POPLA appeal advice. - smart parking

littlemissy29

Hi all - I hope someone has the time to have a read and give some advice on wether this is likely to be successful with POPLA - parked in a free asda car park, and overstayed the allotted 3 hour slot. Have written to smart parking and been told that the PCN would be upheld. ---

No special circumstances that I can recall- does anyone have any suggestions /amendments to the following please?!



Dear POPLA,
I am the registered keeper & this is my appeal:

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 busy, and there was 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 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.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

Did you say who was driving, in your first appeal? If not you have missed the obvious appeal point - the NTK is not a POFA version so Smart cannot invoke keeper liability. You are the keeper so they are stuffed. If you did say who was driving you've thrown that appeal point in the bin but will still win on no GPEOL!

Any POPLA appeal should criticise the signs, and any appeal about ANPR should criticise the ANPR system - as you will see from ALL 'ANPR camera' postal PCN examples linked in 'How to win at POPLA', in post #3 of the NEWBIES thread.

littlemissy29

Hi Coupon-mad. MANY thanks for your time to respond. I have not identified the driver to smart parking , so have taken your advice and drafted this appeal for POPLA. I've used several other appeals and out the, together for mine-
Any issues with this, do you feel, or is it fine to be sent to POPLA- thanks again for your time

LMA29.


Dear POPLA,
I am the registered keeper & this is my appeal:

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 busy, and there was 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. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, Smart Parking must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part:

“(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—
(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;
(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;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”

The NTK fails due to the following reasons:
The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.
(B) It does not 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) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'.
(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A 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 prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

3. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put Smart Parking to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibility. Smart Parking show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours, so I put Smart Parking to strict proof of actual parking for over two hours.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
Smart Parking fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

4) 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.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

Yep I have only skim read but that will beat Smart Parking who won't contest it IMHO.