Smart Parking - Appeal rejected

juniorelvis

Hi

I received a 'fine' from Smart for parking, where I had paid (overpaid actually) but must have put in the wrong reg. The fine came a couple of weeks after I parked, so I didn't have the ticket, and (SORRY!) didn't come here at that point, but appealed on Smart's website, and said 'I must have put in the wrong registration, please check for plates out by one digit, there was only me at the machine for the 5 minutes after the time shown on the entry photo'. Anyway, that was obviously rejected.

Apologies again if I can find this out on the forum, but I couldn't find the specific issue: seeing as I have stated I put in the wrong reg on the Smart appeal, what should I do for the POPLA appeal? Should I appeal to POPLA? If so, is it too late to 'not mention' the wrong reg stuff, has that ship sailed? What is your general advice for me?

Thanks everyone.

Umkomaas

NEWBIES FAQ sticky, post #3, explains the POPLA process and provides template appeal points to use in drafting your appeal.

You can kill this at POPLA - a comprehensive, well researched appeal will likely see Smart slink away. Show us your draft, when ready, for critique and fine tuning. Don't miss the POPLA deadline.

Half_way

Whos car park was this?

juniorelvis

Half_way wrote: »

Whos car park was this?

Hi Half_way - I've no idea! It's Brunswick Street, Stockton-on-tees. It's next to a Royal Navy Association (which has an invalid tel no. listed on Google...) and opposite Stockton Business Centre, but this is council run, so it won't be them. How can I find out?

Coupon-mad

what should I do for the POPLA appeal? Should I appeal to POPLA?

Yes, use the templates in post #3 of the NEWBIES thread. Loads of people make your mistake...it is a bad one, because you crushed your slam-dunk win 'no keeper liability' point. But there are other points which is why I wrote them to stop people asking! Not being funny, it is hard to keep up with 4 pages of threads every day after a day at work.

A quick and simple look down the forum (I went back 4 pages, that's all, seeing as every post was new today) would have found you loads of useful threads including this one where yet another person went and shot themselves in the foot by blabbing who was driving, at early appeal, but still won at POPLA:

https://forums.moneysavingexpert.com/discussion/5620038

HTH

juniorelvis

Hi all and thanks again, how is this? A couple of things: the 'photos' are just from streetview (sorry the site won't let me upload them or link to them, or add any other links), I can make the journey to get real photos if those are better? Also, am I ok adding the bits referring Beavis & the picture of the signs in that case, when those were Parking Eye and I'm in dispute with not-so-Smart Parking? Thanks.

PCN no:
POPLA code:

I am appealing the application of the fine for the reasons below:

• Lack of prominent signage
• No evidence of landowner authority
• Breach of the BPA Code of Practice on ANPR
• The charge is a penalty

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 here

In the Beavis case, the charge itself (in that case £85) 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 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.

streetview clips here

Here, the signs are sporadically placed, they are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. There is no sign which clearly indicates as in the ‘Beavis case’ the amount of fine (in large font). The signs blend into the wall which is of similar colouring. 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 here

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

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:

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:

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.

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

Breach of the BPA Code of Practice on ANPR.

It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN. The payment made for 4 hours would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.

I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 4 hour payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks. And the situation is fully within this operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already). To charge under these circumstances was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP. Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, the driver had no idea that secret camera data would later be used against him to bind him to a charge he knew nothing about and did not agree to. He thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing). Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:

The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis
This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.''And at the Supreme Court it was held at 14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''At 22, the Supreme Court explored Lord Dunedins speech in Dunlop and separated complex cases (Beavis) from ordinary contracts with a transaction and tariff: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedins four tests would usually be perfectly adequate to determine its validity.''

POPLA CODE: Clearly a charge out of all proportion to the tariff - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full correct registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument. The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.'' As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

Coupon-mad

Also, am I ok adding the bits referring Beavis & the picture of the signs in that case, when those were Parking Eye and I'm in dispute with not-so-Smart Parking?

Yes that's why the Beavis sign is in the template point about signage, because that case went to the Supreme Court. So, it follows that the Beavis case sign sets the high bar for a brief and very prominent parking sign with the actual £85 charge in the largest lettering and with signs all over the site.

You need to add pics to show the opposite is true in this case- and Streetview is fine. Always embed your own pics into that long appeal point about signs (don't upload separate links for the Assessor to have to flick through because you can imagine a busy/bored Assessor working from home - I think - might miss the point).

