Appealing to POPLA - Smart Parking + 10 minute grace period? :(

Sammy_A

Hi everyone - I've been reading through this forum r.e. experiences with POPLA and Smart Parking because I'm a little bit stuck. I've gotten a PCN from Smart Parking and want to appeal to POPLA but I'm worried I'll have to end up paying the full charge (I'm not very good at arguing and beginning to think I should have just paid the cheaper rate than appealing it in the first place )

I've read through other people's experiences and it has reassured me that I can do something, but I'm not very good at making a convincing argument. If someone could point me in the right direction of the documents I should be quoting or who I should word things, I'd truly appreciate it!

I'll explain my predicament:

I traveled to my accountant and the closest carpark is a camera monitored one at a Matalan owned by Smart Parking. I paid for an hour whilst I visited the accountant - overran by 6 minutes and then recieved the PCN a few days after (the letter was so plain and hardly marked as urgent!!) I spoke to my girlfriend and brother and they mentioned that the BPA asks for a 10 minute grace period - I quoted this to Smart Parking in my appeal and they replied back they I don't have grounds. They simply said that I need to apply to POPLA and gave me a code.

Is there a specific way I can word this to Popla to win my case? Do they listen to what's laid out by the BPA? I'm a worrier and would appreciate absolutely ANY support or info you can give


Thanks again!

pappa_golf

13 Grace periods
13.1 Your approach to parking management must allow a
driver who enters your car park but decides not to park,
to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 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.
13.3 You should be prepared to tell us the specific grace period
at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave
the private car park after the parking contract has ended,
before you take enforcement action

Umkomaas

Is there a specific way I can word this to Popla to win my case? Do they listen to what's laid out by the BPA? I'm a worrier and would appreciate absolutely ANY support or info you can give

NEWBIES FAQ sticky, post #3 - most of it is written out for you there, simply a case of reading and understanding it and that it fits your case (99% of the time it will), then copy and paste into a draft appeal, flash it up here for us to fine tune, then send it away to POPLA.

You don't need to be a 'good arguer' to do that.

beamerguy

Smart, the not so smart parking company who lost out big time when a major supermarket kicked them out along with other contracts they have lost.

The latest scam by Smart Parking is reported here
http://parking-prankster.blogspot.co.uk/2017/01/lowther-street-carlisle-car-park-smart.html

Get your POPLA appeal going not forgetting the BPA code of practice regarding grace period.

Chances are very high that Smart will not contest it so you will win.

You might wonder why Smart rejected your appeal ???

Because they are low life scum, they just hope that people will pay up without a fight.

Sammy_A

Hi all,

Okay, thanks for your replies. I've done a lot of reading on this (it's such a time sink, help!) but I've started to draft a response.

r.e. the Protection of Freedoms Act 2012:
The keeper of the car is my girlfriend, but I was the driver at the time. Smart Parking issued the PCN to her address. The actual PCN itself had accurate evidence (despite not sticking with the BPA CoP when it comes to grace periods) and followed all guidelines... but she wasn't the driver. Can I use this to my advantage? I feel like I have a leg to stand on when it comes to the grace period, but would appreciate any advice on that!

In the draft I say that I'm the driver... After reading more, I feel as though this is a bad move?

A lot of people state how this process has made them worry (it certainly has me) - is this something worth adding into the appeal?

Here's my draft so far:

Dear POPLA adjudicator,

I’m writing to you to express my concern over the unfair PCN sent to the keeper of the car, number plate: XXXXXXXX.

There are several points where Smart Parking are not following the Cod of Practice as laid out by the BPA, June 2013. The vehicle, as seen in the evidence provided by Smart Parking, which I have uploaded to POPLA as evidence of my own, is time stamped with the time the ANPR picked up the vehicle entering and then leaving the car park.

The vehicle entered the car park at 1:48pm and left the car park at 2:54pm. This is only a 6 minute overstay which occurred because myself and other patrons of the vehicle were loading the car. I was the driver of the vehicle and paid for 1 hour of stay time in the car park.

I was aware of my rights when parking my car and knew that I was permitted a 10 minute grace period after my paid time expired. This is laid out clearly in the BPA CoP - I quoted this to Smart Parking who have informed me I do not have grounds to appeal this.

