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Improved / updated POLPA Smart Parking feedback required
mattc1ark
Posts: 4 Newbie
Any feedback would be appreciated on my second attempt at a POPLA letter for Smart Parking:
Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
3. No evidence or sufficient detail of contravention. The registered keeper cannot make an informed decision based on two photos of a vehicle entering and exiting a car park at different times with no clear explanation of the alleged contravention. The Operator is relying simply on images taken of a vehicle at first entry and then again on exit. These images show no evidence at all of actual parking, waiting or whether a vehicle remained in the car park for the duration or indeed as might have happened, exited and then returned within the recorded timescale. Image 1 (submitted as evidence) clearly shows double lines at the curb edge. The only markings relevant to this are outside the Fistral Beach car park area on the public highway and therefore the vehicle ******* has not entered the car park on the photo (Image 1, submitted as evidence) from Smart Parking Ltd ANPR system. The timing of entry is therefore not as the ANPR system indicates and cannot be used as a basis of entry into the site. For reference (Image 2, submitted as evidence), shows the entrance to Fistral Beach car park, viewed from the ANPR camera area. The double line at the curb edge have been arrowed for comparison to Image 1. The exit time also cannot be confirmed from the ANPR Image 1, as there is no reference as to the vehicles location. If as per the entry image, the vehicle is outside the car park the ANPR times are incorrect and the total time for the vehicle on the site that Smart Parking Ltd claim is also incorrect. At a busy car park such as Fistral Beach, vehicles often wait on the public highway before ‘entering the site’ or even deciding if they will enter at all, and therefore it is suggested that without a barrier system in place it is not possible (or shown in the images provided) that the vehicle actually entered the site at the stated times.
4. The ANPR system is neither reliable nor accurate.
The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Smart Parking Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of supposedly entering and leaving Fistral Beach Car Park, it is vital that Smart Parking Ltd produces evidence in response to these points.
In addition to showing their maintenance records, I require Smart Parking Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle activating the system, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore, I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Smart Parking Ltd to strict proof to the contrary.
Further to this I also require Smart Parking Ltd to provide evidence that there is planning permission for the ANPR cameras used in this notice. It is a criminal offence to obtain data using illegal equipment.
5. Smart Parking Ltd does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
I question Smart Parking Ltd authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.
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 who has no more title than the operator). I question Smart Parking Ltd legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own Fistral Beach or its car park and appear (at best) to have a bare license to put signs up and ‘ticket’ vehicles in the car park, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Smart Parking Ltd is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Smart Parking Ltd are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP 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 put Smart Parking Ltd to strict proof of compliance with all of the above requirements and provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, 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.
So, I contend that the contract - if this operator produces one – provides only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
6. No contract was offered by the Operator as their signage does not comply with BPA Code of Practice. The appellants saw no adequately sized signage whilst driving into the car park. The driver was focused solely on controlling the vehicle’s speed and direction whilst observing both pedestrians and potential hazards (as advised by the Highway Code and fundamental to passing all UK driving theory and practical tests.) Any passengers were either unable to see any signs from their position in vehicle or due to their age could not read. Signs in the car park fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance to the car park. Thus the necessary elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking and not formed after the vehicle has already been parked.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the
question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver entered but was obvious when paying for parking at the end, and where the plaintiff had parked often before.
He said: “He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.” In addition, to suggest a breach of contract, SMART Parking Ltd is required to prove that the driver actually saw, read and accepted the terms, which they cannot do. The driver insists they saw no signs detailing these terms.
To comply with contract law and the BPA Code of Practice, SMART parking are required to use clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park, if they wish to try to establish a contract requiring payment in exchange for a parking space. See Image 3 pay machine used by the appellants during their visit. The signage states “Please see full terms and condition signage”. Yet no terms and condition signage are easily or clearly visible. This google street view image will show the 360 degree view from the pay machine, although from a high view point. (google maps image)Please use this view to show that it was not possible for the appellants to find the terms and condition signage. Images on google are 12 months old but still relevant as no changes have been made to the site, Image 3 was taken in August 2016
It is argued that there was no contract between SMART Parking Ltd and the appellants. If there had been a contract then it is suggested this contract would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999 Terms:
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. ''Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation."
On the basis of all the points raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999 and basic contract law.
thanks again.
- Vehicle Registration Number: *******
PCN Reference TC********
POPLACODE: **********
Issued by Smart Parking Ltd.
I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Ltd in respect of an alleged breach of Parking Terms and Conditions at Fistral Beach Car Park on 28-7-2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
I the registered keeper of vehicle registration ******* and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:
Background information:
The appellants are alleged to have entered onto the Fistral Beach car park, Newquay at 14:47:45 pm on 28th July 2016 as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence). A ticket was purchased after a suitable space was found and the car was safely parked.
The appellants returned to the vehicle within what they believed was the allotted time purchased for parking and moved from the marked parking bay. Due to the extremely busy car park, and an unforeseen incident with one of their children, they were hindered by traffic and vehicles not parked within the allotted parking bays/marked areas. Appellants allegedly exited car park at 17:41:31pm as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
On 13-8-16 a Parking Charge Notice was received from Smart Parking Ltd alleging a parking offence on 28-07-2016, a parking charge notice of £100 is due, letter 1(Submitted as evidence). The Parking charge notice detailed an apparent contravention for an overstay at the car park Fistral Beach car park Newquay.
