Asda/Smart Parking POPLA draft.

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Leigh5t

1. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.

2. Smart parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.

3. Smart parking have failed to adhere to the BPA code of practice.

4. Unreliable, unsynchronised and non-compliant ANPR system.

5. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.






1. Unclear and non-compliant signage, forming no contract with drivers.

I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £70 in a carpark where they could have paid £1 had they seen the signs which they did not. It was not a genuine attempt to contract for unlimited parking in return for £70.

As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.



2. Contract with landowner - no locus standi

Smart parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Smart parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, unredacted contract, signed and dated with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PEA and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): nebula.wsimg.com/0ce354ec6697...&alloworigin=1

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above unless they are deceiving the taxman.



3. Failure to adhere to the BPA code of practice.

The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BCP Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"



4. ANPR ACCURACY


This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.


5. The charges are penalties.

According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"

£70 is clearly not proportionate to a stay in a car park in which the vehicle could have purchased a ticket for £1 Neither is it commercially justified because it would make no sense for Asda to not give customers time to spend money. If you could park for £1 then £70 is clearly a penalty. It is unconscionable and extravagent. The £70 is not a genuine pre estimate of loss as the loss of revenue being £1 is crystal clear nor is it a genuine offer to park for £70. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £70 cannot be so as the figures quoted include business costs. Parking Eye lost in court on this very point in Parking Eye v Cargius which distinguishes Beavis. In any event the driver did pay and the case is because the ticket blew over in the wind. I submit that the term which requires the ticket to be in the windscreen is unfair due to the lack of adhesive on the ticket which places the driver in a position whereby they have failed to meet the required term through no fault of their own. A clear unfair term which is unenforceable.

I require Smart parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Smart parking cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner imposes a parking fee for the area in question, there is only the limited loss to whoever it is due. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass. Parking Eye v Cargius distinguished Beavis in relation to paid parking. Beavis is also subject to appeal to the supreme court in any case.

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.

Leigh5t

I've read and re-read the newbie sticky, parking Cowboys site, successful poplas and draft appeals but I've got to say...... my mind is blown at the minute!
I feel like I can't see the wood for the trees.

Has anyone had chance to read my appeal?

If so I'd appreciate any feedback you may have please, good or bad.

Thanks again.

Leigh5t

Anybody?
If I've dropped a ball, could somebody please say?

Sorry to go on.
Thanks.

Umkomaas

Generally looks good.

1. I'd move the opening GPEOL appeal point to become your final point - you need to get a positive decision on the other points - GPEOL is no longer the silver bullet it once was.

2. Signage - do you have any photographs to strengthen your text. At my local Asda, the sign at the entrance (as you wizz by) is a standard sign from the car park with a raft of tiny font conditions. Even with my knowledge of the 'scene', try as I might as I drive in, I can make very little out, even slowing to try to read it. Is it the same at yours? Photos of same would be helpful to your appeal. This doesn't meet current BPA requirements for signage at the entrance to a car park.

3. The HMRC -v- VCS is old, it related to parking permits, it was appealed by VCS and the Court of Appeal overturned the original judgment in favour of HMRC. I don't think this really helps your case.

4. Put in the word 'contemporaneous' in front of 'unredacted contract'.

That's about it from me.

Ordinarily I'd have said you'd have had a 99% prospect of success with (the old) POPLA, but in the new hands of The Ombudsman Service Ltd, we have yet to see the outcome of any of their decisions.

Current recommendation is to post your appeal (don't forget free certificate of posting from your Post Office - don't just bung it in the box) to avoid the potential of any 'traps' built into their new website!

You'll be a bit of a trailblazer here, so good luck, and please do update us on how things progress.

One final point is that Smart are known to throw in their cards at the first sign of a robust defence, so it may not even need a formal assessment and adjudication. Wait and see, I guess.

HTH

Leigh5t

Thanks for your informative response.

Please see my edited draft in post #23

I have just checked Google maps and there isn't a sign at all at the entrance I used???. I'll pop there tomorrow and get a photo. I already have a photo of one of the signs next to the meter and the background is blue, as mentioned in my appeal, this may cause issues with colour blindness. Shall I leave this photo out in favour of the lack of signs at the entrance?

Your point number 3, do you recommend completely removing this section about hmrc?

What about the anpr section? I don't think they use cameras in this car park. Should I just leave it in anyway?

Thanks again.

Umkomaas

Use any and all photos you have to help your case. However, the point about blue background is not one I've ever seen hold sway at POPLA (old); they've tended to steer clear of any breaches of the BPA CoP. But as it won't harm your appeal, leave it in - something more for Smart to deal with, and one which might add to the pressure on them to throw in the towel.

Same applies to HMRC -v- VCS, it won't help, neither should it (with caveats about new POPLA) be detrimental.

I'd be amazed if Smart don't use ANPR at your Asda. It's their bread and butter modus op. The site would be totally unviable for them just with a man and notebook patrolling. Check carefully when you revisit.

Time now to stop trying to gild the lily, after your visit tomorrow, just get it away.

Leigh5t

Thank you to everyone involved, both directly on this thread and indirectly through the hundreds I have read, you are unsung heroes. :beer:

My appeal was allowed on the lack of evidence for landowner authority.

I will update this thread ASAP, with their evidence pack and my rebuttal, for future reference.

Thanks again :T
Leigh.

Coupon-mad

Congrats! Good to beat them isn't it.

Parasite firms exisiting merely to penalise people should never have been supported by the Supreme Court.

Leigh5t

Yes, It's fantastic to beat them!

Although, I was annoyed a little by some of the remarks made by the assessor.
She seems to have agreed with the parking company on most of my other points.
Signage is laughable and smarts evidence pack was.......well....... far from smart.
I was hoping for some breaches to throw back at asda!

Never the less, the appeal was allowed and I'm happy.

Thanks again.