Help with a "pay by plate" PCN please

stretchquaker

Hello,

I've looked at lots of the helpful posts on the site but am still stcuk as to what I can do in the following case:

I parked at a store car park operated by Smart Parking and paid the correct fee (£1) for an hours parking. I had to enter the vehicle registration to get the ticket which I displayed in the appropriate place on the windscreen. I returned to the car and left 58 minutes later. Never gave it a second thought.

I then received a PCN for "overstayed paid time" The camera had my stay timed at 58 minutes too so I was baffled. Thinking this was a computer error I politely wrote back to them explaining that this was an error.

Smart Parking have today wrote back to me saying there was "no payment logged against my vehicle registration" and have given me a POPLA appeals number.

I know the forum has lots of posters who have slightly overstayed or have some mitigating factors but I can't find anything on what to do when I have paid the correct fee and left at the appropriate time.

Can you help? What should I do. I no longer have the windscreen parking ticket.

Thank you.

Redx

regardless of your "story" , all you can do is appeal to popla using the supplied number, so just follow the popla appeal process from the NEWBIES sticky thread , no different than anyone else

chances are the VRN was input incorrectly, but as you have failed to keep the payment ticket (keep them all for up to 6 years in future) , you cannot prove that you paid nor prove the VRN that was input into the machine

you allege that you paid but cannot prove it, they allege you didnt , so that side is stalemate , with them having evidence and you having none

popla dont allow mitigation anyway , so none of the above is relevant

appeal on the grounds of

NTK not POFA 2012 compliant
no contract
poor signage
not a gpeol
anpr calibration

tick all boxes except stolen

The_Deep

popla dont allow mitigation anyway , so none of the above is relevant

It is all relevant, this is not mitigation.

Redx

I have never seen a successful popla appeal based on the story in post #1

if they still had the payment ticket it would make an interesting single point appeal , ticking one box only , if the OP was "up for it"

as it stands, they have no written or contractual proof and anyone can (and do) say this even when they havent done so

smart would win the case at the moment if that was the appeal point to popla, even if it is true (which I believe it is)

as judge Rinder would say ," papers , show me the evidence"

therefore, I stand by what I said, the OP needs to use the other legal arguments , even if they add a note to say the charge was paid and the error is either an incorrect VRN entry or a machine failure (but again they have no proof whereas smart do)

Guys_Dad

Ok. Date of contravention and date on the Notice to Keeper - how many days between?

stretchquaker

Thanks everyone for the comments - Redx I can assure you that even though it might read as though it is a "story" it is really totally true! I do take your point though of course about proof and evidence.

Guys dad - the date of the contravention was 19th June and the notice to keeper was 29th June.

So, do I write a POPLA appeal on the grounds that are listed in Post#2?

Redx

without evidence, its a "story", that anyone can make up, although I did say I thought it was a true story, not that popla will care or give it any creedence as you cannot back it up with evidence, neither at popla nor in court

as the NTK arrived within 14 days, then yes draft a popla appeal similar to the many hundreds of others listed on here, using the bullet points I listed in post #2

use the forum search and find recently approved popla appeals that are similar to your scenario, majoring on the points I mentioned

you may add a point that the DRIVER (not ME , MYSELF or I) paid for a valid ticket and either the machines are faulty, or a misread ANPR picture or possibly an incorrect VRN was input into the machine ( the latter is the most likely explanation - ie:- user error )

the problem being that with you not retaining the contractual invoice (the payment ticket) nobody is any the wiser and smart are unlikely to cough up the explanation, so you may never know why its happened so you are left to argue other points of law instead

normally people would retain a ticket if a supermarket or argos or similar issued it, in case of problems or refunds or goods exchanges down the line, yet people throw away payment tickets for parking once the event is over, so feeding the sharks as the sharks know this and use it to their advantage

ps:- this person is going through a similar angst, due to not retaining the parking ticket contractual invoice from their machine in Newquay

https://forums.moneysavingexpert.com/discussion/5273210

its on 3 pages and you can see how they are trying to adapt a popla appeal to suit, but using out of date information and sometimes seem to drop the driver "in it" too

its all words, but the words need to be carefully chosen so base yours on theirs but maybe also wait until theirs is approved for submission too , then adapt it

The_Deep

I disagree with Redx, appeal on the facts. IF Popla refuse your appeal challenge the PPC to take you to court. I very much doubt if a judge would call you a liar.

Redx

I am not discounting the fact that the OP can use the defence in court and persuade a judge that their story is correct and there is no case to answer

if the OP wishes to take that route then sobeit

most people are not up for court, unlike yourself , who would be

we can only advise the OP of all the possibilities , so if we were to assume that there is no locus standii and smart dont provide the landowner contract then popla would throw the case out , similarly on the other legal challenges , in which case the receipt is a moot point

the OP will have to decide on which course of action they prefer , or if they wish to make a stand on the fact they paid for parking including saying so to a judge if it goes that far, once all the begging letters over the next 6 years have come and gone

if they are up for the single point popla appeal and same to a judge within the next 6 years, thats fine by me (assuming smart tried an MCOL)

we could advise everyone that it is their right to go to court and argue it in front of a judge, whatever the pcn is for , they all have that right, but we dont due to ADR

if this OP were to find the missing contractual receipt, then I totally agree with you , except I believe they should also be querying the contract, signage , machine reliability and other aspects too

so you could say the same argument for the thread I linked, because they say they paid the full parking charges too (but also have a missing receipt that would prove it)

people need to learn to keep the receipts for a year or two, same as they would for an argos purchase

stretchquaker

:beer:

Ok folks - good news! I received a POLA appeal reply today saying that Smart Parking have cancelled the PCN.

