Smart parking, overpaid my ticket but just not quite enough, still liable?

cactusmelba

Hi all,

I've drafted a response to send to POPLA, does this sound reasonable to you guys?

Hope you don't mind me pasting the whole letter in here, if this is bad form just tell me and I'll delete it..


Dear Sirs,


On 23/09/2015 I received a Parking charge Notice from Smart Parking alleging a parking offence on ********, and demanding a charge to be paid. My appeal to the Operator, Smart Parking was rejected on ********. I am the registered keeper of vehicle reg ******* and I contend that I am not liable for the alleged parking charge. As the registered keeper, but not the driver of the vehicle, I entered into no contract with Smart Parking at all. I was not driving this car, and I was not even in this city on that day.
I wish to appeal against the charge on the following grounds:

1. A non-compliant Parking Charge Notice – no keeper liability is established under POFA 2012.

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

3. Unreasonable and unfair terms.


1. A non-compliant Parking Charge Notice – no keeper liability is 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 Parking Charge Notice, dated 23 September, 2015 fails to comply with POFA2012 Schedule 4 on at least 3 specific points.

I have detailed these points below in a clear and concise manner.

Schedule 4, Paragraph 9(2)(b) states:
The 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 does not inform the keeper that the driver is required to pay a charge at all, rather vaguely it states that “A PCN is payable with respect to the vehicle registration ******* for the alleged breach of advertised terms and conditions”. It does not state from whom the charge is payable, (the driver).

Paragraph 9(2)(c) says that the notice must “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable"

It falls short on paragraph 9(2)(c) too, by not making clear the circumstances in which the requirement to pay them arose. There are no details about what ticket was purchased, how much was paid for the ticket, and when that ticket expired. The only details given are the photographs of my vehicle entering and exiting the car park, the registration number of the vehicle, and the date of the alleged contravention.

Paragraph 9(2)(e) says that the notice 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;”

A tentative invite to pass on the driver’s details is mentioned, but nowhere on the notice does it say that the operator does not know the name of the driver or the current address for service for the driver.

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

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

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 by the BPA in Oct 2014 paragraph 34.6 state that the charges must be ‘proportionate and commercially justifiable’.

Smart Parking’s charges are outrageously disproportionate and could easily be described as punitive. I have been made aware that the driver overpaid for the ticket originally as it should have been £2.40 but they paid £3.00. The charge for the next period of time was only £1.00 for the next fourteen hours of parking. If, as Smart Parking allege, the driver overstayed in the car park, this extra 60p should have covered the next 8.5 hours of parking.

A £100 charge for an alleged 17 minutes, when there is no evidence that the car had not actually vacated the car parking space on time at all, (see point #3), and the driver had overpaid on the original ticket by 60% of the next tariff is certainly disproportionate. It is nigh on impossible to see this punitive charge as being ‘proportionate and commercially justifiable’ as the BPA recommend.

3. Unreasonable and unfair terms

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.”

In no way can a £100 charge for an alleged 17 minutes be deemed reasonable, especially when the ticket was overpaid. Additionally there is no evidence of the car remaining parked for that period of time.

I have passed the PCN over to who I think was driving at the time and they have assured me that they were at the vehicle within the allotted time paid for by the ticket. I have no reason to disbelieve them, and Smart Parking has provided me with no evidence to show that my vehicle was parked for longer than it should have been. Bags, luggage, and children may have to be loaded into a vehicle, and other traffic may delay exiting the car park. The evidence supplied by Smart Parking shows the times of the vehicle entering and exiting the car park, not the times of actual parking. Entry and exit times, plus a period of time to read the signs, comply with payment, load up a vehicle and navigate, are not a part of the contract to park.

The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” Having examined the signage in the car park I see that it provides no indication of the period of time it allows and this is unreasonable, especially as Smart Parking rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time).

So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.

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, 18(a): unfair financial burdens, schedule 2, 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".

In conclusion, I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum, using a non-compliant Parking Charge Notice, where no loss has been caused by a car that had overpaid for a ticket and where no actual proof is given of staying in a car parking space for longer that it should.

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



Whaddya think guys?

