Parking Charge Notice fell off Windscreen

MZhelp

I've been sent an invoice for not paying a car park's charges. My problem is that a 'Parking Charge Notice' wasn't attached to the car when I returned so I didn't realised I was being charged until a letter arrived a month letter. By which time the full fine of £80 was payable, instead of £40 if paid straight away. I appealed and they showed pictures of the car with a 'Parking Charge Notice' attached, it had disappeared in the time between issue and return (no more than 20 minutes). I don't mind paying the £40 charge I'd have had the opportunity to pay had the initial notice been delivered to me, but they insist on full payment.

I've read this forum and MSE advise and see that they should have sent a letter within 14 days if there had been no parking charge notice. However they thought the notice had been delivered, so not sure what my rights are, if I can get away on a technicality.

For the full timeline:
16 March: I parked without paying the necessary charges. No 'Parking Charge Notice' was attached to the vehicle.
21 April: Letter received saying £80 was owed. I inspected the car park and the signs were clear it was a paid for car park, when I last used it 10 years ago there were no charges. My fault entirely. Used the internal appeals process.
23 May: Appeal denied, Parking Charge upheld, and given the POPLA verification code to continue the appeal with them.

bod1467

Please read the NEWBIES sticky thread before anything else.

Many PPCs claim to affix a windscreen notice but never do. Some affix the notice, photo it then remove it. Which PPC was this?

As you have a POPLA code - use it. (POPLA is also covered in the NEWBIES thread).

Ralph-y

it is called 'ghosting' ...... try forum searches for further examples ....

as above read up on the newbie thread on how to win this at popla

https://forums.moneysavingexpert.com/discussion/4816822

good luck

Ralph:cool:

MZhelp

The PPC is 'Smart Parking Ltd' (Scotland company registration SC138255).

I've gone through the newbies guide and searched for examples but can't decide what argument to use. If being honest then I'd choose 'Other' grounds for appeal and it would be my word against theirs with reference to no PCN being attached on return:
"A PCN wasn't attached to the vehicle on the day in question. Granted ‘Smart Parking’ have provided photographs of a PCN on the car. However the first notification received was 36 days after the alleged event, at which point it was too distant to gather evidence to include in an appeal."

Or given it was my son driving that day I could go down the lines of not being the driver, no photographs have been provided of the occupant so not sure if that works.

Thanks a lot for your help.

hoohoo

Smart don't use keeper liability so appeal on the grounds that you were not the driver and so are not liable

Coupon-mad

MZhelp wrote: »

The PPC is 'Smart Parking Ltd' (Scotland company registration SC138255).

I've gone through the newbies guide and searched for examples but can't decide what argument to use.

So you haven't read other VERY recent Smart threads and spotted that just submitting as your online appeal, the (blue writing) template appeal as written there in the NEWBIES FAQS THREAD, would have got a Smart PCN cancelled within a fortnight? The template includes the fact there is no keeper liability and - as long as the driver is not identified - Smart always back off and most people never have to bother with POPLA.

If you'd done that you would not have to be at POPLA stage, but never mind.

Just search the forum for 'Smart POPLA' now. There are POPLA examples from people like yourself who had to jump through that hoop.

But have you already given away who was driving, in that first appeal?! If so then you will have to major on unclear signage and no landowner authority.

MZhelp

Below is the first draft of my appeal to POPLA, it is based on the appeal proposed in @TugaGirl 's thread (as a newbie I can't provide a link) and feedback provided by @coupon-mad . I'd appreciate any advise you can give.

I'm reasonably certain I didn't revealed who the driver was in the initial appeal, although I wish I'd come to this forum before I sent it, I don't have a copy of what was sent.

I am appealing Parking Charge Notice XXXXXXXXXX, received from Smart Parking Ltd by post in a Notice to Owner on 21st April 2016 for an alleged parking offence on the 16th March 2016.

