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

cactusmelba

Just a quick question, do I embed photographic evidence in the text of the appeal (word document), or attach it as a jpeg somewhere?

I've taken a photo of the signage (which is very good actually, and does follow MOST of the BPA's guidelines) compared to the "TARRIF" (sic) printed on the actual ticket machine which doesn't outline the hours included in the "ALL DAY" ticket. Confusing for the driver..

Umkomaas

I presume you're going to send your appeal as an attached file rather than work it into the POPLA portal appeal box? If so, here's no prescribed do's or don't with this as far as I'm aware, either should do. Look at which gives the best digital representation, then use that.

cactusmelba

Thanks Umkomaas, I'll embed it directly under the text.

Here's a work in progress regarding the signage. To be fair, the signage is very good and seems to meet MOST of the BPA guidelines.

5. Poor signage (non-compliance to BPA CoP)



Although some of the signs are fairly clear, they are in direct contrast to the misspelt ambiguous sign on the actual ticket machine. The ticket machine, the actual point at which payment is made, the ONE sign that EVERY driver will HAVE to see as they pay for their ticket, clearly states “Tarrif – ALL DAY - £2.40”. It does not state which hours of the day “all day” apply to, arguably, all day could easily be presumed to be a 24 hour period. Surely the sign that will be MOST visible to everybody will be the one on the actual ticket machine. If this particular notice is unclear, ambiguous and misleading then it seems to be a deliberate attempt by Smart Parking to muddy the waters and cause mistakes to be made.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used.

Smart Parking has failed to clearly inform drivers on the signage about how the data will be used and stored.

I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance.

The signage contains no mention of a grace period for loading/unloading, navigating into and out of the car park. Although this is not a legality, the whole process is based on ANPR cameras which only record entrance and exit times, not actual parking time. The signage does mention a ten minute grace period if the driver does not agree to the terms and conditions, but, rather unfairly I think, not mention that any grace period is allowed for loading up a vehicle and exiting the car park.

Coupon-mad

[STRIKE]Although some of the signs are fairly clear, they are in direct contrast to the [/STRIKE] I have checked the signs at this site and there is a misspelt ambiguous sign on the actual ticket machine.


(I would never give them credit for any signs, they are bound to be high up and unremarkable unless you are looking for them).

And is the actual parking charge £sum clearly drawn to drivers' attention? If not, that's a breach of 2(3) of the POFA Schedule 4, inadequate signage to draw the £xx (specifically the figure) to a driver's attention.

cactusmelba

Hi Coupon-mad!

Thanks for that clarification. I've amended my document accordingly.
Yes, I'm afraid the sum is very clearly indicated on all signs except the small one on the ticket machine. Right NEXT to the ticket machine there's a large print fully compliant sign and a second one, with all of the terms and conditions on it. But the actual ticket machine is ambiguous.

cactusmelba

Right then.

Here's the work in progress.

Thanks so much for all of you people's help, I actually understand what I'm arguing about now, it was such a big blur of legalese at first!

If there is anything more I should include, please let me know, or if I should rearrange any of the points, or leave any of the extraneous stuff out. I don't want to waffle. I know I've doubled up some points, but they seemed to fit into more than one category!

Here goes......



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.

4. Lack of standing/authority from landowner.

5. Poor signage (non-compliance to BPA CoP).

6. Grace Period.


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 POFA 2012 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 YX52EKW 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 in the above ways and therefore no keeper liability exists.

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

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 19.5 & 19.6 state that the charges must be ‘proportionate and commercially justifiable’.

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or 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. 19.6 If your parking charge is based upon a contractually agreed sum, that charge should not be punitive or unreasonable. If it is more than the amount in Clause 19.5 and is not justified in advance, it could lead to an investigation by Trading Standards or another appropriate authority.

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 £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.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. The judge said in ParkingEye v Beavis that fines shouldn't be "excessive". Unfortunately they didn't go as far as to say how much in monetary terms they'd consider to be "excessive." Apparently they didn’t think that £85 was excessive for a 56-minute overstay. I would argue that £100 for an alleged 17-minute overstay IS excessive as it is far harsher a ratio of charge to time.

