Smart Parking appeal rejected – do I take it further? Please help!

TugaGirl

I really do want to fight this, I can't afford £60 to pay the discounted rate, let alone the £100.
I just wanted reassurance of people with more experience than me (and probably a lot more clued up than me) that I've got a chance of winning.

But thank you, I will take all of your responses and try and draft my appeal to POPLA. I will load it on here and see what you guys think, if that's ok?

Coupon-mad

I’ve been given the verification code to take this to POPLAbut I’m scared that, if rejected I will have to pay £100 instead of £60.

I’ve tried to get a draft letter together, but there is soso much information out there, that I’ve got so confused and overwhelmed by itall.

Overwhelmed? By the simple advice about POPLA stage in post #3 of the NEWBIES thread, saying to search the forum for the name of the parking firm and the word 'POPLA'.

'Smart POPLA' goes into the parking forum search box. Not difficult. You copy one from 2016. You adapt it a bit. You post it here.

TugaGirl

On xxxx Ireceived a Notice to Owner from Smart Parking alleging a parkingoffence on xxxx, and demanding a charge to be paid. My appealto the Operator, Smart Parking was rejected on xxxxx. I am the registered keeper of vehiclereg XXXXX and I contend that I am not liable for the alleged parkingcharge. 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 orcommercially justifiable iaw BPA guidelines.

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

3. The signage on site is inadequate or inappropriate and can have made nocontract with the driver.

4. A lack of standing or authority from the landowner (the council) or thesupermarket who use the car park for its customers.

5. Unreasonable and unfair terms.


Smart Parking’s signs and written correspondence (Noticeto Owner) states the charge is for 'breaching the conditions' so this Operatormust prove the charge to be a genuine pre-estimate of loss.

This Operator cannot demonstrate any initial quantifiable loss. The parkingcharge must be an estimate of likely losses flowing from the alleged breach inorder to be potentially enforceable. Where there is an initial loss directlycaused by the presence of a vehicle in breach of the conditions (e.g. loss ofrevenue from failure to pay a tariff) this loss will be obvious. An initialloss is fundamental to a parking charge and, without it, costs incurred by issuingthe parking charge notice cannot be said to have been causedby the driver's alleged breach. Heads of cost such as normal operational costsand tax-deductible back office functions, debt collection, etc. cannot possiblyflow as a direct consequence of this parking event. The Operator would have been in the sameposition had the parking charge notice not been issued, and would have hadmany of the same business overheads even if no vehicles breached any terms atall.

Smart Parking’s rejection of my appeal,as the vehicle owner, states that as of Oct 2014 a pre-estimate of loss is nolonger required but that guidelines issued in Oct 2014 para 34.6 state that thecharges must be proportionate and commercially justifiable. SmartParking’s charges are outrageously disproportionate, indeed punitive in natureand intent. Moreover the charges are entirely unjustifiable from a commercialperspective, other than merely to charge as much money as they think they canget away with.

2) Non compliant Notice to Keeper - no keeper liability established under POFA2012.

As the owner, I have not named the driver of the vehicle or provided aserviceable address for the driver of the vehicle. As the registered keeper ofthe vehicle, I can only be held liable for the parkingcharge if the relevant provisions of Schedule 4 of the Protection of FreedomsAct 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 6specifics.

- 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 periodof 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 parkingcharges in respect of the specified period of parkingand that the parking charges have not been paid in full;”

The Notice merely states that a Parking Charge Notice was fixed to the vehicle, andremains outstanding. The Operator does not fulfill the requirement to informthe keeper that the driver is required to pay the charge, nor that the chargehas 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 acurrent 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 ofthe name of the driver and a current address for service for the driver and topass the notice on to the driver…”

The Notice does not, in a single document, state that the Operator does notknow both the name of the driver and a current address for service for thedriver and invited the owner to pay the charge or provide this specific driverinformation. These are clearly separate requirements which must be metseparately. Though the Operator has fulfilled para 8(2)(e)(i) and hinted thatthe owner might provide "driver details", the operator has notfulfilled the other specifics of Para 8(2)(e). The Operator has failed to statethat they do not know both the name of the driver and a current address forservice for the driver and does not request that specific information. Nor doesthe 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 thearrangements for the resolution of disputes or complaints that are available;”

The Operator’s Notice merely informs the owner that a previously extantdiscount period has expired. The owner was never informed of this discountedperiod and the notice makes it apparent that such discounted period that mayhave 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 withthe 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 currentaddress for service for the driver,
the creditor will (if all the applicable conditions under this Schedule aremet) have the right to recover from the keeper so much of that amount asremains 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 itis 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, tohave been delivered (and so “given” for the purposes of sub-paragraph (4)) onthe second working day after the day on which it is posted; and for thispurpose “working day” means any day other than a Saturday, Sunday or a publicholiday in England and Wales”