Below is the relating paragraph from the BPA CoP which Smart Parking is not following:
13 Grace periods
13.1 Your approach to parking management must allow a
driver who enters your car park but decides not to park,
to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 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.
13.3 You should be prepared to tell us the specific grace period
at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the
private car park after the parking contract has ended, before
you take enforcement action. If the location is one where
parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.

As you can see, Smart Parking are not following these guidelines, and my overstay in the park was within my rights as someone parking on Private land under the contract laid out by the agent, following the BPA's guidelines.



As you can see, I'm not very good at this, but would this be enough for me to win my case? thanks again for the help guys:)

Fruitcake

That CoP is out of date. The latest one is version 6 from 2015.

Other appeal points will be, not the landowner, inadequate signage, no standing to bring charges. If you appealed as keeper, their NTK will probably not be POFA 2012 compliant so that will be another appeal point.

Sammy_A

Hi guys! Okay so this has taken up a lot of my time now but I've managed to slice together lots of successful cases and I think this works:

(P.s. it's really long, sorry in advance!!)

Dear POPLA adjudicator,

I’m writing to you to express my concern over the unfair PCN sent to the keeper of the car, number plate: XXXXXXX.

There are several points where Smart Parking have not observed the Code of Practice as laid out by the BPA, June 2015 version 6. The vehicle, as seen in the evidence provided by Smart Parking, which I have uploaded to POPLA as evidence of my own, is time stamped with the time the ANPR picked up the vehicle entering and then leaving the car park. This is where two key issues arise.

I was not the driver of the vehicle at the time the PC occurred and I have see no evidence from Smart Parking to suggest that I was the driver of the car. The second reason this is an unjust PCN is Smart Parking have not observed the grace period as set out in the BPA CoP, June 2015 ver. 6. I shall address these key issues, and others, below.

The operator has not shown that the individual who it is pursuing (myself), 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 a similar case (6061796103), this time 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.''

The operator has not observed the 10 minute minimum grace period as laid out by the BP in the CoP, 2015, in this case

As you can see from the photos (fig 1 and 2), taken by the ANPR, the vehicle entered the car park at 1:48:24pm and left the car park at 2:54:51pm. Paragraph 13 of the BPA CoP clearly outlines the expectations of Smart Parking in this respect. The vehicle had not overstayed the expected 10 minute grace period as highlighted in 13.4 in this instance.

13 Grace periods
13.1 Your approach to parking management must allow a
driver who enters your car park but decides not to park,
to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 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.
13.3 You should be prepared to tell us the specific grace period
at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the
private car park after the parking contract has ended, before
you take enforcement action. If the location is one where
parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.


There is 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

Taking all this into consideration, and with the evidence provided by Smart Parking to me which directly contradicts the guidelines laid out by the BPA, I have grounds to appeal this unfair PCN delivered to me by Smart Parking.

Yours faithfully,
Sammy

Redx

if the KEEPER is the "girlfrend" , then the popla appeal should be from her too , as keeper

you are only advising her on this , but its her appeal if the pcn and popla code are in her name

and the fact that she is or isnt the "driver" is irrelevant if not so SMART have followed POFA2012 , so have they

reword it so its coming from the person named on the pcn , if that is the keeper then all that she has to do is state she was not the driver at the time , no need to say who was driving

far too much "detail" in that appeal, any appeal is based on legal arguments only , such as

NO CONTRACT
POOR OR INADEQUATE SIGNAGE
GRACE PERIODS (clause #13 of the BPA CoP
any NTK failures
any POFA2012 failures
any BPA CoP failures

you are not "telling a story" here , you are appealing against a pcn to an adjudicator , one who "doesnt care" about the circumstances or any mitigation, just legal arguments. you are not writing about your concern, she is writing an appeal , not her "concerns"

use the following 3) principles

1) the less said the better

2) use the K.I.S.S. principle ( "Keep It Simple Stoopid")

3) if the keeper is appealing , write it from her perspective only
bullet point each section with a header on what legal argument it is based on

and then add a bullet point menu near the top , after any opening statement by the keeper

so more like these recent 2 which I found in less than 5 minutes

https://forums.moneysavingexpert.com/discussion/5583134

https://forums.moneysavingexpert.com/discussion/5550866

Coupon-mad

P.s. it's really long

It isn't, it's short! Mine go to ten pages or more.

