parking fine

kojak64

Hi folks newbie needing help. On 9/6/14 PCN from smart parking stuck on Wscreen @ Asda paid for 3hrs stayed 3.30hrs. Have read a number of threads & popla appeals just wanted your opinion whether appeal below is suitable for me, except D Asda is P&D not free parking so just alter accordingly?

It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘By remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
The Appellant does not dispute that the terms of parking were clearly displayed, or that his vehicle remained at the car park for longer than permitted.
It is the Appellant’s case that:
a) According to the case of VCS v HMRC, the parking charge is unenforceable as the Operator does not have sufficient proprietary interest or occupation over the land in question.
b) There is no contract between the parties as no goods or services were supplied in return for payment.
c) The parking charge notice, an invoice, did not give the appropriate details regarding the payment of VAT in relation to the charge.
d) The parking charge does not reflect the loss caused by the Appellant overstaying the maximum permitted period in a free car park.
e) The parking charge is a penalty and so not enforceable.
The Appellant has submitted that the parking charge does not represent the loss suffered, and so, as a penalty, is not enforceable.
The signage produced states that a parking charge notice would be issued for a “failure to comply” with the terms of parking. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The Operator has submitted that its charges have been held not to be penalties, and to be enforceable, in previous cases; however, the Operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre-estimate of the loss caused in every car park.
The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence in order to tip the balance in its favour.
In this case the Operator has not provided any evidence as to why this charge in a genuine pre-estimate of loss. I am not minded to accept that it is sufficient to simply list the names of previous cases without applying them to this case.
Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.
Accordingly, I allow the appeal.
I need not decide any other issues.

Chris Adamson
Assessor

On soft appeal should I send appeal template by Coupon-mad from Newbies FAQs & see if smart parking capitulate or just ask them to let me off & get rejection & appeal at popla? Thanks in advance for help

Guys_Dad

This is the POPLA adjudicator's decision that you have posted, not an appeal either to the PPC or POPLA..

You just can't cut and paste anything without understanding what you have written. You need to read the Newbies thread and follow that advice, including about WHEN to appeal.

Dee140157

You are a little confused here. You have used one of the successful POPLA appeals which whilst having the winning point in, is not the starting point of the process.
Start as you have seen in The Newbie thread with the soft appeal to the PPC.
When this gets rejected find the most similar POPLA appeal in the newbie thread and use that. If you search the forum for Asda and not so Smart, you will find lots of threads to help you too.

Coupon-mad

You've been looking at POPLA decisions by the Assessors whereas if you were looking ahead at POPLA appeals they would look different and are as shown in post #3 of the NEWBIES thread, on a link there. But I don't expect you will need POPLA at all.

Smart almost always just cancel when they get sent the appeal template from the NEWBIES thread. Submit it online and remove the bits including and below 'take formal note' on the template, so it fits in the appeal word-count box.

kojak64

Thanks for your replies, have been reading thru various posts on this subject & recently emailed Andy Clarke CEO of Asda asking for pcn to be cancelled (loyal customer of asda, shopping in asda on day of pcn, angry with response of duty manager told me they couldn`t help,etc) Reply from their directorate; sorry to hear of my pcn but car park places need to be managed for other users you can appeal to popla. Thanks for nothing Andy Clarke!!
Re time scales for appeal if ive got it right PPC has 28 days to send NTD to which I dont reply then wait for NTK which should arrive in next 28 days to which I do soft appeal (made within 56 days of original pcn to smart parking) ask for popla code as SP unlikely to grant appeal. Have plagiarised following from the forum as my popla appeal:

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

I had paid & displayed on the date of pcn. On the date of the claimed loss 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 £25 for ‘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 this 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.

Are the arguments in point 3 valid for pay & display as the author parked in asda free parking for an hour?

kojak64

Thanks for your replies, have been reading thru various posts on this subject & recently emailed Andy Clarke CEO of Asda asking for pcn to be cancelled (loyal customer of asda, shopping in asda on day of pcn, angry with response of duty manager told me they couldn`t help,etc) Reply from their directorate; sorry to hear of my pcn but car park places need to be managed for other users you can appeal to popla. Thanks for nothing Andy Clarke!!
Re time scales for appeal if ive got it right PPC has 28 days to send NTD to which I dont reply then wait for NTK which should arrive in next 28 days to which I do soft appeal (made within 56 days of original pcn to smart parking) ask for popla code as SP unlikely to grant appeal. Have plagiarised following from the forum as my popla appeal:

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

I had paid & displayed on the date of pcn. On the date of the claimed loss 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 £25 for ‘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 this 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.

Are the arguments in point 3 valid for pay & display as the author parked in asda free parking for an hour?

Dee140157

You are getting confused here.

First this should be on original thread it gets confusing when you have 2.

You will not get a NTD. You had a windscreen ticket. If you do. Not respond (and don't), you will get an NTK.

You respond to this by using the soft appeal in post 1 of Newbie thread.

When/if that gets rejected, then you appeal to POPLA. It is only at that point you need to use these words.

So don't get ahead of yourself. Smart often cancel at first appeal, which Coupon-Mad told you on your first thread.

I have asked Crabman to merge.

kojak64

Thank you Dee 140157 much appreciated, sorry its not on original thread a bit of a novice were IT is concerned! i`m afraid in my panic i have opened yet another thread... please be patient just a little wound up with getting this sorted. Sorry if it seems i am unclear in the process but do understand that i ignore NTD & respond only to NTK & then only appeal to popla if smart reject my appeal thus forcing me there, once again thank you for your reply

Coupon-mad

On 9/6/14 PCN from smart parking stuck on Wscreen @ Asda

That was your Notice to Driver, you just ignore that one and wait for them to send their non-compliant Notice to Keeper next month (the first postal letter). This is easy, they'll cancel when they see the NEWBIES template first appeal and if they don't they have no chance of winning because Smart do not use a POFA 2012 wording on their NTK letters. Point that out to POPLA, as the keeper (not driver) and you win. All done online to Smart and then to POPLA, won't even cost you the price of a stamp!

kojak64

Ah, got it, thought they would send NTD letter by post followed by NTK also in post, of course pcn on wscreen is the NTD!!(been a bit obtuse there) thanks again coupon-mad.