The Operator’s Notice, dated xxx, states that if “payment in full is notreceived within the next 28 days then the total amount outstanding will bepassed to a debt recovery agency for collection”. 28 days from 23 Feb is 22Mar. It goes on to state “to stop this possibility” the owner “should contactthem before 23 Mar”. The discrepancy within the notice is very confusing and inbreach of the Act on those grounds alone. The breach of these Paras iscompounded by a more serious infraction; assuming that the notice was posted onthe 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 afterthe date the notice is given ie 26 Feb, and extends from up to and including 26Mar. The Operator’s Notice misled and misinformed the owner by stating thewrong period for appeal and failed to comply with the Act; in fact of law theowner has in accordance with the Act a period of time up to and including theentirety 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 byPara 8(2)(f) that it has the right to recover from the keeper that amount asremains unpaid if (i) the amount had not been paid in full and (ii) thecreditor does not know both the name of the driver and a current address forservice for the driver. It is clear that these are separate requirements whichmust each be met separately, the operator has not fulfilled the requirements ofthe 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 prescribedunder paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was fixed to thevehicle and detailed above” it provides no evidence at all with the Notice. TheNotice provides a link to its website where there are 2 digital photographs ofthe vehicle parked neatly in a bay. Beyond those photographs, which in no waydemonstrate 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 Noticemust include such evidence as required by Para 8(10). The burden of proof isupon the operator and I challenge the Operator to provide clear unequivocalevidence that Para 8(10) of the Act does not require their Notice to provideand include evidence as per Para 8(7).

The Notice to Keeper does not comply with the strict requirements of POFA2012Schedule 4 and no keeper liability exists.



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

The alleged breach took place in make do car park in Flowers Road, Lujton.Having subsequently visited the site, the main sign at the immediate vehicleentrance to the carpark is barely noticeable as drivers who, unable to stop atthat point in the road, rightly strive to accord with legal and safe drivingpractice. Indeed the text is so small as to render the sign unreadable andunremarkable. The sign is impossible to read whilst entering the carpark and isinsufficiently eyecatching to give one cause to revisit after parking.I believe Smart Parking have done this quite deliberately so as to havethe claim afterwards that signage is provided, but in the full knowledge allthe while that it is highly unlikely that its message will be recognised or notedby drivers.

Furthermore there is no evidence that any of those signs were positionedbetween the alleged contravening parked car and the pedestrian entrance. It ishighly unlikely that a driver even saw a sign. I require SmartParking to prove beyond any doubt that there was asuitable sign, meeting the requirements of the law, within the clear line ofsight of the driver on the driver’s walking route from the exact position ofthe 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 prominentlythat the party 'must' have known of it and agreed terms. The driver of thisvehicle can not have seen any clear, unambiguous sign; there was noconsideration/acceptance and no contract agreed between the parties. In theirrejection of my appeal, Smart Parking assert that I was the driver (when no suchinformation has been passed to Smart Parking) that by merely entering the carpark “I “ agreedto the terms and conditions. This is an utter nonsense, requiring a driver,even one with full faculty and cognition, to have agreed to terms andconditions upon entry and before having become aware of signage or read andunderstood the terms and conditions.

4) Lack of standing/authority from landowner

Smart Parking has no title in this land and no BPA compliantlandowner contract assigning rights to charge and enforce in the courts intheir 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 theactual landowner (not a lessee or agent). SmartParking have no legal status to enforce this chargebecause there is no assignment of rights to pursue PCNs in the courts in theirown name nor standing to form contracts with drivers themselves. They do notown this car park (the local council do) and appear (at best) to have a bare licenseto put signs up and 'ticket' vehicles on site, merely acting as agents. Noevidence has been supplied lawfully showing that SmartParking are entitled to pursue these charges in their ownright.

I require Smart Parking to provide a full copy of the contemporaneous,signed & dated (unredacted) contract with the landowner. I say that anycontract is not compliant with the requirements set out in the BPA Code of Practiceand does not allow them to charge and issue proceedings for this outrageous sumfor this alleged contravention in this car park. In order to refute this itwill not be sufficient for the Operator merely to supply a site agreement orwitness statement, as these do not show sufficient detail (such as therestrictions, charges and revenue sharing arrangements agreed with a landowner)and may well be signed by a non-landholder such as another agent. In order tocomply with paragraph 7 of the BPA Code of Practice, a non-landowner private parkingcompany must have a specifically-worded contract with the landowner - notmerely an 'agreement' with a non-landholder managing agent - otherwise there isno 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 onUTCCR 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 asto what must be paid and in what circumstances.

An unclear and ambiguous jargon laden signage, is far from 'transparent' orobvious to drivers.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) listof 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 failsto fulfill his obligation to pay a disproportionately high sum incompensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant tosection 4(1) of the Unfair Contract Terms Act 1977 which provides that: "Aperson cannot by reference to any contract term be made to indemnify anotherperson (whether a party to the contract or not) in respect of liability thatmay be incurred by the other for negligence or breach of contract, except in sofar as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unclear, obscure or poorly, evendangerously located, signs in an attempt to profit by charging adisproportionate sum where no loss has been caused by a car in an otherwisefree car park where the bays are not full. I put this Operator to strict proofto justify that their charge, under the circumstances described.


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

MZhelp

I'm in the same situation with Smart Parking, the difference is that I wasn't caught via APNR and a PCN wasn't attached to the vehicle on return (although their evidence shows a PCN). Like you I've been composing a POPLA appeal letter, I'm not experienced enough to comment on the validity of your letter but can say it covers all my points and with greater eloquence. I eagerly look forward to the experts' response to your post. Thanks for sharing, good luck!