My appeal to the Operator, Smart Parking, was rejected on 23rd May 2016. I am the registered keeper of vehiclereg XXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:


1. The first notification received was 36 days after the alleged parking charge.

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

3. The signage on site is inadequate or inappropriate and can have made no contract with the driver.

4. A lack of standing or authority from the landowner


1. The first notification received was 36 days after the alleged parking charge.

A PCN wasn't attached to the windscreen of the vehicle when the driver returned. Granted ‘Smart Parking’ have provided photographs of a PCN on the windscreen, it wasn’t present when the driver returned. The first notification actually received was 36 days after the alleged event via post, at which point it was too late to gather all the evidence that would be useful to include in an appeal, or option for early payment discount. Inspection of the windscreen after receiving Notice to Owner 36 days later revealed no residue from a sticky substance.


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 a serviceable address for the driver of the vehicle. As the registered keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of FreedomsAct 2012 have been satisfied. The Notice to Keeper, titled Notice to Owner, dated 19 April 2016 fails to comply with POFA2012 Schedule 4 on at least 6 specifics.

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

The Notice merely states that a Parking Charge Notice was fixed to the vehicle, and remains outstanding. The Operator does not fulfil the requirement to inform the keeper that the driver is required to pay the charge, nor that the charge has 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 a current address for service for the driver and invite the keeper –
(i) To pay the unpaid parking charges; or
(ii) If the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver…”

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

The Operator’s Notice merely informs the owner that a previously extant discount period has expired. The owner was never informed of this discounted period and the notice makes it apparent that such discounted period that may have 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 with the 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 current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid”

The Operator does not state clearly, as required byPara 8(2)(f) that it has the right to recover from the keeper that amount as remains unpaid if (i) the amount had not been paid in full and (ii) the creditor does not know both the name of the driver and a current address for service for the driver. It is clear that these are separate requirements which must each be met separately, the operator has not fulfilled the requirements of the Act in the regard.

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 it is 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, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales”

- 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 prescribed under paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was fixed to the vehicle and detailed above” it provides no evidence at all with the Notice. The Notice to Owner provides a link to its website where there are 6 digital photographs of the vehicle parked in a bay, and close ups of the car which provide no understanding of where the vehicle is located. Beyond those photographs, which in no way demonstrate 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 Notice must include such evidence as required by Para 8(10). The burden of proof is upon the operator and I challenge the Operator to provide clear unequivocal evidence that Para 8(10) of the Act does not require their Notice to provide and 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

Having subsequently visited the site, the main sign is on a roundabout prior to the vehicle entrance to the carpark and is barely noticeable as drivers who, unable to stop at that point in the road, rightly strive to accord with legal and safe driving practice. The sign is impossible to read whilst entering the carpark and is insufficiently eye catching to give one cause to revisit after parking.I believe Smart Parking have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers.

Furthermore there is no evidence that any of those signs were positioned between the alleged contravening parked car and the pedestrian entrance. It is highly unlikely that a driver even saw a sign. I require SmartParking to prove beyond any 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 from the exact position of the parked car and the exit that the driver used on that day.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle can not have seen any clear, unambiguous sign; there was no consideration / acceptance and no contract agreed between the parties.


4) Lack of standing/authority from landowner

Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording.I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). SmartParking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that SmartParking are entitled to pursue these charges in their own right.

I require Smart Parking to provide a full copy of the contemporaneous,signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this outrageous sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

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

Coupon-mad

I would just add the full points 'a - e' from 7.3 of the BPA CoP to the final point. Then, job done I think.

MZhelp

The appeal worked! Special thanks to @coupon-mad for your assistance during this process. The email response from POPLA said:

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

After making edits proposed by @coupon-mad my final appeal email is below, I hope this may be useful for reader's future appeals, note #1 is totally bespoke to my case.

Dear Sir / Madam
RE: POPLA Verification Code XXXXXXXXXXX
I am appealing Parking Charge Notice XXXXXXXXXXX, received from Smart Parking Ltd by post in a Notice to Owner on 21st April 2016 for an alleged parking offence on the 16th March 2016.