An appeal to the Operator, Smart Parking Ltd was lodged on 13-09-2016 via their online system. No acknowledgement was received from Smart Parking Ltd for the appeal. An appeal rejection letter was received on 27-08-2016 along with the POPLA appeal code, Letter 2(Submitted as evidence). Please note that the registration number on this appeal rejection letter is one of a vehicle that I am not aware of and therefore I cannot ascertain if in fact my appeal has been considered by Smart Parking Ltd at all.
SMART Parking Ltd refused to allow the appeal on the grounds that: “it was issued correctly”. The letter then states details of another vehicle which was parked for 173 minutes having paid for 120.
The appellants state that they are not liable for the parking charge issued by SMART Parking Ltd for the following reasons:
- In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
3. No evidence or sufficient detail of contravention. The registered keeper cannot make an informed decision based on two photos of a vehicle entering and exiting a car park at different times with no clear explanation of the alleged contravention. The Operator is relying simply on images taken of a vehicle at first entry and then again on exit. These images show no evidence at all of actual parking, waiting or whether a vehicle remained in the car park for the duration or indeed as might have happened, exited and then returned within the recorded timescale. Image 1 (submitted as evidence) clearly shows double lines at the curb edge. The only markings relevant to this are outside the Fistral Beach car park area on the public highway and therefore the vehicle ******* has not entered the car park on the photo (Image 1, submitted as evidence) from Smart Parking Ltd ANPR system. The timing of entry is therefore not as the ANPR system indicates and cannot be used as a basis of entry into the site. For reference (Image 2, submitted as evidence), shows the entrance to Fistral Beach car park, viewed from the ANPR camera area. The double line at the curb edge have been arrowed for comparison to Image 1. The exit time also cannot be confirmed from the ANPR Image 1, as there is no reference as to the vehicles location. If as per the entry image, the vehicle is outside the car park the ANPR times are incorrect and the total time for the vehicle on the site that Smart Parking Ltd claim is also incorrect. At a busy car park such as Fistral Beach, vehicles often wait on the public highway before ‘entering the site’ or even deciding if they will enter at all, and therefore it is suggested that without a barrier system in place it is not possible (or shown in the images provided) that the vehicle actually entered the site at the stated times.
4. The ANPR system is neither reliable nor accurate.
The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Smart Parking Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of supposedly entering and leaving Fistral Beach Car Park, it is vital that Smart Parking Ltd produces evidence in response to these points.
In addition to showing their maintenance records, I require Smart Parking Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle activating the system, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore, I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Smart Parking Ltd to strict proof to the contrary.
Further to this I also require Smart Parking Ltd to provide evidence that there is planning permission for the ANPR cameras used in this notice. It is a criminal offence to obtain data using illegal equipment.
5. Smart Parking Ltd does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
I question Smart Parking Ltd authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.
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 who has no more title than the operator). I question Smart Parking Ltd legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own Fistral Beach or its car park and appear (at best) to have a bare license to put signs up and ‘ticket’ vehicles in the car park, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Smart Parking Ltd is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Smart Parking Ltd are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP 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 put Smart Parking Ltd to strict proof of compliance with all of the above requirements and provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, 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.
So, I contend that the contract - if this operator produces one – provides only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
6. No contract was offered by the Operator as their signage does not comply with BPA Code of Practice. The appellants saw no adequately sized signage whilst driving into the car park. The driver was focused solely on controlling the vehicle’s speed and direction whilst observing both pedestrians and potential hazards (as advised by the Highway Code and fundamental to passing all UK driving theory and practical tests.) Any passengers were either unable to see any signs from their position in vehicle or due to their age could not read. Signs in the car park fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance to the car park. Thus the necessary elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking and not formed after the vehicle has already been parked.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the
question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver entered but was obvious when paying for parking at the end, and where the plaintiff had parked often before.
He said: “He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.” In addition, to suggest a breach of contract, SMART Parking Ltd is required to prove that the driver actually saw, read and accepted the terms, which they cannot do. The driver insists they saw no signs detailing these terms.
To comply with contract law and the BPA Code of Practice, SMART parking are required to use clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park, if they wish to try to establish a contract requiring payment in exchange for a parking space. See Image 3 pay machine used by the appellants during their visit. The signage states “Please see full terms and condition signage”. Yet no terms and condition signage are easily or clearly visible. This google street view image will show the 360 degree view from the pay machine, although from a high view point. (google maps image)Please use this view to show that it was not possible for the appellants to find the terms and condition signage. Images on google are 12 months old but still relevant as no changes have been made to the site, Image 3 was taken in August 2016
It is argued that there was no contract between SMART Parking Ltd and the appellants. If there had been a contract then it is suggested this contract would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999 Terms:
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. ''Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation."
On the basis of all the points raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999 and basic contract law.
thanks again.
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