Coupon-mad

First thoughts on the draft:

- you can't use no GPEOL any more (point #1) so delete that. MZhelp can't use that appeal point as written either, it takes some different wording to argue about the disproportionate charge now.

- the point re 'no keeper liability' only applies if you DIDN'T give away who was driving already.

- the point re 'no keeper liability' in an ANPR case (IF you haven't already thrown that baby out with the bathwater) needs to refer to para 9 instead (not para 8 which suits MZhelp's case instead, as his/hers was a windscreen PCN).

- delete point #5 altogether because the UTCCRs were incorporated into the Consumer Rights Act in 2015 and POPLA will not take it into account anyway.

Here is a more recent one which was won at POPLA, about a 24 minutes overstay in a 2 hour free car park:

https://forums.moneysavingexpert.com/discussion/5422280

@TugaGirl, try adapting that instead...and MZhelp you need to start your own thread wit your draft POPLA appeal and tell us if you've already given away the driver (tell us in your OWN thread). This is TugaGirl's thread.

MZhelp

@TugaGirl after a more thorough inspection I'd point you to:
- First paragraph of point #2: States the date of Notice to Owner was '23 Feb 15', this needs to be updated with your date.
- The two paragraphs after 'Paragraph 8(6) of the Act' refer to dates that are not within your time frame, and indeed might not be relevant if Smart Parking did not mess up their calculations.
- Point #5: You state the council own the land, do you know this for certain? I plan to remove the name of the owner, likewise in summary at top.

Thanks @Coupon-mad. I will be adding to my own thread when fully modified in line with your advise here.

TugaGirl

Thank you Coupon-mad, I’ve tried to adapt the oneyou've mentioned.
Is this a bit better? Thank you so much foreveryone's time,
Especially Coupon - mad, I keep seeing your name everywhere, taking thetime to always answer and read things thoroughly - I really appreciate it and know everyone else does too.


I am the registered keeper and I wish to appeal a recentparking charge from Smart Parking on xxxx at xxxx . I submit the points belowto show that I am not liable for the parking charge:

1) No standing or authority to pursue charges nor form contracts with drivers.
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeperliability.
3) The signage was not readable so there was no valid contract formed.
4) The ANPR system is unreliable and neither synchronised nor accurate -evidence does not discount two visits shown as one.
5) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the‘Aziz test’.


1) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so theyhave no standing to make contracts with drivers in their own right, nor topursue charges for breach in their own name. In the absence of such title, SmartParking must have assignment of rights from the landowner to pursue charges forbreach in their own right, including at court level. A commercial site agentfor the true landholder has no automatic standing nor authority in their ownright, which would meet the strict requirements of section 7 of the BPA Code ofPractice.

Section 7 of the British Parking Association (BPA) Code of Practice requiresparking operators to have the written authority from the landowner to operateon the land and to enforce charges in the courts in their own name.

In addition, Section 7.3 states:

“The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundariesof the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations,including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not,be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement.''

I therefore put Smart Parking to strict proof to provide POPLA and myself withan unredacted, contemporaneous copy of the contract between Smart Parking andthe landowner, not just another agent or retailer or other non-landholder,because it will still not be clear that the landowner has authorised thenecessary rights to Smart Parking.


2) The Notice to Keeper is not compliant with the POFA 2012 - no keeperliability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set outthe position clearly in terms of 'describing the parking charges due' whichremained unpaid as at the day before the date of issue of the PCN. Due to thistimeline stated in Schedule 4, these 'parking charges due' can only be a tariffthe driver should have paid, because no higher sum was 'due' before the PCN waseven printed!

I can see from the limited information before me in the NTK, only that the carstayed for a certain amount of time and that the contravention was 'either/or'an overstay or failure to pay. This does not create any certainty of terms, itleaves a keeper to wonder what the hourly rate tariff even was and whether thedriver paid nothing, or paid too little, or paid only for half an hour or anhour, or paid in full but put in the wrong car registration, or some otherevent. This Operator has the technology to record car registrations, tocollect/record payments and to take photos of cars arriving and leaving, so itwould be reasonable to assume that they are able - and indeed are requiredunder the POFA - to state on the NTK the basic requirements to show a keeperhow the 'parking charges' arose and the amount of outstanding parking charges(tariff) as at the day before the PCN was issued.

These are the omissions:

''9(2)The notice must—

(a)
Specify the vehicle, the relevant land on which it was parked and the period ofparking to which the notice relates; (The 'period of parking' is not shown,just two photographs with nothing to identify where the car was within the carpark, in moving traffic. No visible signs or landmarks are in the background toshow where the pictures were taken so this cannot be evidence sufficient toestablish any period of parking.

(c) Describe the parking charges due from the driver as at the end of thatperiod, the circumstances in which the requirement to pay them arose (includingthe means by which the requirement was brought to the attention of drivers) andthe other facts that made them payable;

(d) Specify the total amount of those parking charges that are unpaid...'

(f) Warn the keeper that if, after the period of 28 days beginning with the dayafter that on which the notice is given— (Total Parking Solutions have wordedthis incorrectly stating that this is payable no later than 28 days from thedate of issue of this notice.

The amount of the unpaid parking charges specified under paragraph (d) has notbeen paid in full. (The NTK fails to state the sum of the unpaid parking chargethat the driver was alleged not to have paid on the day (which can only be thetariff and not the £40 which is not payable by any mechanism and cannot bedeemed the 'unpaid' sum). To comply with paragraph 9, a NTK 'must' describe theparking charges which were due from the driver as at the day BEFORE the date ofposting of the postal Notice. It does not mention those unpaid charges (thetariff).

