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

TugaGirl

Oh dear Cupon-mad - 4?? I salute you! I often think how am coping with 2, no ideahow people have more.

I unfortunately definitely said things like: I visited thecarpark / I had to wait for a space / I had no change / I had my children withme, etc. So yes, I definitely admitted tobe the driver.

The make do car park bit – it’s an untarmaced surface (itgets really wet and muddy when it rains) , so no road markings at all andtherefore, no clear indication of maximum of cars allowed or parking bays. Witha “Maximum Height” entrance, one paying machine and the signs. When I state “makedo” I refer to the poor quality of the parking area, plus the massive wholeright in front the paying machine. ShallI take it out?
I’ve just looked at the pictures and yes, there are nolandmarks at all, it could definitely could have been taken in any bit of road,driveway, etc – so I’ve added this as a separate point at the end (point 6).
So here it is again..
Thank you once more.



I am the registered keeper and I wishto appeal a recent parking chargefrom Smart Parking on xxxx at xxxx . I submitthe points below to show that I amnot 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

4) Unreasonable and unfair terms – no contract agreed to pay £100. Failsthe‘Aziz test’.
5) Nolegitimate interest - this charge is not like that in the Beaviscarpark/contract.

6) Thephotographs do not show where they were taken and where the site boundary is.




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 they haveno standing to make contracts with drivers in their own right, nor to pursuecharges for breach in their own name. In the absence of such title,SmartParking must have assignment of rights from the landowner to pursuecharges for breach in their own right, including at court level. A commercialsite agent for the true landholder has no automatic standing nor authority intheir own right, which would meet the strict requirements of section 7 of theBPA Code of Practice.

Section 7 of the British Parking Association (BPA) Code of Practicerequiresparking operators to have the written authority from the landowner tooperationthe 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 theboundariesof the land can be clearly defined

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

c. any conditions or restrictions on the types of vehicles that may, or maynot,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 myselfwithinunreacted, contemporaneous copy of the contract between Smart Parking andthelandowner, not just another agent or retailer or other non-landholder,becauseit will still not be clear that the landowner has authorised thenecessaryrights to Smart Parking.



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

Thealleged breach took place in make docar park in Flowers Road, Luton. Havingsubsequently visited the site, the mainsign at the immediate vehicle entranceto the car park is barely noticeable asdrivers who, unable to stop at thatpoint in the road, rightly strive to accordwith legal and safe drivingpractice. Indeed the text is so small as to renderthe sign unreadable andunremarkable. The sign is impossible to read whilstentering the car park and isinsufficiently eye catching to give one cause torevisit after parking. Ibelieve Smart Parking have done this quitedeliberately so as to have the claimafterwards that signage is provided, butin the full knowledge all the whilethat it is highly unlikely that its messagewill be recognized or noted bydrivers.

Furthermore there is no evidence that any of those signs were positionedbetweenthe alleged contravening parked car and the pedestrian entrance. ItIsshighlyunlikely that a driver even saw a sign. I require Smart Parking toprovebeyondany doubt that there was a suitable sign, meeting the requirementsof thelaw,within the clear line of sight of the driver on the driver’s walkingroutefromthe exact position of the parked car and the entrance that the driverusedtothe shop on that day.

A Notice is not imported into the contract unless brought home soprominentlythatthe party 'must' have known of it and agreed terms. The driverof thisvehiclecan not have seen any clear, unambiguous sign; there wasnoconsideration/acceptanceand no contract agreed between the parties. Intheirrejection of my appeal, Smart Parkingassert that that by merely enteringthecar park I agreed to the terms and conditions. This is anutternonsense,requiring a driver, even one with full faculty and cognition,to haveagreed toterms and conditions upon entry and before having becomeaware ofsignage orread and understood the terms and conditions.

