POPLA appeal vs Smart Parking

Poppy5555

Hi,

My Smart Parking appeal was rejected so now I'm at the POPLA appeal stage..

This is my finalised (hopefully) letter to POPLA :

On xxxx I received a Notice to Owner from Smart Parking alleging a parking offence on xxxx, and demanding a charge to be paid. My appeal to the Operator, Smart Parking was rejected on xxxxx. I am the registered keeper of vehicle reg XXXXX 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. The Charge is not a genuine pre-estimate of loss, nor is it proportionate or commercially justifiable iaw BPA guidelines.

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

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.

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 ASDA, Newark. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident. Additionally Smart Parking’s 2 digital photographs of the car in situ demonstrate vacant spaces nearby, so no denial of revenue can be claimed.

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.

2) 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 23 Feb 15 fails to comply with POFA2012 Schedule 4 on at least 6 specifics.

- 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.

- 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 fulfill 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.

- 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.

- 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.

- 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 xxx, 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”. 28 days from 23 Feb is 22 Mar. It goes on to state “to stop this possibility” the owner “should contact them before 23 Mar”. The discrepancy within the notice is very confusing and in breach of the Act on those grounds alone. The breach of these Paras is compounded by a more serious infraction; assuming that the notice was posted on the signed date 23 Feb, 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 ie 26 Feb, and extends from up to and including 26 Mar. 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 26 Mar to contact the operator, not, as the operator asserts “before the 23 Mar”

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.

- 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. The Notice provides a link to its website where there are 2 digital photographs of the vehicle parked neatly in a bay. Beyond those photographs, which in no way demonstrate evidence that the vehicle is in breach of any terms or conditions, the Notice does not provide any evidence at all. 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.



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

The alleged breach took place in an underground or wholly covered carpark beneath the ASDA store in xxx. 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.

Smart Parking further claim the carpark to have 21 signs situated around the carpark; I have revisited the site on two occasions and can count only 14 dispersed throughout the carpark. Furthermore there is no evidence that any of those signs were positioned between the alleged contravening parked car and the pedestrian entrance to ASDA. It is highly unlikely that a driver even saw 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 ASDA, 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

How does this look?

Poppy5555

Can anyone help with this? Even just a yes or no as I've never appealed to POPLA before.
Thanks!

henrik777

You're destruction of their notice to keeper is excellent and i'd be happy with your appeal.

I believe the specify the period of parking could become the new stick to beat them with and is something i have included in an appeal elsewhere. Unfortunately it remains to be seen how popla or courts will react.

Woodchester v swain might assist on the specify point.

Poppy5555

Fab, thanks for your reply. Does it look good to send off to them? Would sending in hard copies of letters from SP, in addition to online submission of this letter help my appeal?

bluetoffee1878

Very well worded and researched POPLA appeal IMO.

Hope you come back and report your inevitable win.

Of particular interest will be which point the Assessor allows the appeal on.

Good luck (don't think you'll need luck though)

Poppy5555

Thanks bluetoffee, I'll submit tonight so fingers crossed..

Zero_Gravitas

One tiny detail of pedantry - you've numbered your point (1) as point (2) in your detailed explanation. i.e:


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


should read "1) The charge is not etc...

Hot_Bring

We have a winner ladies and gentlemen. Good, well written appeal. POPLA will stop at what will end up being point 1.

Dublindel

Good template for others

akaindie

Poppy5555, thank you for sharing your letter, I used as a template to fight my PCN from SMART parking in Darlington (Sports Direct). I'm pleased to say that once I submitted my appeal to POPLA it didn't even get as far as the adjudicator and SMART Parking cancelled the PCN within 2 weeks- I think they knew what a mess the PCN was.

Thanks again
Henry