Fistral beach smart parking fine

Jason1bmx

Hi all, new to this site but have read some good posts regarding info on appealing to popla and having success.

So basically I had a letter come through my parents door as I have recently moved out and haven't changed my driving licence address (I'm guessing that's how they managed to get my contact details) I opened it and it was dated **** that on the **** I had received a parking charge saying I needed to pay £60 14 days before the date on the letter. I never did I appealed which I had a letter back saying that.. They have considered my appeal in detail and have decided to uphold the pcn as they believe that it is correctly issued, the letter states I have until the **** to pay the outstanding £100 after which an extra £10 will be added and the pcn will be passed to debt recovery.

we have a popla code and want to appeal to them but I'm asking for some help and advise on tips on what to include and how to lay out the appeal

Basically we visited fistral beach on the stated date. we entered at *** according to the picture on the pcn which I believe is correct.. When entering we got held up due to mass traffic and lack of spaces. We then parked. And decided we was going to go for a walk along the beach after staying in the car a few mins we saw a car move from a spot closer to the beach so we quickly moved the car into that spot. we then walked to the ticket machine to see how much it was to park. we went back to the car got the wallet and back to the machine. we then had to wait a few mins as there was people in front of us taking ages! Eventually we got the ticket which we still have and Is attached to the first appeal to smart parking because it clearly states we left their property before the ticket ended.

the ticket was valid until ***. And we left at *** which is stated on the exit picture on the pcn.
Please advise

Thanks.

Umkomaas

Please read the NEWBIES FAQ sticky, particularly post #3 which explains how to deal with a POPLA appeal. There are some ready made template appeal points covering the main issues you will need to appeal this against.

Show us your draft before submitting to POPLA. Don't miss the POPLA deadline, or you could end up with 6 years of hassle.

Also read this, and if you're feeling particularly arsey, consider a claim against them under the DPA. It could end up with them paying you!

http://parking-prankster.blogspot.co.uk/2016/11/smart-parking-settle-out-of-court-for.html

Jason1bmx

Hi I shall have a quick look now and try get a draft together soon may I add, we have 28 days to appeal to popla from the date on the letter

Also I'd like to add that I can see where smart parking are charging me because we entered the site at *** Paid for the ticket at ***. Due to hold ups stated above. So basically we are 15mins overstayed because we didn't buy the ticket on entering.

Umkomaas

You're allowed a grace period to give you sufficient time to find a space, find the P&D machine, read the signs (the 'contract' you enter), decide if you wish to stay, purchase your ticket and place in your car.

At the end of parking you are allowed a minimum of 10 minutes to leave the car park. Fistral is a very busy car park (and a notorious one for PPC aggressive ticketing) so you must make sure you build grace periods into your appeal to POPLA.

Jason1bmx

The grace period on leaving the car park isnt relevant to us because we left before the ticket expired. It is the 18 mins between entering and purchasing a ticket which they belive to be the problem which has resulted in the pcn,

Would you still recommend using that point? What are your thoughts

Thanks

Umkomaas

Don't forget that the ANPR cameras are timing your entry to the car park, not your actual parking time.

The judge in the following Fistral Beach case (ParkingEye, the former PPC covering Fistral before Smart) determined that circling around/waiting for a space to become free was not 'parking'.

http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html

The Jopson appeal case where the judge defined 'parking'. Do read this and pull what you can from it, as this case can be seen as 'persuasive' and can be quoted as such.

https://bmpa.zendesk.com/hc/en-us/article_attachments/208537969/JOPSON_V_HOMEGUARD_2906J_Approved.pdf

Here's another link to a MSE thread by IvorPecheque who is regarded as an expert on Fistral Beach and the parking shenanigans that go on there.

https://forums.moneysavingexpert.com/discussion/5349269

Umkomaas

@OP - an apposite court transcript for you to read and quote.

http://nebula.wsimg.com/c289944f81b4afb375a97d05d5a80df6?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Ivor_Pecheque

If you do need any photo's of signage etc, try a post on "Newer Newquay," (facebook), there's a whole community willing to help :-)

Jason1bmx

Hi, sorry for the delay, here is my popla appeal letter for my recent pcn.

I'm sure there will be areas which will need amending so please feel free to advise there are links on my appeal but the forum wouldn't let me include them.

thanks in advance

POPLA CODE: XXXXXXXXXXXXXXXX

I am the​ registered keeper and I am appealing this parking charge from Smart Parking at Fistral Beach, Newquay. The reasons for the appeal are as follows:-

1)
The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

**link**


In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

**link**

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

**link**


As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

**link**


''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

**link**


''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

**link**

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

2)
The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
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.

In this case, no other party apart from an evidenced driver 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

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 of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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

4)
No reasonable grace period allowed
Delay at start was due to the lack of suitable car parking spaces in the car park which resulted in the driver circling around the car park a number of times looking for a space . The P&D machine was at the opposite end of the car park. it took some time to read the information regarding the parking charges and obtaining the correct change for the relevant ticket . At the first attempt to pay at the machine the driver incorrectly entered the wrong registration number and had to start again, then the driver tried to pay but the machine failed and rejected a number of coins.

The British Parking Association code of practice 13.2 states: You should allow the driver a reasonable grace period in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.

5)
ANPR signs
The ANPR signs (if any) fail to state how the data will be used, The driver had no idea that their total stay, including the period of parking and attempting to use the old machine in a busy area of the car park, would be calculated from the moment they drove in. This is a BPA CoP breach as well as an ICO breach and means the driver could not make an informed decision. They were relying on the P&D ticket and left the site before it expired. As there are no signs to explain otherwise, the ANPR system cannot secretly calculate the time from entry from the road.

6)
No breach of contract and no genuine pre-estimate of loss
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require Smart Parking Ltd. to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Smart Parking Ltd. cannot lawfully include their operational day-to-day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Ter​ms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. For the record, the alleged contravention was of a duration of xx minutes at a time when the driver noted that the car park in question was at an estimated xx% of capacity. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where non

END

Fruitcake

No GPEOL is a dead duck since the Beavis case last year, so you should remove that part.

Did you make your initial appeal as keeper or driver? You can't use the POFA 2012 if the PPC know who was driving. If you appealed as keeper you need to edit your original post and refer only to The Driver, or The Keeper.

You haven't mentioned that you were driving around looking for a parking space. You should include that and refer to the court case already mentioned where a judge says driving around is not parking.

Jason1bmx

Okay I shall remove the gpeol,

I have mentioned about the driving around in the Grace period, point 4.. I can and will expand on that before appealing

My first appeal letter for my smart parking charge is below. In hind sight I should of looked on here first being inexperienced with dealing with the situation

PARKING CHARGE REF NUMBER: XXXXXXXXX

I have received your letter dated ***** with a parking charge notice.

I am disappointed to have received this letter given I paid for parking on the day. I have enclosed a copy of the parking ticket which relates to my stay at Fistral Beach Newquay. As you are aware I left the car park at **** my parking ticket was valid until ****

I trust this clarifies the situation, and you will rescind the parking charge notice.

Please confirm the charge has been rescinded within 14 days.

Yours sincerely



Thanks.