Section 18 of the British Parking Association (BPA) Code ofPracticerequiresoperators to fully comply with the following on entrancesignage:

18.2 Entrance signs play an important part in establishing a parkingcontractanddeterring trespassers. Therefore,
as well as the signs you must have telling drivers about the termsandconditionsfor parking, you must also have a standard form of entrance sign at theentrance to the parking area. Entrance signs must tell drivers that th ecarparkis managed and that there are terms and conditions they must beawareof.Entrance signs must follow some minimum general principles and be inastandardformat. The size of the sign must take into account the expectedspeedof vehiclesapproaching the car park, and it is recommended that youfollowDepartment forTransport guidance on this. See Appendix B for an exampleof anentrance signand more information about their use.

18.3 Specific parking-terms signage tells drivers what your termsandconditionsare, including your parking charges. You must place signscontainingthespecific parking terms throughout the site, so that drivers aregiven 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, readandunderstand. Signsshowing your detailed terms and conditions must be atleast450mm 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 fromadriver'sseat - then they cannot have agreed to it. Also, a keeperappellantcannot bebound by inadequate notice of the charge either (POFASchedule 4requires'adequate notice' of the sum of the parking charge, not justvagueillegiblesmall print, however near the car).

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

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

i.e. even if a document or notice is ostensibly under the nose of a consumer, theonerous term (e.g. £100 charge for an alleged few minutes 'overstay' in a car park where thedriver did pay and display for the time actually parked in a bay)needs tobe VERY explicit and prominent. Not hidden among small print on assign, regardlessof whether that sign is in the vicinity of the car. This was reiterated byDenning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courtsshould not hold any man bound by such a condition unless it was’‘ drawn to hisattention in the most explicit way''. Small print on an illegible, unremarkableand pale sign on a wall is not enough and is not on apart with th every clearsigns 'with the charge in large lettering' as was explored and vital to thedecision 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 othersignage on sitethat they were ever seen by the occupants of the car. Any photossupplied bySmart Parking to POPLA will no doubt show the signs in daylight orwith the misleadingaid of a close up camera and the angle may well not show howhigh the sign isnor the fact the Smart Parking signs are one of many pieces ofinformation inthe clutter of this busy customer car park. As such, I requireSmart Parking tostate the height of each sign in their response and to showcontemporaneousphoto evidence of these signs, taken at the same time of daywithout photoshopping or cropping and showing where the signs are placed amongmyriad 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 11minuteseither to allow a motorist to read the signs and make payment or decidewhetherparking is permitted, and at the end of a period of paid for time ormaximumstay to allow for discrepancies in the time shown on different devices.Reasonablegrace period should be granted and should be fair so no one isdiscriminatedagainst i.e. those with small children or disabled people - seebelow clause 13of the BPA COP:-

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

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

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

Smart Parking evidence shows no parking time; merely photos of a car drivinginlanda car outside of the car park. It is unreasonable for this operator torecord the start of 'parking time'as the moment of arrival in moving traffic ifthey in fact offer a pay anddisplay system which the driver can only accessafter parking and which is whenthe clock in fact starts. The exit photo is notevidence of 'parking time ‘atall and has not been shown to be synchronized tothe pay and display machineclock nor even to relate to the same parking event.

Further, this Operator is obliged to ensure their ANPR equipment is maintainedasdescribed in paragraph 21.3 of the BPA Code of Practice and to have signsstatinghow the data will be stored and used. Smart Parking have failed toclearlyinform drivers about the cameras and how the data will be used andstored. . Ihave also seen no evidence that they have complied with the otherrequirementsin that section of the code in terms of ANPR logs and maintenance.Indeed, Iquestion the entire reliability of the system. I require that SmartParkingpresent records as to the dates and times of when the cameras at thiscar parkwere checked, adjusted, calibrated, synchronised with the timer whichstampsthe photos and generally maintained to ensure the accuracy of the datesandtimes of any ANPR images. This is important because the entirety of thechargeis founded on two images purporting to show my vehicle entering andexiting atspecific times.


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

I also wish to reference the Aziz test (as my case is different to that ofBeavis v Parking Eye) 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 thatthe consumer would have agreed to the term concerned in individualcontract negotiations.”

