SMART PARKING - Rejected my appeal

Hi

This is the first time I have used this forum so please excuse if I am not following the correct etiquette (I am a complete noob).

Having received a smart parking fine in my local Sainsburys (I was something like 3 minutes over the allowed time) I received a letter through the door asking for payment once I ignored the ticket after a few weeks.

Using the advice I found on this forum I responded with a number of arguments. They have now written me a new letter tearing my original argument to pieces. Does anyone have any advice please as whether they think I should just give up and pay or should I continue the fight. I do not want a bad credit rating over £60.00 or anything else that might cause me aggro in the future. Please see contents of the letter below, any advice would be greatly appreciated:

Having considered your appeal in detail we have decide to up hold the PCN as we believe it was correctly issued in accordance with the terms and conditions advertised with the area concerned.

As stated on the signs in the car park there is a maximum stay period. This is in place to prevent overstays. As your vehicle was parked in excess of this free time we have no option but to uphold the PCN.

I have noted your comments regarding the signage but can confirm this is adequate at Sainsbury's Milton Keyens and must point out that it is the responsibility of the driver to ensure that they have read the signs before leaving the vehicle in the car park.

As of the 1st October 2012, under the protection of freedom act, the registered keeper can be held liable for PCN's unleass they can provide the driver details. If the registered keeper can provide these details, Smart Parking shall amend their records and pursue accordingly, however if these details cannot be provided Smart Parking will exercise their right to enforce the PCN under keeper liability.

As per the terms of contract, if the vehicle parked without complying with the conditions of the contract, the driver agrees to park on the land at the cost of £60.00 by way of a parking charge notice being issued. Smart Parking Ltd seeks to enforce the contract, by seeking payment of the charge which the driver accepted as a term of the contract by parking and leaving their vehicle there. The contract cannot, now in effect be renegotiated although a discount period is offered as per the BPA code of practice. The parking Charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach, and would need smart parking as the operator, to prove that the parking charge was proportionate, and amounted to a genuine pre estimate of loss. The parking charge is a contractual term.

You also now have the right to appeal to an independant appeals service (POPLA). If you wish to make an appeal the forms are on their website.
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Replies

  • Dont worry about your credit rating, its irrelevent:

    http://forums.moneysavingexpert.com/showthread.php?t=4816822 contains all you need to know, read through it on how to win @ popla
    Proud to be a member of the Anti Enforcement Hobbyist Gang.:D:T
  • RedxRedx Forumite
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    I would ignore all their guff and insist on a popla code (unless they have issued a popla code already ? , check all your paperwork for a 10 digit verification code)

    if you word your popla appeal correctly and have a draft checked on here first you should win at popla

    see this thread here too http://forums.moneysavingexpert.com/showthread.php?t=4816822
    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
  • The_Slithy_ToveThe_Slithy_Tove Forumite
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    Hardly ripped to shreds...
    Carrlito wrote: »
    ...although a discount period is offered as per the BPA code of practice...
    If they're so keen on quoting the Code of Practice, how come they have omitted to abide by the bit requiring them to have a grace period (and 3 minutes would be well inside that)?
    Carrlito wrote: »
    As per the terms of contract, if the vehicle parked without complying with the conditions of the contract, the driver agrees to park on the land at the cost of £60.00 by way of a parking charge notice being issued.
    ...
    The parking Charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach, and would need smart parking as the operator, to prove that the parking charge was proportionate, and amounted to a genuine pre estimate of loss. The parking charge is a contractual term.
    As you can see, the underlined bits clearly contradict each other. Not complying with terms of contrct = a breach, so it most definitely IS damages (or actually an illegal penalty) for breach of so-called contract.