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. It is completely unrelated to local Penalty Charge levels in this area. Additionally there is no evidence of the car remaining parked for that period of time. EVEN IF the vehicle was parked for 17 minutes, the most the landowner could hope to gain for that period of time would be one pound in car parking fees. (60 pence of which was already overpaid by the driver). Therefore £100 is definitively an unreasonable charge for a 40 pence under payment.

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 traffic in the car park, 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.”

There is no mention of this on the signage at all, which seems unfair and unreasonable. There is mention on the signage of a ten minute grace period if one does not agree to the terms and conditions, (see attached photograph) but this is buried in small print, and as mentioned above does not allow for any traffic or hindrances in getting out of the car park. This point is especially important 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.
In my opinion, if a driver were to enter the car park, stop their vehicle, and try to read and fully understand all of the terms in the small print on the signage, that alone would take more than the ten minutes grace period mentioned, incurring charges. This does not seem fair to me. If I personally had read all of the terms and conditions, there is no way that I would park in a car park operated by Smart Parking, as is the case from now on.
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".

I, as the registered keeper, entered in to no contract with Smart Parking, especially not a significantly imbalanced one that results in detriment to myself as the consumer.

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 or even themselves. 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. Poor signage (non-compliance to BPA CoP).

I have examined the signs at the car park and found a misspelt ambiguous sign on the actual ticket machine. The ticket machine, the actual point at which payment is made, the ONE sign that EVERY driver will HAVE to see as they pay for their ticket, clearly states “Tarrif – ALL DAY - £2.40” (sic). It does not state which hours of the day “all day” apply to, arguably, all day could easily be presumed to be a 24 hour period. Surely the sign that will be MOST visible to everybody will be the one on the actual ticket machine. If this particular notice is unclear, ambiguous and misleading then it seems to be a deliberate attempt by Smart Parking to muddy the waters and cause mistakes to be made. The judge in ParkingEye Ltd v Beavis talked about “concealed pitfalls or traps”, this certainly seems to be one of them.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used.

Smart Parking has failed to clearly inform drivers on the signage about how the data will be used and stored.

I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance.

The signage contains no mention of a grace period for loading/unloading, navigating into and out of the car park. Although this is not a legality, the whole process is based on ANPR cameras which only record entrance and exit times, not actual parking time. The signage does mention a ten minute grace period if the driver does not agree to the terms and conditions, but, rather unfairly I think, not mention that any grace period is allowed for loading up a vehicle and exiting the car park.

6. Grace Period.

The BPA CoP states in 13.4:

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.

It seems unreasonable that this grace period is not mentioned in the terms and conditions except for in the event a driver does not agree to the terms and conditions and decides not to park. As stated earlier, if the driver was at the vehicle by the end of the paid for time then had unforeseen problems getting out of the car park, then this unknown grace period may have expired by the time the vehicle finally leaves the car park. Is it reasonable to have a grace period but not let customers know what it is, or what they should do if this grace period is overstayed?


In conclusion, I contend it is wholly unreasonable, significantly imbalanced, and to the detriment of the consumer to attempt to profit by charging a disproportionate sum not in line with council penalties, 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.




To anybody that has made it thus far and actually read this and offers constructive criticism, I thank you wholeheartedly for bothering. I shall buy you a pint or make a donation to a suitable charity, even if I lose the appeal!

Coupon-mad

I would add that the BPA have now made this 11 minutes to leave after expiry of time, which is in addition to the reasonable time needed at the start, which could be the same. There are two grace periods, either side of actual parked time, which after all is covered by a 'parking tariff' not a 'total stay on site tariff'.

See Guy's Dad's post #37 here

https://forums.moneysavingexpert.com/discussion/5356210

HTH - use some of that.

cactusmelba

Thanks coupon mad, although I think it's slightly different in this case. As opposed to paying for, say, two hours parking from whenever you arrived, the car park my vehicle was in works on charges between periods of time, i.e. 8-6 £2.40, after 6, £1.00. So the pre-parking grace period isn't really applicable as the vehicle started it's parking time halfway through the period paid for.
That post #37 had some great wording though, I'll be nicking some of that.

Yoink!

How's the rest of it looking to you good good people?

Coupon-mad

Should be OK (hard to be sure with 'new' POPLA Assessors) but you will get a chance to comment on PE's evidence later anyway.

cactusmelba

Great, thanks for all the help so far, let's see what happens.. I'll submit it tonight.