(h) Specify the date on which the notice is sent (where it is sent by post) orgiven (in any other case). (Total Parking Solutions have not informed me of thedate the notice was sent but just the issue date of this notice)

(G) identify the creditor and specify how and to whom payment or notificationto the creditor may be made; ( This NTK does not identify the creditor, whichmay be Total Parking Solutions, may be Jempsons Store, or could certainly beanother party altogether. The fact that some of this information may be able tobe implied by a reader familiar with the legal context of parking does not meanthat the Notice to Keeper is compliant. And (as was found by POPLA on manyoccasions in 2015) nor can the 'creditor' be assumed just because the NTK asksfor payment to be made to Total Parking Solutions. The NTK should have astatement to the effect that 'the creditor is'...and it does not.)


The validity of a NTK is fundamental to establishing liability for a parkingcharge. As POPLA Assessor Matthew Shaw stated: ‘‘where a Notice is to be reliedupon to establish liability...it must, as with any statutory provision, complywith the Act.'' This NTK was not compliant due to the omissions of statutorywording, so it was not properly given and there is no keeper liability.


3) The signage was not compliant so there was no valid contract formed between SmartParking and the driver

Thealleged breach took place in make do car park in Flowers Road, Luton. Havingsubsequently visited the site, the main sign at the immediate vehicle entranceto the car park is barely noticeable as drivers who, unable to stop at thatpoint 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 car park and is insufficientlyeye catching to give one cause to revisit after parking .I believe Smart Parking havedone this quite deliberately so as to have the claim afterwards that signage isprovided, but in the full knowledge all the while that it is highly unlikelythat its message will be recognized or noted by drivers.

Furthermore there is no evidence that any of those signs were positioned betweenthe alleged contravening parked car and the pedestrian entrance. It Is shighlyunlikely that a driver even saw a sign. I require Smart Parking to prove beyondany 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 fromthe exact position of the parked car and the entrance that the driver used tothe shop on that day.

A Notice is not imported into the contract unless brought home so prominently thatthe party 'must' have known of it and agreed terms. The driver of this vehiclecan not have seen any clear, unambiguous sign; there was no consideration/acceptanceand no contract agreed between the parties. In their rejection of my appeal, Smart Parkingassert that that by merely entering the car park I agreed to the terms and conditions. This is anutter nonsense, requiring a driver, even one with full faculty and cognition,to have agreed to terms and conditions upon entry and before having becomeaware of signage or read and understood the terms and conditions.

Section 18 of the British Parking Association (BPA) Code of Practice requiresoperators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contractand deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms andconditions for parking, you must also have a standard form of entrance sign atthe entrance to the parking area. Entrance signs must tell drivers that the carpark is managed and that there are terms and conditions they must be aware of.Entrance signs must follow some minimum general principles and be in a standardformat. The size of the sign must take into account the expected speed of vehiclesapproaching the car park, and it is recommended that you follow Department forTransport guidance on this. See Appendix B for an example of an entrance signand more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms andconditions are, including your parking charges. You must place signs containingthe specific parking terms throughout the site, so that drivers are given thechance to read them at the time of parking or leaving their vehicle. Keep arecord of where all the signs are. Signs must be conspicuous and legible, andwritten in intelligible language, so that they are easy to see, read andunderstand. Signs showing your detailed terms and conditions must be at least450mm x 450mm.

If a driver can't read the sum of the parking charge before parking - becausethe font is too small/the sign unremarkable and too high to read from adriver's seat - then they cannot have agreed to it. Also, a keeper appellantcannot be bound by inadequate notice of the charge either (POFA Schedule 4requires 'adequate notice' of the sum of the parking charge, not just vagueillegible small print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of J SpurlingLtd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which Ihave seen would need to be printed in red ink...with a red hand pointing to itbefore the notice could be held to be sufficient''. In Mendelson v Normand andThornton v Shoe Lane which were both about parking, this was also clearlystated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently broughtto his notice beforehand, but not otherwise. In {ticket cases of former times}the issue…was regarded as an offer by the company. That theory was, of course,a fiction. No customer in a thousand ever read the conditions. In order to givesufficient notice, it would need to be printed in red ink with a red handpointing to it – or something equally startling.’

i.e. even if a document or notice is ostensibly under the nose of a consumer,the onerous term (e.g. £100 charge for a 20 minute overstay in a car park)needs to be VERY explicit and prominent. Not hidden among small print on asign, regardless of whether that sign is in the vicinity of the car. This wasreiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he heldthat the courts should not hold any man bound by such a condition unless it was''drawn to his attention in the most explicit way''. Small print on anillegible, unremarkable and pale sign on a wall is not enough and is not on apar with the very clear signs 'with the charge in large lettering' as wasexplored and vital to the decision in Parking Eye v Beavis.


