which she has suffered over the last 3 years, inthat time she has been hospitalised on three separate occassions withheart attacks and has had a Stent fitted, she is taking Warfarin toprevent any further blood clots. She is at present awaiting blood results toassess her for a Pace Maker.

ANGINA

C) HIGH BLOOD PRESSURE

D) HIGH CHOLESTEROL

E) HYPOTHYROIDISM

F) DIABETES

G) OSTEOPOROSIS

H) ARTHRITIS

She is taking medication for all of the above conditions, as shown inthe attached copies of the recent prescriptions.

She does not have a Blue Badge however she does consider herself adisabled under The Equality Act 2010, which goes on to say “if youhave a physical or mental impairment that has a substantial and longterm negative effect on your ability to do normal daily activities” It defines “Substantial” as more than minor or trivial and “LongTerm” as 12 months or more. Therefore she definitely considersherself as disabled.

She accepts that the reason why the vehicle was parked there, wasbecause she was not feeling well, she was light headed and weak andas you can see by her bank statement she was only in
Store for a few minutes, spending just£24.58p. She says that the Blue Badge area of the car park waspracticaly empty and the vehicle was only parked for 10 minutes.

6.NOTICE TO KEEPER

The Notice to Keeper is not correct :-

a) It is headed NOTICE TO OWNER-DO NOTIGNORE

b) It does not inform the keeper thatthe driver is required to pay the parking charge it only states.....

“if you (The OWNER) do not make thepayment in full within the next 14days the total amount outstandingwill be passed to a debt recovery agent for collection. This mayresult in a summons or writ being raised for recovery. Sch 4, Para 8(b)

c)It does not inform the keeper (The OWNER) that if he was not the driver of the vehicle to inform the creditor of the name of the driver and address and pass the notice to the driver. Sch 4, Par 8 (e) It does not describe the circumstances in which the requirement arose, it only says “This parking charge has been issued for the reasons EXPLAINED OVERLEAF, therefore giving reasonable cause for Smart Parking Ltd to apply to the DVLA for the details of the registered keeper”; the only Parking Charge Details printed overleaf are Vehicle Reg No; Time and Date; and Location (Asda Car Park).: there is no EXPLANATION of how or why the Parking charge notice was issued. Con to Sch 4, Para 6 (1) (b)

1. I believe that the above makes the Notice To Keeper invalid and the conditions set out in Shedule 4, paragraphs 6,7,8 and 9 have not been complied with. Failure to comply with paragraph 6 means that the Reg.Keeper cannot be held to account for the alleged debt of the driver.
2. This concludes my reasons for appealing the charge

martmonk

I'll let others comment on the appeal but;

I know you say you contacted the store but it was by letter and easy to ignore.

I'd be all over Asda like a cheap suit;

"in Store for a few minutes, spending just £24.58p." (I'd remove the 'just')

Start with a call to the manager of the store then ramp it up with complaints on Facebook, head office and twitter.

In fact I'm gonn post on twitter now with a link here.

Coupon-mad

Don't name the passenger. It doesn't help and only suggests who was driving.

Totally agree the first thing would be to complain to Asda. I would go in person like the dozen or so people on this forum have done recently, who all feature in the 'Successful complaints about PPCs' sticky thread re Smart parking at Asda...(post #2 in that sticky thread). Easily overturned; Store Managers cancel heaps of these every week.