    This is easily won with the right arguments at POPLA, though you must make it clear their argument around it being a contractural term is nonsense.
  • DublindelDublindel Forumite
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    Grace period is not relevant as it has to be the first few minutes, not the last. Any charge made above the regular parking fee has to be justified as losses, who matter what they call it. I beat smart parking in less than 7 days to have it cancelled
  • Coupon-madCoupon-mad
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    As of the 1st October 2012, under the protection of freedom act, the registered keeper can be held liable for PCN's unless they can provide the driver details

    That's all very well for Smart to say but it's utterly meaningless since they DO NOT send POFA compliant NTK letters!

    Please read ''How to win at POPLA'' in post #3 of the linked NEWBIES FAQs sticky thread which I presume you've read earlier on, but not noticed that we always win at POPLA?

    'TEARING YOUR APPEAL TO SHREDS' INDEED! I THINK NOT!
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  • Thank you to everyone that has responded so far, I really appreciate it.

    Yes they did say in the last line of the letter I omitted from my original post give a 10 digit verification code for use with the Independent appeals service.

    I will spend some time reading through the threads suggested before I proceed any further and write might POPLA appeal.

    I may post it here first though so you can guys spot my mistakes!

    Thanks again:)
  • I have read through some of the threads and have put together my POPLA appeal (all plagarised from other users of course!), I think I kinda get the gist of it but just was hoping I could run it past you guys to see if there is anything I've missed?

    Any thoughts would be appreciated, thanks

    APPEAL RE: Smart Parking CHARGE xxxxxxxxxxx/xxxxxxxxxxxx, xxxxxxxxxx
    CAR PARK 12/12/xxxx, VEHICLE REG: xxxxxxxxxx

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

    I have appealed this PCN directly with Smart Parking who have unfortunately decided to uphold the charge.

    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


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


    3. UNLAWFUL PENALTY CHARGE


    4. UNREASONABLE


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

    6. Lack of photographic evidence and unreliable, unsynchronised and non-compliant parking sensors.
    .




    Please find below a more detailed explanation of each bullet point:

    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 (TE27100760) 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 (12/12/13) 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.

    6. Lack of photographic evidence and unreliable, unsynchronised, non-compliant parking sensors
    I call into question the reliability and compliance of the parking sensor system at evidence that they were working correctly on the day in question. I have also failed to receive any photographic evidence that supports the fact the car had in fact over stayed the supposed time limit.

    So I require the Operator to present records which prove:

    - the Manufacturers' stated % reliability of parking sensors used here.

    - the dates and times of when the sensors at this car park were checked, adjusted, calibrated, synchronised with the timer and generally maintained to ensure the accuracy of the dates and times in question.

    The Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    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
  • edited 2 February 2014 at 8:24PM
    Coupon-madCoupon-mad
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    edited 2 February 2014 at 8:24PM
    That's a good start - but some of the paragraphs have been written in a better way since that template version so read a few more threads or examples.

    Also if there was an original windscreen ticket then it's not paragraph 9 of Schedule 4 you should be quoting - it's paragraph 8 and I seem to recall a couple of threads recently citing paragraph 8. So was it a windscreen ticket?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
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  • edited 3 February 2014 at 1:28AM
    forgotmynameforgotmyname Forumite
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    edited 3 February 2014 at 1:28AM
    Carlito when did you appeal? I appealed on behalf of someone a few weeks back and heard nothing.
    I dont need an exact date. Just an idea. I appealed in the 1st week of January. Using the online process.

    What if i dont hear anything in the 35 days? I think they have 35 days to respond?

    Thanks

    PS. Maybe they are waiting to see if i post on here about it? :) Do they watch these boards?
    I would rather cost them money at POPLA.
    Censorship Reigns Supreme in Troll City...

  • RedxRedx Forumite
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    pointless worrying until something happens, sometimes they ignore appeals, sometimes they respond, sometimes they involve debt collectors and then you complain to the bpa and the dvla

    yes they tend to read these forums , some ppc,s do it daily , others maybe not

    whilst it may seem important to you, they dont give a monkeys ! its all part of the threat process , making owners squirm
    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
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