Smart Parking, refused my appeal...

Nodding_Donkey

Do a search for 'smart asda popla' and you will find a few, maybe even one for your local store.

Edit: I just did that myself and found the OP's thread on the Parking forum.

Doh!

Kitty777

Nodding_Donkey wrote: »

Do a search for 'smart asda popla' and you will find a few, maybe even one for your local store.

Edit: I just did that myself and found the OP's thread on the Parking forum.

Doh!

I managed to find the template hiding somewhere!!
Can I use all the points? Some I don't quite understand such as
''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 the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. 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 paymentand the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists. ''

Although the initial letter does tell me the times i entered/left the carpark it doesn't tell me the length of the overstay...could I just tweak this?

Thanks!!

Nodding_Donkey

Yes but don't use just that, use the other magic points as well. GPEOL, signage, Locus.

Kitty777

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


Any advice?

Nodding_Donkey

You'd be better off posting this on your thread in the parking forum. More people will see it and comment there

Kitty777

I have asked for it to be moved there

Crabman

I've moved your thread over to the Parking Tickets sub-board

Coupon-mad

Needs merging with this one please Crabman!

https://forums.moneysavingexpert.com/discussion/5050815

So kitty you already have your answers, I posted you need to change the POFA part. That example quotes para 8 but you need para 9 and I asked you some questions. Please reply about the NTO!


Oh and DON'T POST the POPLA appeal 'recorded', why would you do that when you can obviously appeal online if you look at the POPLA website... this is so much easier than you are currently making it.

Hot_Bring

Strider590 wrote: »

You spent 2 hours in Asda?

Didn't think so....... Some supermarkets are being forced to stop this sort of thing under pressure from local councils, who are apparently losing revenue from their council run car parks.

My local Morrisons bowed to this pressure and put in ticket machines, refundable in store and no more than 2 hours parking. It was a right faff, so people stopped shopping there and went to Tesco instead.

You're mixing up privately owned car parks ( of which 99.999% of supermarket ones are ) with council ones.

Oh .... come to Brighton and see our two Asda's and you could easily spend two hours in them before even using their coffee shops.