Smart Parking Asda Fine....Help!

Kitty777

UPDATE

1- I have recieved a letter from them, saying they are considering my appeal and that the time limit etc is currently on hold.
2- I HAVE FOUND A RECEIPT! it isn't my actual shopping receipt, BUT it is a receipt from the kiosk counter when we saw something by the door and decided to get it....so at least it is something! and shows it only took me 3mins to leave the store, get in the car, pack the car and leave the car park So I have put that in a very safe place!

Coupon-mad

A receipt is irrelevant at POPLA stage. Why not take that receipt and personally complain to the Asda Store Manager only (not to a CS desk person).

Kitty777

I have heard nothing else from them :S

Coupon-mad

So? A PPC has over a month to get back to an appellant.

Kitty777

Coupon-mad wrote: »

So? A PPC has over a month to get back to an appellant.

I know, just updating my thread

Kitty777

They refused my appeal, and I am now sending my appeal to the POPLA.

My letter is as follows:

Dear POPLA,

I am the registered keeper and I wish to appeal a recent parking charge from Smart Parking. I submit the points below to show that I am not liable for the parking charge.

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so any overstay would result in no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put Smart Parking to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3) Lack of standing/authority from landowner
Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.

I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that an appeal form can be obtained from the POPLA website. However, I have subsequently discovered that it is the operater that provides the appeal form and not POPLA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} 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.
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Regards,
Kitty777 :P


Any advice?

ezerscrooge

Add this to you rGPEOL section..

_____________
[FONT=&quot]Accordingly, the parking charge must be a genuine pre-estimate of loss and I put Smart Parking to strict proof that their charge represents a genuine pre-estimate of loss. [/FONT][FONT=&quot][FONT=&quot]Smart Parking[/FONT] has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss in the form of documented, specific evidence applicable to this business park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business, for example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included in this pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge. [/FONT]
[FONT=&quot]
The BPA Code of Practice states:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“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.“[/FONT]
[FONT=&quot]and [/FONT]
[FONT=&quot]“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The British Parking Association Code of Practice uses the word 'MUST':[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]"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.''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]''In each case that I have seen from the higher courts, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''[/FONT]
________________
Replace your wording at section 4 to



[FONT=&quot]The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on two grounds:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot](a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at a particular time on the day in question.[/FONT]
[FONT=&quot](b) The Notice to Keeper does not identify the 'creditor'.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'.
[/FONT]


[FONT=&quot]Also the NTK misinforms the rights of the registered keeper to appeal, alleging that an appeal form can be obtained from the POPLA website. The statement made by Smart Parking is untrue and is clearly designed to delay and thwart the rights of the registered keeper.[/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]In this case keeper liability has been lost due as it fails to clarify neither what the contravention is, nor who the creditor is and so it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.[/FONT]

[FONT=&quot][/FONT][FONT=&quot]
[/FONT]

Kitty777

Oh gosh, wow thank you!!

Coupon-mad

And your NTK section needs to talk instead about paragraph 9 of the POFA Schedule 4, not para 8, as this wasn't a windscreen ticket. Basically Smart do not use a POFA compliant document at all, they even call it a Notice to Owner (not keeper) don't they? So you can just literally quote all of paragraph 9 of Schedule 4 and say that as well as omitting all the statutory words for keeper liability, the offending document also merits a complaint to the BPA because:

1) they have impersonated a Council term by calling the NTK a 'Notice to Owner'.

2) they have not made it clear that liability ONLY lies with the driver (in fact they have used words that suggest the keeper must pay, yet this is not a POFA compliant document so the keeper is NOT liable at all). Nowhere does this say liability lies with the driver.

3) They use the words 'summons or writ' (suggesting prosecution under criminal law) neither of which describes a small claim. And in any case, Smart parking never issue small claims so it's a wholly misleading threat.

4) The final 2 sentences refer to a 'formal appeal' and 'adjudication' which are both words which POPLA Lead Adjudicator has warned are not allowed as they are misleading.

Am I right, is your NTO like that - on every point? Like here (look at the pic):

http://forums.pepipoo.com/index.php?showtopic=93058&st=20&start=20

So does yours use the words that I have mentioned? You need to check and I can't assume it does because yours was a postal version and yet in the link, theirs was a NTO following a windscreen PCN. Could be different in wording?




P.S. you will win this hands down - hope you've realised?! Nowt to worry about here as long as you get it to POPLA online in good time!

Kitty777

@Coupon-mad: I just checked and not once does my letter mention notice to keeper...It simply states 'Parking Charge Notice'. They say that DVLA have confirmed that I am the registered keeper however...
Shall I just change my wording from RK to PCN?
Edit: my letter is the same as the most common one on google images...is that a notice to keeper?

I am worrying, but that is just me :P I worry about everything and anything.