The only signs are up on poles, away from the Pay & Display machine, whichis not a 'sign' nor does it communicate full contractual terms &conditions. Any upright signs were not so prominent among all the other signageon site that they were ever seen by the occupants of the car. Any photossupplied by Smart Parking to POPLA will no doubt show the signs in daylight orwith the misleading aid of a close up camera and the angle may well not showhow high the sign is nor the fact the Smart Parking signs are one of manypieces of information in the clutter of this busy customer car park. As such, Irequire Smart Parking to state the height of each sign in their response and toshow contemporaneous photo evidence of these signs, taken at the same time of daywithout photo shopping or cropping and showing where the signs are placed amonga myriad of other information bombarding a customer.

4) The ANPR system is unreliable and neither synchronized nor accurate, andthere is no evidence that this was just one visit

The rules of the BPA require you to allow a grace period of at least 11 minuteseither to allow a motorist to read the signs and make payment or decide whetherparking is permitted, and at the end of a period of paid for time or maximumstay to allow for discrepancies in the time shown on different devices. Areasonable grace period should be granted and should be fair so no one isdiscriminated against i.e. those with small children or disabled people - seebelow clause 13 of the BPA COP:-

Breach of the BPA Code of Practice regarding Grace Periods: The BPA Code ofPractice requires that additional time upon entry and further time upon exit,is to be allowed. It is wholly unreasonable and a breach of the CPUTRs(misleading action) for Total Parking Solutions to ignore their industry code,which states re grace periods:

Prior to parking: -
13.2 You should allow the driver a reasonable ‘grace period’ in which to decideif they are going to stay or go. If the driver is on your land withoutpermission you should still allow them a grace period to read your signs andleave before you take enforcement action.

Upon returning to the vehicle: -
13.4 You should allow the driver a reasonable period to leave the private carpark after the parking contract has ended, before you take enforcement action.If the location is one where parking is normally permitted, the Grace Period atthe end of the parking period should be a minimum of 10 minutes.

Smart Parking evidence shows no parking time; merely photos of a car driving inand a car outside of the car park which does not discount the possibility of adouble visit that evening or even the 2nd image being of the car driving pastthe car park. It is unreasonable for this operator to record the start of 'parkingtime' as the moment of arrival in moving traffic if they in fact offer a payand display system which the driver can only access after parking and which iswhen the clock in fact starts. The exit photo is not evidence of 'parking time'at all and has not been shown to be synchronized to the pay and display machineclock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possiblyeven with two drivers since the car has more than one family member who drivesit). Or the driver may have driven in, realized it was pay and display thendriven out to get change before returning (and of course the ANPR cameras showonly the first and last visits). The BPA even mention this as an inherent problemwith ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associatedwith its use:

a) Repeat users of a car park inside a 24 hour period sometimes find that theirfirst entry is paired with their last exit, resulting in an ‘overstay’.Operators are becoming aware of this and should now be checking all ANPRtransactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive acharge certificate even though they have not parked or taken a ticket.Reputable operators tend not to uphold charge certificates issued in thismanner...'

Even if an Operator shows a list with 'no record' of that car registration inbetween the times, this would not discount the 'double visit' possibility as itis well known that car registrations are completely missed when a vehicle isfollowed closely by a higher vehicle, or by a temporary interruption in thecamera recording. Or even an item temporarily obscuring the camera from pickingup one car registration, such as a passing bird or wind-blown carrier bag orleaves appearing in front of the camera, even for moments, would stop a recordappearing of a car leaving in between the stated times. I put the Operator tostrict proof to the contrary. All camera records could be checked and thisOperator would still be unable to refute the 'double visit' possibility, sincethey don't bother to record continuous footage, this not being CCTV. If I amwrong then they must show POPLA a complete 'video' that they allege shows nomore entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintainedas described in paragraph 21.3 of the BPA Code of Practice and to have signsstating how the data will be stored and used. Total Parking Solutions havefailed to clearly inform drivers about the cameras and how the data will beused and stored. . I have also seen no evidence that they have complied withthe other requirements in that section of the code in terms of ANPR logs andmaintenance. Indeed, I question the entire reliability of the system. I requirethat Total Parking Solutions present records as to the dates and times of whenthe cameras at this car park were checked, adjusted, calibrated, synchronisedwith the timer which stamps the photos and generally maintained to ensure theaccuracy of the dates and times of any ANPR images. This is important becausethe entirety of the charge is founded on two images purporting to show myvehicle entering and exiting at specific times.


5. Unreasonable and unfair terms – no contract agreed to pay £100. Fails the‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that ofBeavis v ParkingEye) in order to assess whether the imbalance arises ‘contraryto the requirement of good faith’, it must be determined whether the seller orsupplier, dealing fairly and equitably with the consumer, could reasonablyassume that the consumer would have agreed to the term concerned in individualcontract negotiations.”

And as for whether average consumers 'would have agreed' to pay £100 had therebeen negotiations in advance, the answer here is obviously no. There would havebeen no justification or negotiation that could have possibly have persuaded anaverage consumer to pay £100 to this parking firm. Their charge relies uponunseen terms, not clear contracts, and should not be upheld.


I have made my detailed submission to show how the applicable law (POFA), caselaw (Beavis) undoubtedly supports my appeal, which I submit should now bedetermined in my favour.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

If you have already appealed and given away who was driving then you will have to delete the entire point #2 (an ADMITTED driver can't say 'no keeper liability'). Are you an admitted driver from the first appeal...hope not but I suspect yes.

