Smart Parking Appeal

tinselfairy

Hi
Last month I received a PCN in the post for parking longer than permitted in an Asda carpark. I used the letter in the Newbies post (thank you!) to send in my initial appeal which was dismissed by Smart Parking.

I now need to do my POPLA appeal and have spent the last few hours trawling the thread for help. There was a post (by Turnip) which contained their appeal. Not all of it was relevant to my circumstances so I have chopped some of it out.

I would really welcome any advise on whether or not what is written below would be acceptable to send off.


Also regarding point 1 Smart Parking state in their reply to my appeal that as of October 2014 as pre-estimate loss is no longer required, so that's been confusing me. I'm easily confused though!



Thanks in advance.

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I am the keeper of this vehicle and this is my appeal.

On xx/xx/xx a Parking Charge Notice for being 'parked in excess of the permitted free period' was received. This charge has been contested directly with Smart Parking and rejected with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss.

2. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court.

3. Signage non-compliant with the BPA Code of Practice and no contract formed with driver.

4. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered.


The demand for a payment of £40 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.

Smart Parking must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so PPC have no cause of action to pursue this charge.


2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT

Smart Parking have no proprietary interest in the land concerned and have not provided a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Smart Parking do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Smart Parking are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Smart parking to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, 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.. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.


3. I submit that the signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Smart Parking are a mere agent and the poor placement of their signs means that they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Smart Parking have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

Smart Parking needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.


4. UNREASONABLE & UNFAIR CONTRACT TERMS - A PENALTY THAT CANNOT BE RECOVERED

The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

Redx

point 1) needs more work plus its own header to start with

did you click on the link in post #3 of the newbies thread and read the many examples there ?

circumstances are rarely relevant, although you should not put in details that are not true or different than your own

Coupon-mad

NTK not compliant - no keeper liability.

tinselfairy

Thank you to all who have posted before and offered advice. I heard from POPLA today and my appeal was upheld. It was upheld on point 2 in my letter, failure of Smart parking to produce a copy of the contract with the landowner.

Huge thanks once again.

ColliesCarer

Hi Tinselfairy,

Congratulations on your win :T.

You might like to add your success to the POPLA decisions thread.

It also helps others if when you add it you post up the assessors name and the wording of the result.