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

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

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

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

The unusual contractual licence to park that was offered to Mr Beavis in theChelmsford 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 'entirelydifferent' 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 adisproportionately high charge, to avoid such a charge in each individual casefrom being an unenforceable penalty. But this case can easily be distinguishedfrom Parking Eye v Beavis because this case is not a 'complex' contractualarrangement at all, so the same leap cannot be made to disengage the penaltyrule by arguing 'legitimate interest'.

There is no comparable complex 'commercial interest' here and the charge isunconscionable, being set to punish drivers as there is no comparable 'turnoverof 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 thedisproportionate 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 justthat, punitive, with no other compelling commercial rationale nor evenunambiguous evidence to support its imposition.

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

''The true test is whether the impugned provision is a secondary obligationwhich imposes a detriment on the contract-breaker out of all proportion to anylegitimate interest of the [...parking company...] in the enforcement of theprimary obligation. The [...parking operator...] can have no proper interest insimply punishing the defaulter. His interest is in performance or in someappropriate alternative to performance. In the case of a straightforwarddamages clause, that interest will rarely extend beyond compensation for thebreach, and we therefore expect that Lord Dunedin’s four tests would usually beperfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is toconsider, first, whether any (and if so what) legitimate business interest isserved and protected by the clause, and, second, whether, assuming such aninterest to exist, the provision made for the interest is nevertheless in thecircumstances extravagant, exorbitant or unconscionable. In judging what isextravagant, exorbitant or unconscionable, I consider (despite contraryexpressions of view) that the extent to which the parties [...] had everyopportunity to appreciate what they were agreeing must at least be a relevantfactor.’’

POPLA must consider the rationale and reasoning behind a parking charge in eachcase, 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 caseCANNOT 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 butremain unjustified by way of any other legitimate commercial interests.


6) The photographs do not showwhere they were taken and where the site boundary is.

The photosare not identified by any landmark to show that they were taken in thisparticular car park, nor whether this was a corresponding entrance/exit wherethe cameras are synchronised with each other. As alleged 'evidence', the twoANPR photographs merely show the vehicle at the point of an unidentifiedroadway and are not conclusive that the car arrived within the boundary of thissite, and left the boundary, at the times shown. It looks more like thepictures were taken when the car was on an approach road/leaving onto FlowersRoad itself...the difference in minutes is crucial because the site boundary isnot shown in the photos and the mandatory TWO grace periods applicable - setunder the BPA CoP as shown in my appeal - would more than cover the carotherwise, in allowing a reasonable time at the start AND at the end of paidparking time. It is not disputed that the actual parking time WAS paid for, soproving any alleged overstay down to the exact minute is vital and Smart havenot proved that to tip the balance of probabilities in their favour to the tuneof profiting by a further £100, over and above the tariff paid in good faith.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

From the way you described the site I would replace your point #2 with this instead which includes mention of applicable Grace Periods before and after paying:



2) The signage was not compliant and no reasonable grace periods were allowed in view of the nature of this site and old machine. There was no valid contract formed between Smart Parking and the driver, who paid for two tickets which covered the actual time parked.

The alleged parking event took place at a very badly maintained car park in Flowers Road, Luton. It’s an untarmaced surface which gets really wet and muddy when it rains and there are potholes to avoid. Any parking signs are unremarkable and sporadic with small lettering, not 'prominent terms' as was held to be the case in ParkingEye v Beavis.

At the entrance, a driver has to observe a “Maximum Height” restriction barrier and negotiate carefully/slowly through the site, to locate a reasonable corner or parking place (which are unmarked), avoiding stones, slippery mud and holes. It is not a car park a car drives into and parks up in seconds, nor can you pay quickly either. The machine doesn’t accept notes or card payments and there is another massive hole right in front the paying machine which you have to avoid whilst queueing to pay the tariff.

In fact I queued twice and purchased in good faith, two separate 1 hour tickets which I contend did cover the time actually parked, allowing for the two grace periods at the start and end, which the BPA CoP imposes as mandatory regulations in section 13.