As Redx says, there is more to add and most can be copied from other examples on similar threads or using the POPLA templates in post #3 of the NEWBIES thread.

Sammy_A

Hi all,

Thanks for all of your help and advice with this - I think i've covered everything, but do I need to add anymore about the contract? Also, does anyone have a template for something to add about the sum being charge is in conflict with schedule 2 (i think that's the one) and to show how it isn't equal to the sum lost by the business?

Thanks again!!

Dear POPLA adjudicator,

I’m writing to you to express my concern over the unfair PCN sent to the keeper of the car, number plate: XXXX XXX.

There are many points where Smart Parking has not observed the Code of Practice as laid out by the BPA, June 2015 version 6.

There are several key reasons for why I am challenging this Parking Charge Notice (PCN throughout this letter). The most important reasons being:
I was not the driver of this vehicle at the time. The operator has not shown that the individual who it is pursuing is, in fact, the driver who was liable for the charge.
Smart Parking has not observed the 10 minute minimum grace period permitted to drivers as laid out by the BPA CoP (Clause 13 of the BPA Code of Practice.)
No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
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

The vehicle, as seen in the evidence originally provided by Smart Parking, which I have uploaded to POPLA as evidence of my own (also at the bottom of this document), is time stamped with the time the ANPR picked up the vehicle entering and then leaving the car park.

I was not the driver of the vehicle at the time the PCN occurred and I have seen no evidence from Smart Parking to suggest that I was the driver of the car. The second reason this is an unjust PCN, is Smart Parking have not observed the grace period as set out in the BPA CoP, June 2015 ver. 6. I shall address these key issues, and others, below.

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 me as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in a similar case (6061796103), this time 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.’'

Upon revisiting the car park, the signs 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 on the sign entering the car park. The penalty charge is not mentioned on the sign when entering the car park, when the ANPR first scans the car. The driver of the vehicle, upon entering the car park, is completely unaware of the terms Smart Parking is asking in their contract. I submit therefore that there was no contract between the driver and Smart Parking. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence, the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

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:

web link here

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:

web link here

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. 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 operator's 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:

Web link here

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

Web link here

''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:

Web link here

''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:

Web link here

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.

The operator has not observed the 10-minute minimum grace period as laid out by the BP in the CoP, 2015, in this case.

As you can see from the photos (fig 1 and 2), taken by the ANPR, the vehicle entered the car park at 1:48:24pm and left the car park at 2:54:51pm. Paragraph 13 of the BPA CoP clearly outlines the expectations of Smart Parking in this respect. The vehicle had not overstayed the expected 10 minute grace period as highlighted in 13.4 in this instance.

13 Grace periods
13.1 Your approach to parking management must allow a
driver who enters your car park but decides not to park,
to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 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.
13.3 You should be prepared to tell us the specific grace period
at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the
private car park after the parking contract has ended, before
you take enforcement action. If the location is one where
parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.

I submit that the driver and patrons of the vehicle were not permitted adequate time for loading and the evidence provided by Smart Parking themselves clearly shows that they have not been fair in issuing this PCN.



There is 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

Taking all this into consideration, and with the evidence provided by Smart Parking to me which directly contradicts the guidelines laid out by the BPA, I have grounds to appeal this unfair PCN delivered to me by Smart Parking.

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 and basic contract law.


Yours faithfully,
Sammy

Coupon-mad

Yes that looks fine so far, nearly done. It will be submitted as a PDF under 'OTHER' on the POPLA website.

Also, does anyone have a template for something to add about the sum being charge is in conflict with schedule 2 (i think that's the one) and to show how it isn't equal to the sum lost by the business?

No, don't bother to try to argue 'no loss' because that argument went out of the window with the Beavis case.

You could add an extra point to tell POPLA why the NTK is not a POFA one, pointing out that the NTK does not have the wording from 9(2)f of Schedule 4 (quote the warning in that paragraph) and if it was not received by day 14, set out the dates and say so.

Where you talk about the timings I would also add a line making it clear that the driver paid for an hour, therefore the imaginary overstay is a mere six minutes - because I didn't think your wording quite made that clear, looked like you were telling POPLA the car stayed for 1hr and 6 minutes but not explaining that the driver paid for an hour.