Matalan Luton Parking Fine

chrishgt4

Hi,

I was visiting family in Luton this weekend and whilst passing I decided on the spur to call in at Matalan to get a couple of pairs of trousers.

Having been to other stores I wasn't aware that apparently some Matalans have paid parking (which is ridiculous anyway), so paid no attention as I parked up to the sign that does exist stating it is pay and display.

After 25 minutes in the store I left with 2 new pairs of trousers, and it wasn't until I arrived at my destination I realised there was a penalty notice on the windscreen way over the passenger side in the bottom corner.

I called in on the way back past and spoke to customer services who said there was nothing they could do and I should follow the instructions on the back.

I suspect I shouldn't have to pay it, but I don't know the protocol...

Anyone any ideas on how to proceed? It was issued by Smart Parking.

Thanks

Image of the ticket is at - goo.gl/JXEvoL

pogofish

First-up - this is not a fine!

So please disabuse yourself of that idea entirely and start educating yourself by reading the Newbies Sticky at the top of this forum carefully. This outlines the current situation and the various avenues for seeing them off. Although it looks like you have exhausted the complain to retailer rout already.

Post back here when you have the bones of a challenge/appeal together for more detailed help/advice.

Jim_AFCB

It is not a fine, or a penalty notice. Only a statutory body can issue those, not a private parking company.

Read the Newbies thread at the top of this forum and inform yourself of the various issues. You also need to wait for a Notice to Keeper which will come through the post. Do nothing until you receive that.

Edit: Pogofish you beat me to it

chrishgt4

pogofish wrote: »

First-up - this is not a fine!

So please disabuse yourself of that idea entirely and start educating yourself by reading the Newbies Sticky at the top of this forum carefully. This outlines the current situation and the various avenues for seeing them off. Although it looks like you have exhausted the complain to retailer rout already.

Post back here when you have the bones of a challenge/appeal together for more detailed help/advice.

Thanks guys!

So I actually did a forum search and found one that sounds pretty much identical to my case and it seems the advice is to wait until they sent a letter out to the registered keeper's address. At that point it was suggested that the letter they sent was in some way a deficient and they should raise a dispute asking for a POPLA reference. They did this and got it cancelled.

One thing though, is that I am not the registered keeper; it is my friend's car. Does this mean he has to appeal it?

Sorry if I'm asking questions that are searchable but I don't know what to start searching for. I looked at the newbie thread which gave a link to what looked like a helpful flowchart, but I got stuck at the point which says "was it issued by NCP or a small company such as..." and I don't know the answer to that.

It seems the advice is wait for the notice to keeper to arrive in the post and deal with it from there, but I don't know if I deal with it or my friend.

I found a letter on parking cowboys which looks pretty impressive. If I send that as a challenge should they cancel it? Also, on this thread he shows a letter he sent and they quit it straight out. Again I don't know if the fact I don't own the vehicle is a problem?

forums.moneysavingexpert.com/showthread.php?t=4573231

Redx

wait for the NTK, which goes to the RK (your friend) - in 29 to 56 days

that RK then sends the template letter in the NEWBIES sticky thread from here, smart will be sick of seeing it by now , lol

if they dont cancel , they will issue the RK (not you) with a popla code, the RK (not you) then puts in a popla appeal on the popla website , then wins at popla (if they get one from post #3 of the NEWBIES sticky thread and adapt it

you do nothing at all, unless you do all the work on behalf of the friend , seeing as you caused the fuss

its still all coming from the RK though, not you

chrishgt4

Redx wrote: »

wait for the NTK, which goes to the RK (your friend) - in 29 to 56 days

that RK then sends the template letter in the NEWBIES sticky thread from here, smart will be sick of seeing it by now , lol

if they dont cancel , they will issue the RK (not you) with a popla code, the RK (not you) then puts in a popla appeal on the popla website , then wins at popla (if they get one from post #3 of the NEWBIES sticky thread and adapt it

you do nothing at all, unless you do all the work on behalf of the friend , seeing as you caused the fuss

its still all coming from the RK though, not you

Haha thanks - I did think it should probably be on me to deal with it (though this guy does like this sort of thing so maybe I did him a favour?! lol)

One last question is that I've seen it suggested that you appeal in reply to the NTK and they may actually just cancel it there and then. But I've also seen it said that you should never admit who the driver actually was as they have less rights. Since my argument outside of the legal standpoint is that I actually bought stuff from the shop, does including this information (and scan of receipt) actually put me in a worse position? Should I just basically say the bare minimum and essentially just look to get the POPLA code, or is it sensible to try and get it cancelled straight up?