It is perfectly reasonable for a driver arriving off the main road, to then need (at arrival) 10 - 12 minutes grace, merely to undertake the task of driving through the mire, finding a space not full of holes, parking safely and then locating the right change and, finally, queuing and stepping over another huge hole to pay the tariff. And the tariff has to be paid all in coins, which is the only method this old machine will accept. My coins were rejected by the old machine and had to be re-inserted - this was an issue and caused some delay. I had to go through this twice as I extended my stay which I understood to be allowed and fully covered for the time actually parked.

At no point did I have a fair opportunity to see, read or accept any extortionate parking charges over and above the advertised tariffs.

Because of the road surface and maximum height barrier, any peripheral 'parking' sign at the entrance to the car park is unremarkable and barely noticeable. Arriving drivers cannot stop at that point in the road to read any information and are concentrating on legal and safe driving practice and avoiding the potholes and the height barrier whilst looking for a safe parking spot. Indeed the text on the signs here is so small as to render the terms incapable of forming a contract. It would help if the signage was readable rather than being written in a tiny font 9ft high in the air. Additionally, as there is no clear sign showing this 'penalty' at or on the pay machine itself, it is not clear that any 'charge' other than the tariff list would ever apply, let alone for that disproportionate 'fine' to be assumed to be an agreed contract.

When leaving after paid-for time the BPA CoP allows up to a further 11 minutes (ten mins shows in the CoP but a minimum 11 minutes grace at the end, was agreed at a BPA Board meeting in November 2015). So the time taken at the start and at the end of paid-for time, in this particular minefield of a car park, was perfectly reasonable especially given the two trips to the machine to pay.

Section 18 of the British Parking Association (BPA) CoP requires operators to fully comply with the following:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park 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 standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

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

In Thornton v Shoe Lane Parking [1971] which was about a pay and display car park and remains binding case law, it was held that a contract only begins when the coins enter the machine - not before this - and any additional terms not seen/agreed before that action, cannot later bind a consumer. Further, Denning LJ held when talking about unclear/unseen terms on a sign in that case:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise [...] In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

Small print on an illegible, unremarkable sign is not enough to meet the test set by the Beavis case, which was a site held to have very prominent signs 'throughout the car park' and 'with the charge in large lettering including at the entrance'. The signs and the rationale behind charging a fine for timing which should reasonably fall within the BPA CoP on grace periods, as in this case, do not meet that bar.

TugaGirl

Hi All,

Just wanted to update you on this as I just received POPLA's response and it was positive! It just says:

"SmartParking have told us they do not wish to Appeal. This means that your Appeal is successful and you do not need to pay the parking charge"

Thank you so much for all you help.
I'm including the final version of the letter I sent to POPLA which will hopefully help others.






I am the registered keeper and I wish to appeal a recent parking chargefrom Smart Parking on 16th April 2016 at Flowers Way Luton.

My verification code is 8511396451.

I submit the points below to showthat I am not liable for the parking charge:

1) No standing or authority to pursue charges nor form contracts with drivers.
2) The signage was not compliant and no reasonable grace periods were allowedin view of the nature of this site and old machine. There was no valid contractformed between Smart Parking and the driver, who paid for two tickets whichcovered the actual time parked.
3) The ANPR system is unreliable and neither synchronised nor accurate-evidence
4) Unreasonable and unfair terms – nocontract agreed to pay £100. Failsthe‘Aziz test’.
5) No legitimate interest - this charge is not like that in the Beaviscarpark/contract.
6) The photographs do not show where they were taken and where the siteboundary is.




1) No standing or authority to pursue charges nor form contracts with driver.

I believe that this Operator has no proprietary interest in the land, sothey have 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 pursuecharges for breach in their own right, including at court level. A commercialsite agent for the true landholder has no automatic standing nor authority intheir own right, which would meet the strict requirements of section 7 of theBPA Code of Practice.

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 enforcementoperations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or maynot, 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 myselfwithin unreacted, 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 signage was not compliant and no reasonable grace periods were allowedin view of the nature of this site and old machine. There was no valid contractformed between Smart Parking and the driver, who paid for two tickets whichcovered the actual time parked.

The alleged parking event took place at a verybadly maintained car park in Flowers Road, Luton. It’s an untarmaced surfacewhich gets really wet and muddy when it rains and there are potholes to avoid.Any parking signs are unremarkable and sporadic with small lettering, not'prominent terms' as was held to be the case in ParkingEye v Beavis.

