NCP Smart Matalan Hayes

Coupon-mad

Most of the other appeals do not have much info.. people do not reply on what grounds they won...

Because Smart don't contest, if people submit a long and detailed forum appeal. So there is no reason or grounds that won - ''the PPC threw in the towel'' is usually the outcome.

No you don't need to do any hard work/no need to take photos in order to use the template about signage comparing it to the Beavis sign. If Smart contest, they have to show their evidence/signs.

Show us your draft once you've perfected it.

j5emm

hi, I too have had a parking charge notice from smart parking, I visited my local Matalan with my disabled mum, parked in a disabled parking bay and you can clearly see the disabled badge on display on my dashboard, I went into the store to register the vehicle details as requested on a small A3 sized piece of paper as we entered the store and was told that there wasn't anyone on customer services and to just do it at the end when we paid for our goods....neither of us wanted to buy anything and left the store...so not registering the car details...not that it said anywhere to register the details so we didn't get a parking charge notice through the post.
fast forward a few weeks, pcn arrives and hubby takes it down to the store to show how unhappy he was about it...to be assured that they were having a few problems with the parking company and that she would deal with it....fast forward a few more weeks and its now a letter from DRP to say that we overstayed paid time (we were in the store 29mins) and that we now owe £155. hubby again went down to the store to ask why we had this when he had been assured it was going to be dealt with this time he was told that there was nothing they could do....
do we contact anyone or just wait it out....

Coupon-mad

j5emm wrote: »

hi, I too have had a parking charge notice from smart parking, I visited my local Matalan with my disabled mum, parked in a disabled parking bay and you can clearly see the disabled badge on display on my dashboard, I went into the store to register the vehicle details as requested on a small A3 sized piece of paper as we entered the store and was told that there wasn't anyone on customer services and to just do it at the end when we paid for our goods....neither of us wanted to buy anything and left the store...so not registering the car details...not that it said anywhere to register the details so we didn't get a parking charge notice through the post.
fast forward a few weeks, pcn arrives and hubby takes it down to the store to show how unhappy he was about it...to be assured that they were having a few problems with the parking company and that she would deal with it....

fast forward a few more weeks and its now a letter from DRP to say that we overstayed paid time (we were in the store 29mins) and that we now owe £155. hubby again went down to the store to ask why we had this when he had been assured it was going to be dealt with this time he was told that there was nothing they could do....

do we contact anyone or just wait it out....

https://forums.moneysavingexpert.com/discussion/5632913

Enough posts about debt collectors for today...please...this is not needed.

What was missing from the NEWBIES sticky thread when you read it first? The entire section in post #4 of that thread is about debt collector stage, top of this forum.

What I would ask is what happened when you complained to Matalan's Head Office about the store lying to you?

j5emm

Thanks for the link you have posted, I'm awaiting reply from Matalan head office but as ever a bank holiday gets in the way! I will let you know if they reply.

Snowtime1

Good Luck!

Snowtime1

My appeal: Please let me know what you think . Many thanks again!
Most of it are copy and paste from another appeal. I took out a few bits where they mentioned their case.
I have not mentioned the driver to date and have the right to do so.

Dear Sir / Madam,

Re: Parking notice: xxxxx POPLA Verification Code: xxxx Vehicle reg: xxxxxx
Issued by: Smart Parking Ltd


I wish to strongly appeal against this charge on the basis:

APPEAL POINT 1


I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by!SmartParking Ltd in respect of an alleged breach of Parking Terms and Conditions at <LOCATION> on <DATE>. 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:

Appeal point 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:


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.

I believe the signs at this car park do 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.

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.


Since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, I believe 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.''

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:



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 smartparking 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 smartparking 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.

Appeal point 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.''

Appeal point 3


As Smartparking 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 Smartparking 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 Smartparking 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



On the basis of all the points raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP.

I look forward to your prompt reply.

Yours faithfully,

Coupon-mad

You need a point that says why the Smart Parking PCN isn't a POFA one (and yes, that's been done to death on dozens of threads so we are not expecting you to write it from scratch). Search the forum.

Snowtime1

I'm on the case! advanced search time. that will be appeal point 1.. let me find and draft it in!

Thank you !!!!!

Snowtime1

Why do I feel bad copy and pasting this?
Thanks to harto;
https://forums.moneysavingexpert.com/discussion/comment/72108518#Comment_72108518

Appeal 1 in post 17 becomes 2, 2 becomes 3, 3 becomes 4.
Below is appeal 1:

Appeal point 1:

The Notice to Keeper is not compliant with Protection of Freedoms Act 2012

Schedule 4 Paragraph 9 of the Protection of Freedoms Act 2012 strictly defines the criteria that any NTK must comply with. The PCN detailed above does not comply with POFA on the following clauses

- 9 (2) (b) "The notice must inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full". The NTK does NOT state the driver is required to pay parking charges, nor does it state that the parking charges have not been paid in full.

- 9 (2) (d) "The notice must specify the total amount of those parking charges that are unpaid, as at a time which is (i)specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))". The NTK does nots state the total amount of the parking charges that were unpaid. In fact it makes no reference to the charge that should have been paid or any monies paid towards that value whatsoever. In actual fact, parking charges have been paid in full. I attach a copy of the parking ticket purchased to cover the full duration of the stay at the car park ove the period in question. In error, the registation number of the previous family vehicle was entered. Nevertheless, full parking has been paid for and Smart Parking can attest to the fact that no vehicle with the registartion AD06 UJA entered, left or was present within the car park during this period.

- 9 (2) (e) "The notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper- (i)to pay the unpaid parking charges; or (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver" The NTK does not state that the creditor does not know both the name of the driver and a current address for service for the driver.

- 9 (2) (f) "The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid". The NTK does not provide this warning, it does not refer to needing the drivers name and current address nor does it state that the creditor has the right to recover from the keeper after 28 days if it does not have this information. It merely states that a parking charge needs to be paid within 28 days.



Will that be enough do you reckon?

Thanks in advance.

snowtime1

Coupon-mad

Why do I feel bad copy and pasting this?

You shouldn't - what we do to win appeals and defences has been glorified copy & pasting for years! It works.

Yes, that will do, those 4 points will win v Smart.

I would put that as point #1 because non-POFA/no liability should be an easy one for POPLA to see.