(h) Specify the date on which the notice is sent (where it is sent by post) orgiven (in any other case). (Total Parking Solutions have not informed me of thedate the notice was sent but just the issue date of this notice)

(G) identify the creditor and specify how and to whom payment or notificationto the creditor may be made; ( This NTK does not identify the creditor, whichmay be Total Parking Solutions, may be Jempsons Store, or could certainly beanother party altogether. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not meanthat the Notice to Keeper is compliant. And (as was found by POPLA on manyoccasions in 2015) nor can the 'creditor' be assumed just because the NTK asksfor payment to be made to Total Parking Solutions. The NTK should have astatement to the effect that 'the creditor is'...and it does not.)

Both the above mention 'Total Parking Solutions' so it seems you have not proof read this yet and removed/changed the bits that need changing. That's up to you to do thoroughly.

You need a section about how this differs from the Beavis case, explained here:

https://forums.moneysavingexpert.com/discussion/comment/70516924#Comment_70516924

HTH, let's see draft #3. We will get there...

TugaGirl

This is not as easy to do, let alone whilst having a full time job and twoyoung children! So please please, accept my apologies for all the drafts andsilly mistakes.

I got rid of point 2 as unfortunately, I did admit to be the driver on thefirst appeal.

I tried to fully proof read it, but will go through it again in the morningwith a fresh pair of eyes.

I added point 5 to try and explain how this differs from the Beavis case.Not as easy as I thought and I ended up using a lot of your words Coupon-mad,on the link given.

Thank you again for your time. Here it goes..


I am the registered keeper and I wishto appeal a recent parking charge from Smart Parking on xxxx at xxxx . I submitthe points below to show that I am not liable for the parking charge:

1) Nostanding or authority to pursue charges nor form contracts with drivers.
2) The signage was not readable so there was no valid contract formed.
3) The ANPR system is unreliable and neither synchronised nor accurate-evidence does not discount two visits shown as one.
4) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the‘Aziz test’.
5. Nolegitimate interest - this charge is not like that in the Beavis carpark/contract.


1) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so theyhave no standing to make contracts with drivers in their own right, nor topursue charges for breach in their own name. In the absence of such title, SmartParking must have assignment of rights from the landowner to pursue charges forbreach in their own right, including at court level. A commercial site agentfor the true landholder has no automatic standing nor authority in their ownright, which would meet the strict requirements of section 7 of the BPA Code ofPractice.

Section 7 of the British Parking Association (BPA) Code of Practice requiresparking operators to have the written authority from the landowner to operationthe land and to enforce charges in the courts in their own name.

In addition, Section 7.3 states:

“The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundariesof the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations,including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not,be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement.''

I therefore put Smart Parking to strict proof to provide POPLA and myself withinunreacted, contemporaneous copy of the contract between Smart Parking and thelandowner, not just another agent or retailer or other non-landholder, becauseit will still not be clear that the landowner has authorised the necessaryrights to Smart Parking.



2) The signage was not compliant so there was no valid contract formed between SmartParking and the driver

The alleged breach took place in make docar park in Flowers Road, Luton. Having subsequently visited the site, the mainsign at the immediate vehicle entrance to the car park is barely noticeable asdrivers who, unable to stop at that point in the road, rightly strive to accordwith legal and safe driving practice. Indeed the text is so small as to renderthe sign unreadable and unremarkable. The sign is impossible to read whilstentering the car park and is insufficiently eye catching to give one cause torevisit after parking. I believe Smart Parking have done this quitedeliberately so as to have the claim afterwards that signage is provided, butin the full knowledge all the while that it is highly unlikely that its messagewill be recognized or noted by drivers.

Furthermore there is no evidence that any of those signs were positioned betweenthe alleged contravening parked car and the pedestrian entrance. It Isshighlyunlikely that a driver even saw a sign. I require Smart Parking to provebeyondany doubt that there was a suitable sign, meeting the requirements of thelaw,within the clear line of sight of the driver on the driver’s walking routefromthe exact position of the parked car and the entrance that the driver usedtothe shop on that day.

A Notice is not imported into the contract unless brought home so prominentlythatthe party 'must' have known of it and agreed terms. The driver of thisvehiclecan not have seen any clear, unambiguous sign; there was noconsideration/acceptanceand no contract agreed between the parties. In theirrejection of my appeal, Smart Parkingassert that that by merely entering thecar park I agreed to the terms and conditions. This is anutter nonsense,requiring a driver, even one with full faculty and cognition,to have agreed toterms and conditions upon entry and before having becomeaware of signage orread and understood the terms and conditions.

Section 18 of the British Parking Association (BPA) Code of Practicerequiresoperators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parkingcontractand deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the termsandconditions for parking, you must also have a standard form of entrance signatthe entrance to the parking area. Entrance signs must tell drivers that thecarpark is managed and that there are terms and conditions they must be awareof.Entrance signs must follow some minimum general principles and be in astandardformat. The size of the sign must take into account the expected speedof vehiclesapproaching the car park, and it is recommended that you followDepartment forTransport guidance on this. See Appendix B for an example of anentrance signand more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms andconditionsare, including your parking charges. You must place signs containingthespecific parking terms throughout the site, so that drivers are given thechanceto read them at the time of parking or leaving their vehicle. Keep arecord ofwhere all the signs are. Signs must be conspicuous and legible, andwritten inintelligible language, so that they are easy to see, read andunderstand. Signsshowing your detailed terms and conditions must be at least450mm x 450mm.