At the entrance, a driver has to observe a “Maximum Height” restriction barrierand negotiate carefully/slowly through the site, to locate a reasonable corneror parking place (which are unmarked), avoiding stones, slippery mud and holes.It is not a car park a car drives into and parks up in seconds, nor can you payquickly either. The machine doesn’t accept notes or card payments and there isanother massive hole right in front the paying machine which you have to avoidwhilst queuing to pay the tariff.

In fact I queued twice and purchased in good faith, two separate 1 hour ticketswhich I contend did cover the time actually parked, allowing for the twograce periods at the start and end, which the BPA CoP imposes as mandatoryregulations in section 13.

It is perfectly reasonable for a driver arriving off the main road, to thenneed (at arrival) 10 - 12 minutes grace, merely to undertake the task ofdriving through the mire, finding a space not full of holes, parking safely andthen locating the right change and, finally, queuing and stepping over anotherhuge hole to pay the tariff. And the tariff has to be paid all in coins, whichis the only method this old machine will accept. My coins were rejected by theold machine and had to be re-inserted - this was an issue and caused somedelay. I had to go through this twice as I extended my stay which I understoodto be allowed and fully covered for the time actually parked.

At no point did I have a fair opportunity to see, read or accept anyextortionate parking charges over and above the advertised tariffs.

Because of the road surface and maximum height barrier, any peripheral'parking' sign at the entrance to the car park is unremarkable and barelynoticeable. Arriving drivers cannot stop at that point in the road to read anyinformation and are concentrating on legal and safe driving practice andavoiding the potholes and the height barrier whilst looking for a safe parkingspot. Indeed the text on the signs here is so small as to render the termsincapable of forming a contract. It would help if the signage was readablerather than being written in a tiny font 9ft high in the air. Additionally, asthere is no clear sign showing this 'penalty' at or on the pay machine itself,it is not clear that any 'charge' other than the tariff list would ever apply,let alone for that disproportionate 'fine' to be assumed to be an agreedcontract.

When leaving after paid-for time the BPA CoP allows up to a further 11minutes (ten mins shows in the CoP but a minimum 11 minutes grace at the end,was agreed at a BPA Board meeting in November 2015). So the time taken at thestart and at the end of paid-for time, in this particular minefield of a carpark, was perfectly reasonable especially given the two trips to the machine topay.

Section 18 of the British Parking Association (BPA) CoP requires operators tofully comply with the following:

18.2 Entrance signs play an importantpart in establishing a parking contract and 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 ofvehicles approaching the car park, and it is recommended that you followDepartment for Transport guidance on this. See Appendix B for an example of anentrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditionsare, including your parking charges. You must place signs containing thespecific 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.

In Thornton v Shoe Lane Parking [1971]which was about a pay and display car park and remains binding case law, it washeld that a contract only begins when the coins enter the machine - not beforethis - and any additional terms not seen/agreed before that action, cannotlater bind a consumer. Further, Denning LJ held when talking aboutunclear/unseen terms on a sign in that case:

‘The customer is bound by those terms as long as they are sufficiently broughtto his notice beforehand, but not otherwise [...] In order to give sufficientnotice, it would need to be printed in red ink with a red hand pointing to it –or something equally startling.’

Small print on an illegible, unremarkable sign is not enough to meet the testset by the Beavis case, which was a site held to have very prominent signs'throughout the car park' and 'with the charge in large lettering including atthe entrance'. The signs and the rationale behind charging a fine for timingwhich should reasonably fall within the BPA CoP on grace periods, as in thiscase, do not meet that bar.


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 11minuteseither to allow a motorist to read the signs and make payment or decidewhether parking is permitted, and at the end of a period of paid for time ormaximum stay to allow for discrepancies in the time shown on different devices.Reasonable 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 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 private car parkafter the parking contract has ended, before you take enforcement action. Ifthe location is one where parking is normally permitted, the Grace Period atthe end of the parking period should be a minimum of 10minutes.