In case anyone is searching the forum for the specific car park I should add that it was for the one at Sports Direct in Darlington.

I will paste below what I wrote in my appeal (at least the version i think I submitted)

Genuine thanks to those above who responded. To make others feel better I consider myself to be reasonably articulate but it took me hours to go through the newbies thread as a newcomer to this subject. The processes were complicated, the terminology is awkward and the whole issue (and therefore the thread) is littered with acronyms. In the end my appeal was probably nowhere near perfect, but I cobbled together various bits from various sites and it has done the trick for which I'm thankful!

I still don't know on what grounds the PCN was cancelled as it wasn't outlined in the response letter.

Anyway, in the interests of sharing I'll paste my appeal below. Good luck to all those appealing unfair PCN's and well done to those patrolling the board to help out.

**********************

Dear Sir/Madam
Re POPLA Appeals Reference number xxxxx.
SMART Parking PCN xxxxxxxx


As previously communicated to the operator, the relevant parking charge was paid and a valid ticket was displayed for one hours parking.

I was the driver of the vehicle xxxxxx on 29th June 2015 .There was no breach of contract . I can confirm that I fully paid for the period of parking in accordance with the signage. This can be confirmed by a supporting independent witness statement if required. I can only assume that either the machinery is faulty or possibly an incorrect VRN was entered but in either case there is no loss caused to Smart Parking at all let at alone one that can justify a claim for £90-00. I demand Smart Parking produce evidence that payment was not made if they believe it was not .

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA!appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

I am also therefore challenging the parking charge notice dated 29/6/15 on the following grounds. Please respond to each individual point that I state.


The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".!

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.!

The large sum (£90) demanded amounts to a penalty and/or is not an accurate reflection of any loss suffered so it is not a reasonable charge. The monetary claim is disproportionate, punitive and unjustifiable in total. It may also be an unfair term and therefore in breach of Schedule 2 of the Consumer Contracts Regulations 1999. Please provide a breakdown of how your demanded charge is calculated so that I can consider further whether it amounts to a penalty.

As the required parking fee was paid there can have been no financial loss whatever to SMART Parking or to the land owner but if you believe it has please set out the details clearly in your response. If you believe I have committed a trespass please substantiate the consequential actual loss. There were, for example, unoccupied places available for others to park so my presence did not prevent the parking of other cars and their making of payments.

I saw no signage in the place where I parked or at the entrance to the area where I parked. The requirements are that clear signage must be erected at each entrance and additional signage installed throughout the area. Therefore I have not entered into a contract with you.

Having since re-visited the site and researched the rules I now understand why the signage was not clear to me at the time of my visit.

There is not clear signage at every entrance to the car park/ land stating the restrictions in force.
There are not sufficient additional signs placed around the area stating the restrictions that are in force.
SMART parking are using ANPR camera systems but this is not clearly advertised on the signage.
!

A copy of your contract with the land owner which authorises you to act on their behalf in the management of this car parking area.

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).!

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.!

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

I would also request that SMART Parking can provide me with the following evidence:

A copy of the contract which you allege I entered in to when I parked.
Photographic evidence of the actual signs in situ, together with identification of the locations around the site where these signs are currently placed. Please also confirm the date when the photographs were taken (if not evident from the photographs themselves) and whether you have made any alterations to the signage since the photograph was taken.
A copy of the full terms and conditions for use of the land where I was allegedly parked wrongly.
A copy of your certificate of membership of the BPA
A copy of your protocol which your enforcement and CCTV operators are required to follow.
A copy of your standard appeal procedure and confirm whether or not it complies with the Arbitration Act 1996.
Full details of the owner of the parking area (if it is not already stated in the copy contract above) as I wish to send them a copy of my letter to you.
A copy of all of the images that you have of my vehicle. I understand that the Data Protection Act entitles me to all of this information.
A copy of your protocol for handling personal data such as images of my vehicle. I assume that such data is not disclosed to any third party (other than POPLA in the event of an appeal) but please confirm this.

Smart Parking have produced two images of the vehicle entering and leaving the car park with supposedly accurate timings . Firstly I demand that Parking Eye produce independent verification that these timings are accurate and can be relied upon as evidence. Secondly the timings are irrelevant for the purposes of measuring the parking stay. They are taken at arbitrary positions at the entrance and exit of which the driver would be unaware. The supposed stay has taken no account of reading the terms and conditions , making payment , finding a parking bay and parking and then leaving the bay making it available for another vehicle and finally exiting and all of this in a busy car park . I put Parking Eye to strict proof that the vehicle was parked for longer than the time paid for because so far they have provided none whatsoever, and I deny that it was

!
Please provide this information within 35 days of receipt. If you are unable to provide any of the requested documents please provide a reason for each omission.
!
I look forward to hearing from you.
!
Yours faithfully,

ampersand

Very well done, sq. - want to add this to the popla decisions thread?
They all help:-)