My appeal to the Operator, Smart Parking Ltd, was rejected on 23rd May 2016. I am the registered keeper of vehiclereg XXXX XXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:


1. The first notification received was 36 days after the alleged parking charge.

2. A non-compliant Notice to Owner (or keeper) – no keeper liability established under POFA 2012.

3. The signage on site is inadequate or inappropriate and can have made no contract with the driver.

4. A lack of standing or authority from the landowner


1. The first notification received was 36 days after the alleged parking charge.

A PCN wasn't attached to the windscreen of the vehicle when the driver returned. Granted Smart Parking Ltd have provided photographs of a PCN on the windscreen, it wasn’t present when the driver returned. The first notification actually received was 36 days after the alleged event via post, at which point it was too late to gather all the evidence that would be useful to include in an appeal, or option for early payment discount. Inspection of the windscreen after receiving Notice to Owner 36 days later revealed no residue from a sticky substance.


2) Non compliant Notice to Keeper - no keeper liability established under POFA 2012.

As the owner, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the registered keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of FreedomsAct 2012 have been satisfied. The Notice to Keeper, titled Notice to Owner, dated 19 April 2016 fails to comply with POFA 2012 Schedule 4 on at least 6 specifics.

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

The Notice merely states that a Parking Charge Notice was fixed to the vehicle, and remains outstanding. The Operator does not fulfil the requirement to inform the keeper that the driver is required to pay the charge, nor that the charge has 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 a current address for service for the driver and invite the keeper –
(i) To pay the unpaid parking charges; or
(ii) If the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver…”

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

The Operator’s Notice merely informs the owner that a previously extant discount period has expired. The owner was never informed of this discounted period and the notice makes it apparent that such discounted period that may have 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 with the 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 current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid”

The Operator does not state clearly, as required byPara 8(2)(f) that it has the right to recover from the keeper that amount as remains unpaid if (i) the amount had not been paid in full and (ii) the creditor does not know both the name of the driver and a current address for service for the driver. It is clear that these are separate requirements which must each be met separately, the operator has not fulfilled the requirements of the Act in the regard.

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 it is 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, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales”

- 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 prescribed under paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was fixed to the vehicle and detailed above” it provides no evidence at all with the Notice. The Notice to Owner provides a link to its website where there are 6 digital photographs of the vehicle parked in a bay, and close ups of the car which provide no understanding of where the vehicle is located. Beyond those photographs, which in no way demonstrate 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 Notice must include such evidence as required by Para 8(10). The burden of proof is upon the operator and I challenge the Operator to provide clear unequivocal evidence that Para 8(10) of the Act does not require their Notice to provide and include evidence as per Para 8(7).

The Notice to Keeper does not comply with the strict requirements of POFA 2012 Schedule 4 and no keeper liability exists.


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

Having subsequently visited the site, the main sign is on a roundabout prior to the vehicle entrance to the carpark and is barely noticeable as drivers who, unable to stop at that point in the road, rightly strive to accord with legal and safe driving practice. The sign is impossible to read whilst entering the carpark and is insufficiently eye catching to give one cause to revisit after parking. I believe Smart Parking Ltd have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers.

Furthermore there is no evidence that any of those signs were positioned between the alleged contravening parked car and the pedestrian entrance. It is highly unlikely that a driver even saw a sign. I require Smart Parking Ltd to prove beyond any 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 from the exact position of the parked car and the exit that the driver used on that day.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle can not have seen any clear, unambiguous sign; there was no consideration / acceptance and no contract agreed between the parties.


4) Lack of standing or authority from landowner

Smart Parking Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). SmartParking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that SmartParking are entitled to pursue these charges in their own right.

I require Smart Parking Ltd to provide a full copy of the contemporaneous,signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this outrageous sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

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 boundaries of 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 do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay Parking Ticketing Ltd.

I put Smart Parking Ltd to strict proof of compliance with all of the above requirements.

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

Yours faithfully,

XXXXX XXXXXX