Smart Parking evidence shows no parking time; merely photos of a car driving inand outside of the car park. It is unreasonable for this operator to record thestart of 'parking time 'as the moment of arrival in moving traffic If they infact offer a pay and display system which the driver can only access afterparking and which is when the clock in fact starts. The exit photo is notevidence of 'parking time ‘at all and has not been shown to be synchronized tothe pay and display machine clock nor even to relate to the same parking event.

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. Smart Parking have failed toclearly inform drivers about the cameras and how the data will be used andstored. . I have also seen no evidence that they have complied with the otherrequirements in that section of the code in terms of ANPR logs and maintenance.Indeed, I question the entire reliability of the system. I require that SmartParking present records as to the dates and times of when the cameras at this carpark were checked, adjusted, calibrated, synchronised with the timer which stampsthe photos and generally maintained to ensure the accuracy of the dates and timesof any ANPR images. This is important because the entirety of the charge isfounded on two images purporting to show my vehicle entering and exiting at specifictimes.


4) Unreasonable and unfair terms – no contract agreed to pay £100.Failsthe‘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 that theconsumer 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 uponunseen terms, not clear contracts, and should not be upheld.
5) No legitimate interest - this chargeis not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEyevBeavis' judgment in every single fact, from signage to therationale/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 specificand compelling commercial justification, giving rise to a rare exception to thepenalty rule IN THAT CASE ONLY.

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

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsfordcar park in the Beavis case was described by the Judges as a 'complex' contractwhich 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, anagent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionatelyhigh charge, to avoid such a charge in each individual case from being anunenforceable penalty. But this case can easily be distinguished from ParkingEye v Beavis because this case is not a 'complex' contractual arrangement atall, 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 'turn over of bays' aim,as was the rationale behind the Beavis charge in a retail park. There are nocommercial / retail outlets nearby the Flowers Road car park.

The ParkingEye v Beavis judgment makes clear that the Courts would consider thedisproportionate 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 unambiguousevidence to support its imposition.

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

''The true test is whether theimpugned provision is a secondary obligation which imposes a detriment on thecontract-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 thedefaulter. His interest is in performance or in some appropriate alternative toperformance. In the case of a straight forward damages clause, that interestwill rarely extend beyond compensation for the breach, and we therefore expectthat Lord Dunedin’s four tests would usually be perfectly adequate to determineits validity.''

Lord Mance at 152 added: ''What isnecessary 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 theinterest is nevertheless in the circumstances extravagant, exorbitant orunconscionable. In judging what is extravagant, exorbitant or unconscionable, Iconsider (despite contrary expressions of view) that the extent to which theparties [...] had every opportunity to appreciate what they were agreeing mustat least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in eachcase, 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 CANNOTbe applied and POPLA cannot just roll out a standard paragraph about it, everytime. The penalty rule remains engaged and parking charges are not' properlygiven' if they are merely punishing an alleged (denied) breach but remainunjustified by way of any other legitimate commercial interests.


6) The photographs do not show where they were taken and where the siteboundary is.

The photos are not identified by any landmark to show that they were taken inthis particular car park, nor whether this was a corresponding entrance/exitwhere the cameras are synchronised with each other. As alleged 'evidence', thetwo ANPR photographs merely show the vehicle at the point of an unidentified roadwayand 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 weretaken when the car was on an approach road/leaving onto Flowers Roaditself...the difference in minutes is crucial because the site boundary is notshown in the photos and the mandatory TWO grace periods applicable – set underthe BPA CoP as shown in my appeal - would more than cover the car otherwise, inallowing a reasonable time at the start AND at the end of paid parking time. Itis not disputed that the actual parking time WAS paid for, so proving anyalleged overstay down to the exact minute is vital and Smart have not proved thatto tip the balance of probabilities in their favour to the tune of profiting bya further £100, over and above the tariff paid in good faith.

This concludes my POPLA appeal.

Yours faithfully,

bod1467

Can you post the result in the POPLA decisions thread please, and include a link back to this thread?

Coupon-mad

Nice result, pleased to hear it!