Thanks again

Redx

just because you were in the shop doesnt make you the driver

I could have been the driver and you could have been the passenger and the shopper

the shopper can demand a cancellation if matalan own the land, but if they dont own the land then its the landowner you need to speak to as they engaged the PPC

I think you are assuming matalan own the land, despite having no proof

they should know who they pay rent to if they dont own the land, but may well fob you off

so any retailer or landowner complaint would be from the shopper, not the driver, but then it means you have pre-empted the NTK and so POFA2012 may not apply

I would wait for the NTK for now and send the template in, any landowner complaint can be done at any time

too often we see impatient people drop themselves in it due to wanting to deal with it NOW ! , lol

chrishgt4

Ha, no I will definitely wait.

Thanks for the help all! :beer:

chrishgt4

Ok so the letter has finally arrived.

It says I can do an online challenge or a postal challenge and gives me the address.

I have seen a template letter on this website - http://www.parkingcowboys.co.uk/appeal-letter/ - is this a good one to use or is there a better one?

Any advice going forwards?

Thanks

Redx

use the one in the NEWBIES sticky thread (the thread you should have read ages ago)

chrishgt4

Hi,

So thanks for everyone's advice I've got a rejection letter back now with a POPLA code.

I've had a look round for a template letter to POPLA but, I guess because every case is individual and needs to be judged on its own merits, there doesn't seem to be a standard letter. Looking around though, I've found some examples and using a bit of copy/paste I've put the below together.

If anyone would mind casting a quick eye over it to see if it makes sense or if I've made any glaring errors or omissions I would be extremely appreciative! Also, should I include copies of the letters sent from Smart Parking, or leave those out?

Thanks

Name
Adreww
04/05/15

POPLA verification code 1234567890

Dear Sir/Madam

On 06 April 15 I received a Notice to Owner from Smart Parking reference AB12345678 alleging a parking offence on 28 Feb 15, and demanding a charge. My appeal to the Operator, Smart Parking was rejected in a letter dated 01 May 15. I am the registered keeper of vehicle reg AB12 ABC and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:

1. A non-compliant Notice to Owner (or keeper) – no keeper liability established under POFA2012.

2. The Charge is not a genuine pre-estimate of loss, nor is it proportionate or commercially justifiable iaw BPA guidelines.

3. The signage on site is inadequate or inappropriate and can have made no contract with the driver.

4. A lack of standing or authority from the landowner (the council) or the supermarket who use the car park for its customers.

5. Unreasonable and unfair terms.


1) Non compliant Notice to Keeper - no keeper liability established under POFA 2012.

As the owner, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the registered keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. The Notice to Keeper, titled Notice to Owner, dated 02 Apr 15 fails to comply with POFA2012 Schedule 4 on at least 6 specifics.

1. It fails to comply with Para 8(2)(a) of the Act.

Para 8(2)(a) states that a notice must:
“…specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”

The Notice does not state the period of parking, merely the time of the alleged contravention and charge issue.

2. It fails to comply with Para 8(2)(b) of the Act.

Para 8(2)(b) of the Act states that a notice must:
“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;”

The Notice merely states that a Parking Charge Notice was fixed to the vehicle, and remains outstanding. The Operator does not fulfil the requirement to inform the keeper that the driver is required to pay the charge, nor that the charge has not been paid in full.

3. It fails to comply with Par 8(2)(e) of the Act.

Paragraph 8(2)(e) of the Act states that a notice to keeper must:
“…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…”

The Notice does not, in a single document, state that the Operator does not know both the name of the driver and a current address for service for the driver and invited the owner to pay the charge or provide this specific driver information. These are clearly separate requirements which must be met separately. Though the Operator has fulfilled para 8(2)(e)(i) and hinted that the owner might provide "driver details", the operator has not fulfilled the other specifics of Para 8(2)(e). The Operator has failed to state that they do not know both the name of the driver and a current address for service for the driver and does not request that specific information. Nor does the Notice notify me to pass on the notice to the driver.

4. It fails to comply with Para 8(2)(g) of the Act.

Para 8(2)(g) states that a notice must:

“inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;”

The Operator’s Notice merely informs the owner that a previously extant discount period has expired. The owner was never informed of this discounted period and the notice makes it apparent that such discounted period that may have existed is not available to the keeper.

5. It fails to comply with Para 8(2)(f) Para 8(4)(b) and 8(6) of the Act.

Paragraph 8(2)(f) of the Act states that a notice to keeper must :
“…warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges … 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”

Paragraph 8(4)(b) of the Act states that the notice must:
“be given by….
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.”