Redx

it needs the following points as well, preferably as separate items

no contract with the landowner
poor signage (not compliant with the BPA CoP)
10 minute grace period not allowed
any NTK flaws under POFA2012
time on site is not parking time, the parking time was more than paid for

this recent example is linked in the newbies sticky thread, for PE , and not so Smart use a similar business model

https://forums.moneysavingexpert.com/discussion/comment/69350038#Comment_69350038

Coupon-mad

cactusmelba wrote: »

Whaddya think guys?

I am a gal, but I think stop thinking Smart Parking are sending 'bills', because they are no such thing (not a bill, not a fine) and they can't contact you if you take it to POPLA.

Please show us your next draft based on the link Redx gave you and don't rush this. When is your POPLA code valid until (28 days)? Mid November? If so, wait for the Barry Beavis v ParkingEye decision, come back with your new draft and do not submit it too soon.

cactusmelba

Thanks red x and coupon mad, i hate all this legalese bullpoop, it took me a couple of hours to put that first draft together..
Regarding the points you mentioned that I need to add:

No contract with landowner - I need to get my head around that one.
Poor signage - likewise, it's actually quite a clear sign, I'll upload a picture when I get chance.
10 minute grace period - I have mentioned in the first draft halfway down in section three that there's no mention on the signage about the bpa's recommendation to allow a reasonable time to exit the car park after the ticket had expired, do you think I should add the ten minutes thing in there?
NTK flaws under POFA2012 - tbh I thought I'd covered that...
And time on site is not time parked, I thought I'd covered that as well, d do you think they need more work?

I won't submit anything hastily, thanks for the advice. I'll get my head around a couple more points and post a second draft up here in a couple of days. Thanks again guys and gals, it's much appreciated.

Redx

my points were general points and I would have thought each should have its own section, not buried away in some other section, so more bullet points and more sections

as for no contract with landowner , they have to have a contract in order to claim for these invoices, it says so in the BPA CoP,

so you allege there is no contract with the landowner (because they have not proved it by showing you the document etc - proof of authority(. thereby you are insisting that an unredacted copy of this contract is entered as evidence with popla, not just their say so, not a witness statement , no falsifications, a cast iron agreement that the landowner has given them authority, otherwise anyone can rock up and say you owe them money, many popla appeals are won on lack of authority (as are court cases too)- its no locus standii

same on signage, I dont care if you think its a good sign , what I and popla should care about is , does the signage meet all the requirements of the BPA CoP, as in colours , font sizes , easy to read, clear and concise information, able to be read and agreed to on entry at the correct driving speed , you allege it fails the BPA CoP test, they have to prove it complies or they fail the appeal point

as for 10 minutes, this isnt a signage issue, its a BPA CoP issue whereby they need to give reasonable time to enter , park, read the signage , comply , park for the time maximum time stated (or less) and then be given time to exit the car park in a reasonable manner, this needs a separate section and bullet point despite being elsewhere too

not a gpeol needs a lot more work, plus check the Beavis outcome too

NTK flaws and POFA seem well covered as you say

the CoP rules are there to be followed, so you allege they werent and its their task to prove all the points raised are invalid, the reasons why, plus be seen to have complied at each and every stage

examples are easily found in hundreds of other pople appeals listed in this forum in other threads, so just plagiarise them

if you dont query it , neither will popla, if you do query it , so will popla

the PPC have to prove their case on each and every appeal point, one failure and you win, job done

cactusmelba

Thanks for the plain speaking Redx, I needed it putting in plain English!
That newbies thread is MASSIVE, and very difficult to comprehend when this may be the first time you've ever encountered something like this.. It really helped explaining those issues for me, cheers!
Clearly there's lots of work to go, I'll get to it....

Coupon-mad

If you read just post #1 of the NEWBIES thread when at first appeal stage, and only post #3 when at POPLA stage, is it easier?

Also most of us regulars look at the forum in old-view pale green (much easier to read).

cactusmelba

Howdy folks,

Can I add my fourth point for your perusal please? Deadline for PoPLA is looming so I'd better pull my finger out!

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. I have not been shown any such proof.

The 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 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 latest signed & dated (unredacted) contract with the landowner. 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 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.

Thanks for all this help, I'm working on my signage paragraph now!

Redx

in some cases these scumpanies sign their own witness statements

so this statement

and may well be signed by a non-landholder such as another agent

really needs to be say

and may well be signed by a non-landholder such as another agent or themselves

otherwise it looks good, and yes sort out a signage point too

cactusmelba

SCUMpanies!!!

lol!

Thanks mister Redx, I'm on it!!