If a driver can't read the sum of the parking charge before parking - becausethefont is too small/the sign unremarkable and too high to read from adriver'sseat - then they cannot have agreed to it. Also, a keeper appellantcannot bebound by inadequate notice of the charge either (POFA Schedule 4requires'adequate notice' of the sum of the parking charge, not just vagueillegiblesmall print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of JSpurlingLtd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauseswhich Ihave seen would need to be printed in red ink...with a red hand pointingto itbefore the notice could be held to be sufficient''. In Mendelson v NormandandThornton v Shoe Lane which were both about parking, this was alsoclearlystated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficientlybroughtto his notice beforehand, but not otherwise. In {ticket cases of formertimes}the issue…was regarded as an offer by the company. That theory was, of course,a fiction. No customer in a thousand ever read the conditions. In order to givesufficient notice, it would need to be printed in red ink with a red handpointing to it – or something equally startling.’

i.e. even if a document or notice is ostensibly under the nose of a consumer,the onerous term (e.g. £100 charge for a 20 minute overstay in a car park)needsto be VERY explicit and prominent. Not hidden among small print on assign,regardless of whether that sign is in the vicinity of the car. This wasreiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he heldthat the courts should not hold any man bound by such a condition unless it was’‘drawn to his attention in the most explicit way''. Small print on an illegible,unremarkable and pale sign on a wall is not enough and is not on apart with thevery clear signs 'with the charge in large lettering' as was explored and vitalto the decision in Parking Eye v Beavis.


The only signs are up on poles, away from the Pay & Display machine, whichis not a 'sign' nor does it communicate full contractual terms &conditions.Any upright signs were not so prominent among all the other signage on sitethat they were ever seen by the occupants of the car. Any photos supplied bySmart Parking to POPLA will no doubt show the signs in daylight or with the misleadingaid of a close up camera and the angle may well not show how high the sign isnor the fact the Smart Parking signs are one of many pieces of information inthe clutter of this busy customer car park. As such, I require Smart Parking tostate the height of each sign in their response and to show contemporaneousphoto evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among myriad ofother information bombarding a customer.

3) The ANPR system is unreliable and neither synchronized nor accurate, andthere is no evidence that this was just one visit

The rules of the BPA require you to allow a grace period of at least 11 minuteseither to allow a motorist to read the signs and make payment or decide whetherparking is permitted, and at the end of a period of paid for time or maximumstay to allow for discrepancies in the time shown on different devices. Reasonablegrace period should be granted and should be fair so no one is discriminatedagainst i.e. those with small children or disabled people - see below clause 13of the BPA COP:-

Breach of the BPA Code of Practice regarding Grace Periods: The BPA Code ofPractice requires that additional time upon entry and further time upon exit,is to be allowed. It is wholly unreasonable and a breach of theCPUTRs(misleading action) for Smart Parking to ignore their industry code,which states re grace periods:

Prior to parking: -
13.2 You should allow the driver a reasonable ‘grace period’ in which to decideif they are going to stay or go. If the driver is on your land withoutpermission you should still allow them a grace period to read your signs andleave before you take enforcement action.

Upon returning to the vehicle: -
13.4 You should allow the driver a reasonable period to leave the privatecarpark after the parking contract has ended, before you take enforcement action.If the location is one where parking is normally permitted, the Grace Periodatthe end of the parking period should be a minimum of 10 minutes.

Smart Parking evidence shows no parking time; merely photos of a car driving inlanda car outside of the car park which does not discount the possibility of doublevisit that evening or even the 2nd image being of the car driving past the carpark. It is unreasonable for this operator to record the start of 'parking time'as the moment of arrival in moving traffic if they in fact offer a pay anddisplay system which the driver can only access after parking and which is whenthe clock in fact starts. The exit photo is not evidence of 'parking time ‘atall and has not been shown to be synchronized to the pay and display machineclock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possiblyeven with two drivers since the car has more than one family member who drivesit). Or the driver may have driven in, realized it was pay and display thendriven out to get change before returning (and of course the ANPR cameras showonly the first and last visits). The BPA even mention this as an inherent problemwith ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associatedwith its use:

a) Repeat users of a car park inside a 24 hour period sometimes find that theirfirst entry is paired with their last exit, resulting in an ‘overstay’.Operators are becoming aware of this and should now be checking all ANPR transactionsto ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive chargecertificate even though they have not parked or taken a ticket. Reputableoperators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in-betweenthe times, this would not discount the 'double visit' possibility as its wellknown that car registrations are completely missed when a vehicle is followedclosely by a higher vehicle, or by a temporary interruption in the camera recording.Or even an item temporarily obscuring the camera from picking up one carregistration, such as a passing bird or wind-blown carrier bag or leavesappearing in front of the camera, even for moments, would stop a recordappearing of a car leaving in between the stated times. I put the Operator tostrict proof to the contrary. All camera records could be checked and thisOperator would still be unable to refute the 'double visit' possibility, since theydon't bother to record continuous footage, this not being CCTV. If I am wrongthen they must show POPLA a complete 'video' that they allege shows no moreentries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the BPA Code of Practice and to have signs statinghow the data will be stored and used. Smart Parking have failed to clearlyinform drivers about the cameras and how the data will be used and stored. . Ihave also seen no evidence that they have complied with the other requirementsin that section of the code in terms of ANPR logs and maintenance. Indeed, Iquestion the entire reliability of the system. I require that Smart Parkingpresent records as to the dates and times of when the cameras at this car parkwere checked, adjusted, calibrated, synchronised with the timer which stampsthe photos and generally maintained to ensure the accuracy of the dates andtimes of any ANPR images. This is important because the entirety of the chargeis founded on two images purporting to show my vehicle entering and exiting atspecific times.


4) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavisv Parking Eye) in order to assess whether the imbalance arises ‘contrary to therequirement of good faith’, it must be determined whether the seller or supplier,dealing fairly and equitably with the consumer, could reasonably assume thatthe consumer would have agreed to the term concerned in individual contractnegotiations.”

And as for whether average consumers 'would have agreed' to pay £100 had therebeen negotiations in advance, the answer here is obviously no. There would havebeen no justification or negotiation that could have possibly have persuaded anaverage consumer to pay £100 to this parking firm. Their charge relies upon unseenterms, not clear contracts, and should not be upheld.
5) No legitimate interest - this charge is not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

There is no comparable complex 'commercial interest' here and the charge is unconscionable, being set to punish drivers as there is no comparable 'turnover of bays' aim, as was the rationale behind the Beavis charge in a retail park. There are no commercial / retail outlets nearby the Flowers Road car park.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY'extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.


I have made my detailed submission to show how the applicable law (POFA), caselaw (Beavis) undoubtedly supports my appeal, which I submit should now be determinedin my favour.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

This is not as easy to do, let alone whilst having a full time job and two young children!

I know but it's worth doing. I am also a Mum (of 4 teenagers/Uni student kids so in some ways not as needy as your kids, I admit) and I also have a full time job - but we will get there with as good a POPLA appeal as you can make it.


If you are CERTAIN you said it was you driving/parking, then you have binned the best appeal point but that can't be helped now.

Is this right, 'the make do car park'?

The alleged breach took place in make docar park in Flowers Road, Luton

Get rid of the admission of an overstay here - I have changed the bit in brackets to support your side of it:

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge for an alleged few minutes 'overstay' in a car park where the driver did pay and display for the time actually parked in a bay) needs to be VERY explicit and prominent

If your first appeal talked about the reasons why you were delayed, do not use this because it makes it look like you are clutching at straws/not an 'honest' witness because the story has changed (has it? Delete this bit if so...):

As keeper I cannot discount that this may have been a double visit (possiblyeven with two drivers since the car has more than one family member who drivesit). Or the driver may have driven in, realized it was pay and display thendriven out to get change before returning (and of course the ANPR cameras showonly the first and last visits). The BPA even mention this as an inherent problemwith ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associatedwith its use:

a) Repeat users of a car park inside a 24 hour period sometimes find that theirfirst entry is paired with their last exit, resulting in an ‘overstay’.Operators are becoming aware of this and should now be checking all ANPR transactionsto ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive chargecertificate even though they have not parked or taken a ticket. Reputableoperators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in-betweenthe times, this would not discount the 'double visit' possibility as its wellknown that car registrations are completely missed when a vehicle is followedclosely by a higher vehicle, or by a temporary interruption in the camera recording.Or even an item temporarily obscuring the camera from picking up one carregistration, such as a passing bird or wind-blown carrier bag or leavesappearing in front of the camera, even for moments, would stop a recordappearing of a car leaving in between the stated times. I put the Operator tostrict proof to the contrary. All camera records could be checked and thisOperator would still be unable to refute the 'double visit' possibility, since theydon't bother to record continuous footage, this not being CCTV. If I am wrongthen they must show POPLA a complete 'video' that they allege shows no moreentries or exits that day by this car.

And at the end, you need to remove the POFA from here, so in fact I would remove the whole sentence because it doesn't make much sense just reiterating the Beavis case (not needed as you have covered that in your appeal):

I have made my detailed submission to show how the applicable law (POFA), caselaw (Beavis) undoubtedly supports my appeal, which I submit should now be determinedin my favour.

Finally, is there any question about where the in/out photos were taken (if you were a POPLA Assessor, could you tell?).

Could it be any car park/driveway out to any road, anywhere?! If so, add a final point that the photographs do not show where they were taken and where the site boundary is:

The photos are not identified by any landmark to show that they were taken in this particular car park, nor whether this was a corresponding entrance/exit where the cameras are synchronised with each other. As alleged 'evidence', the two ANPR photographs merely show the vehicle at the point of an unidentified roadway and are not conclusive that the car arrived within the boundary of this site, and left the boundary, at the times shown. It looks more like the pictures were taken when the car was on an approach road/leaving onto Flowers Road itself...the difference in minutes is crucial because the site boundary is not shown in the photos and the mandatory TWO grace periods applicable - set under the BPA CoP as shown in my appeal - would more than cover the car otherwise, in allowing a reasonable time at the start AND at the end of paid parking time. It is not disputed that the actual parking time WAS paid for, so proving any alleged overstay down to the exact minute is vital and Smart have not proved that to tip the balance of probabilities in their favour to the tune of profiting by a further £100, over and above the tariff paid in good faith.