Some help with POPLA appeal vs Smart Parking please

StrongWork

Hi all,

Have done gone through a lot of the stickies/links so hopefully not rehashing ground already covered. Have had a decent amount of advice over on Pepipoo but as ever it's important to get as much info as possible.

Had to sit an exam at one of those terrible Pearson Vue Centres. Unfortunately, owing to the location there was no available parking (typical) so resorted to parking at the ASDA 2 mins down the road.

I knew it was likely I'd have an issue as the maximum time allowed in ASDA was 3 hours, the same duration as the exam itself. By the time the pre/post exam bits malarkey were also conducted, it's no surprise I overstayed.

As such, in the post received a lovely letter from 'Smart Parking' informing me of a £70 charge, £40 if paid within 14 days. A few of my colleagues were also sitting the exam, parked in the same location and suffered the same fate. She is ignoring hers.

The first letter:


Second letter arrived stating that the discount period had expired, now £70 was due.


I lodged an online appeal stating:

Dear Sir/Madam,

I am writing as the registered keeper of vehicle XXXXXX to appeal the above ticket.

My challenge is based on the assertion that the sum you are seeking in relation to an overstay, in a free car park, bears absolutely no relation to any genuine pre-estimate of loss incurred by either you or the landowner.

In every case where a motorist has raised this issue, POPLA have accepted the appeal. You are therefore fully aware that there is no prospect of your charge being upheld. If you do reject the challenge and insist upon taking the matter further I must inform you that I may claim my expenses from you and my time. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.

Please cancel the ticket immediately. If you choose to reject this appeal then please send me a POPLA code so that I may take this up with the independent appeals service.

Yours faithfully,

StrongWork

I have now received a letter from Smart Parking rejecting my appeal (as expected) but including a POPLA code for appeal.




As such, I'm now at the stage of the POPLA appeal (which according to the calculator on the stickies needs to be doen by 9th Feb).

Looked through the model letters, I've picked out the bits which seem relevant and come up with this draft:

1. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

Smart Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Smart Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether Smart Parking have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

2. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss the car park was demonstrably not at full capacity capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Smart Parking lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £xx.xx for all day parking (will check out the on street parking charges later today). This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.

3. 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

4. UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

With regards to the example here: https://forums.moneysavingexpert.com/discussion/4739845 under unfair terms it talks about the 'unfair terms in consumer contracts regulations 1999'. Smart Parking state that the parking charge is a core term of the parking contract and falls outside of this. What do you guys think?

One of the Pepipoo members is of the opinion that their original letter is not POFA 2012 complaint (schedule 4 paragraph 9) and this is something to also include in the POPLA appeal.


I really would appreciate some help with this and any guidance will be graciously received.

Redx

looks reasonable but I will let others answer your detailed requests

suffice to mention one thing

YOUR COLLEAGUE SHOULD NOT BE IGNORING THE PCN THEY RECEIVED

they should have soft appealed it, then popla appealed it , same as you

only an idiot ignores these parking tickets in england and wales

make sure they know this

---

please

thanks

Coupon-mad

That POPLA appeal is fine - well done, you will win now! And the colleague should consider the registered keeper in her case, writing to give a different name and address for the driver so that 'the driver' can then be sent their own notice. Which they can then appeal and win like you are going to!

StrongWork

Coupon Mad, thank you for your positive words.

What is your opinion regarding the POFA situation? Something worth also including in the appeal?

Coupon-mad

Yep, Smart Parking don't issue their tickets under POFA2012 (you can tell from the missing wording) and so as keeper you can add a paragraph like this:

NOTICE TO KEEPER - NOT PROPERLY GIVEN UNDER POFA 2012
The Notice to Keeper (NTK) letter I received omits the required information if it were to establish 'keeper liability' under the POFA 2012. Smart Parking have omitted all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely:

''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—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

In this case, the NTK has not been correctly 'given' under POFA2012 and due to the many omissions, it is a nullity. As the driver has not been identified for this parking event, Smart Parking do not have the right party for their alleged 'contract/breach' since they have failed to establish keeper liability.

StrongWork

Coupon Mad, thank you again, very much appreciated.

Will update with the result.

StrongWork

Is it better to appeal online or via post?

I'm assuming I should enclose copies of the two PCNs and the appeal refusal letter?

Redx

StrongWork wrote: »

1) Is it better to appeal online or via post?

2) I'm assuming I should enclose copies of the two PCNs and the appeal refusal letter?

you can do either , or both if you prefer

I would include copies of all of those papers as evidence if you are using those points in your appeal, uploading the evidence online into your online appeal (you can send by snail mail if you like with free proof of posting at the PO)

the online appeal will receive an automated response from either popla or london councils (as popla) , that way you know its there

if you are close to your deadline date then do it online asap , followed by snail mail if you wish

ie:- do not post it and have it arrive late as they dont consider late appeals, whereas doing it online gets the quickest acknowledgement

so in simple terms your answers are

1) both (if you wish)

2) yes

StrongWork

^^Thanks! (and also to Coupon Mad)

I've finished the letter here it is:

Dear Sir/Madam,

I write in order to appeal a ‘Parking Charge Notice’ (PCN) from Smart Parking issued on 30th October 2013 (letter dated 6/11/13) for alleged “breach of advertised terms and conditions within ASDA store XXX” (letter enclosed).

I have appealed this PCN directly with Smart Parking who have unfortunately decided to uphold the charge (see letter enclosed).

I am now escalating this appeal to your organisation for careful consideration and objective assessment.

I dispute the PCN on the following grounds:

1. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

Smart Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their PCN (###) and in the rejection letters, Smart Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether Smart Parking have indeed provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I suggest that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of ‘Private Parking Charges’. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages, they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.


2. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is ‘free’. On the date of the claimed loss (30/10/13) the car park was not at full capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Smart Parking lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by £30 by ‘early payment’ that it is unreasonable to begin with.


3. UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss or 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .


The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


4. UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”


5. NOTICE TO KEEPER NOT COMPLIANT WITH THE PROTECTION OF FREEDOMS ACT 2012

The ‘Notice to Keeper’ (NTK) letter I received omits the required information if it were to establish 'keeper liability' under the Protection of Freedoms Act (POFA) POFA 2012. Smart Parking have omitted all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely:

''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—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

In this case, the NTK has not been correctly 'given' under POFA2012 and due to the many omissions, it is a nullity. As the driver has not been identified for this parking event, Smart Parking do not have the right party for their alleged 'contract/breach' since they have failed to establish keeper liability.

I appreciate you taking the above into account during your objective considered assessment.

Please do not hesitate to contact me should you require any further information or clarification

Redx

I would alter it and add the numbered bullet points before that main explanation of each point , like this template https://forums.moneysavingexpert.com/discussion/4816165

the idea is to get a quick glance at all 5 of your points, so the assessor can see what he is looking for easily, leading them down your garden path so they can easily find your winning point, whichever it is they are looking for

so between these 2 paragraphs

I dispute the PCN on the following grounds:

BULLET POINTS

1. CONTRACT WITH THE LANDOWNER

StrongWork

Good advice, that makes sense thank you.