Paragraph 8(6) of the Act states that:
“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 Operator’s Notice, dated 02 Apr 15, states that if “payment in full is not received within the next 28 days then the total amount outstanding will be passed to a debt recovery agency for collection”. Two working days from 02 Apr is 06 April, and 28 days from 06 Apr is 04 May. It goes on to state “to stop this possibility” the owner “should contact them before 30 Apr”. This is a serious infraction; assuming that the notice was posted on the signed date 02 Apr, then in accordance with Paras 8(2)(f), 8(4)(b) and 8(6) the appeal period of 28 days should begin on the day after the date the notice is given i.e. 07 Apr, and extends from up to and including 05 May. The Operator’s Notice misled and misinformed the owner by stating the wrong period for appeal and failed to comply with the Act; in fact of law the owner has in accordance with the Act a period of time up to and including the entirety of 05 May to contact the operator, not, as the operator asserts “before the 30 Apr”

Compounding this breach, the Operator does not state clearly, as required by Para 8(2)(f) that it has the right to recover from the keeper that amount as remains unpaid if (i) the amount had 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. It is clear that these are separate requirements which must each be met separately, the operator has not fulfilled the requirements of the Act in the regard.

6. It fails to comply with Para 8(7) of the Act.

Para 8(7) of the Act states that:
“When the notice is given it must be accompanied by any evidence prescribed under paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was fixed to the vehicle and detailed above” it provides no evidence at all with the Notice. Para 8(7) is clear; the Notice must include such evidence as required by Para 8(10). The burden of proof is upon the operator and I challenge the Operator to provide clear unequivocal evidence that Para 8(10) of the Act does not require their Notice to provide and include evidence as per Para 8(7).

The Notice to Keeper does not comply with the strict requirements of POFA2012 Schedule 4 and no keeper liability exists.

2) The Charge is not a genuine pre-estimate of loss, nor proportionate or commercially justifiable.

Smart Parking’s signs and written correspondence (Notice to Owner) states the charge is for 'breaching the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss.

The car park is provided “free” to all genuine customers of Matalan, Luton. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident. I also have copies of receipts from that day proving that the car was driven by a genuine customer.

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.

Smart Parking’s rejection of my appeal, as the vehicle owner, states that as of Oct 2014 a pre-estimate of loss is no longer required but that guidelines issued in Oct 2014 para 34.6 state that the charges must be proportionate and commercially justifiable. Smart Parking’s charges are outrageously disproportionate, indeed punitive in nature and intent. Moreover the charges are entirely unjustifiable from a commercial perspective, other than merely to charge as much money as they think they can get away with.

3) Inappropriate/lack of signage - no contract with driver

The alleged breach took place in a carpark Outside the Matalan store in Luton. Having subsequently visited the site, the main sign at the immediate vehicle entrance to the carpark is barely noticeable as drivers who, unable to stop at that point in the road, rightly strive to accord with legal and safe driving practice. Indeed the text is so small as to render the sign unreadable and unremarkable. The sign is impossible to read whilst entering the carpark and is insufficiently eyecatching to give one cause to revisit after parking. I believe Smart Parking have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers. In addition to this, it is not standard practice at Matalan stores to charge for parking and as such a driver would not be expecting to have to look out for signs regarding parking charges, particularly when the entry sign is positioned at a point where drivers are crossing a public pavement and therefore their attention would be expected to be on driving safely first and foremost.

As Smart Parking do not provide detail and/or evidence of the location the car was parked, it is impossible to determine for certain which signs may or may not have been passed by the driver. However, looking at the map of the layout of the signs it is entirely possible that a driver could walk from many car parking spaces without directly passing a sign. I require Smart Parking to prove beyond any doubt that there was a suitable sign, meeting the requirements of the law, within the clear line of sight of the driver on the driver’s walking route from the exact position of the parked car and the entrance that the driver used to the shop on that day.

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 of this vehicle can not have seen any clear, unambiguous sign; there was no consideration/acceptance and no contract agreed between the parties. In their rejection of my appeal, Smart Parking assert that I was the driver (when no such information has been passed to Smart Parking) that by merely entering the carpark “I “ agreed to the terms and conditions. This is an utter nonsense, requiring a driver, even one with full faculty and cognition, to have agreed to terms and conditions upon entry and before having become aware of signage or read and understood the terms and conditions.

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 (the local council do) 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, and indeed with Matalan, the users of the land. 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 outrageous 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.


5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unclear and ambiguous jargon laden signage, is far from 'transparent' or obvious to drivers.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

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.”

I contend it is wholly unreasonable to rely on unclear, obscure or poorly, even dangerously located, signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in an otherwise free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described.


In the light of all of the above, I therefore respectfully request that my appeal is upheld and the charge is dismissed.


Yours faithfully,



Name