So embed your own Streetview screenshots and add wording to that appeal point, to say 'look...not like the Beavis case because...see screenshots of the lack of signs in reality here...' (obviously in a full sentence!).

Would they have found the payment - was the VRN similar enough? - and was it for 4 hours, because your copied appeal wording says this in the ANPR section, is this right?

and to explain why a charge was issued when they would indisputably have identified the matching 4 hour payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks.

Finally, I suggest the last two points need shorter paragraphing, it's a bit of a wall of text and very long paragraphs that just need breaking up to be more easy on the eye for the Assessor.

juniorelvis

Thanks for those points! Yes, it was for 4 hours. On the point about the registration, as I don't have the ticket, I don't know how close it actually was, so that's just a (justified?) guess.... Should I remove that? Thanks again.

juniorelvis

Hi Coupon-mad et al.

firstly, thanks so much for your help. I've been through the appeal again and added spme points particular to my case, talked about the lighting and the wrong registration entry a little more, could someone have a read and tell me what they think? If you put these three 'words' together and paste into your address bar you can see my PDF: goo.gl / LMDiFd

Enjoy your bank holiday
J

Fruitcake

juniorelvis wrote: »

Hi Coupon-mad et al.

firstly, thanks so much for your help. I've been through the appeal again and added spme points particular to my case, talked about the lighting and the wrong registration entry a little more, could someone have a read and tell me what they think? If you put these three 'words' together and paste into your address bar you can see my PDF: goo.gl / LMDiFd

Enjoy your bank holiday
J

You would be better off posting your draft here rather than ask posters to go and visit another website. That way people can comment, strikethrough, amend, and correct spelling and grammar where they think improvements can be made, and it's all in one place as well.

juniorelvis

Fruitcake wrote: »

You would be better off posting your draft here rather than ask posters to go and visit another website. That way people can comment, strikethrough, amend, and correct spelling and grammar where they think improvements can be made, and it's all in one place as well.

Good point, I think it's useful for someone to see the pictures so please do use that pdf link to see those. Here it is:


I am appealing the application of a fine for the reasons below:
• Lack of prominent signage
• No evidence of landowner authority
• Breach of the BPA Code of Practice on ANPR
• The charge is a penalty

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:

see pdf

In the Beavis case, the charge itself (in that case £85) 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:

see pdf

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.

Figure a – the view from the road adjacent to the car park (see pdf)

Figure b – the pay stations (see pdf)

As can be seen in figure a, the signs are sporadically placed around the perimeter of the space, they are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered – note the sign indicating ‘charges are in place’ is even pointing towards the street (figure a red box), not so that it can be read by anyone parking there (who will have already parked) and certainly not to be read by drivers as they drive into the car park, as both access lanes into the car park are available for ingress & egress, and a driver could use the one without the associated sign.

There is no sign which clearly indicates as in the ‘Beavis case’ the amount of fine (in large font). The sign indicating (figure b) the fine blends into the wall which is of similar colouring.
The lighting in the car park is such that it is mounted pointing outwards from the same wall as this signage (figure b), rather than positioned lights which may serve to illuminate the wall as well as the car park itself. In point of fact the position of the lighting would more than likely detract from the reading of the sign, not only failing to illuminate it properly but shining directly into the eyes of the dusk or night time car park user.

As regards the sign indicated in the figure b, 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 at dusk or at night, with the lighting situation described.

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(s) either.

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:

see pdf

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

see pdf

''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:

see pdf

''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 on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park.

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, 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, he 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:

see pdf

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 how the sign in figure b appeared on that date, at that time, from the angle of the pay-station user, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from that position and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


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

Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN. The payment made for 4 hours would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.

I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 4 hour payment, as stated in the original appeal to Smart Parking. The operator would have been in no doubt that the car parking was paid for, had they made the required checks. In any case, the onus is on the operator to show that the parking was not paid for, beyond any reasonable doubt, given the statements of the driver and passenger to the effect that a ticket for the entire period of the stay was dispensed and displayed. The fact that – reasonable to anyone with no ‘stakes in the game’ given the delay between parking and the postal notice - a ticket cannot be provided by the driver to establish which letter or letters were incorrectly entered is neither here nor there when sight of the VRN records that Smart Parking hold could immediately establish this.

The situation is undeniably fully within this operator’s control, in other words, there are technological improvements which would prevent the ‘false positive’ type of fine the operator is levying in this case. As cameras are used to record number plates entering and leaving then they could be connected to the ticket machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already). Far from helping the driver, the technology in use seems deliberately to try and prevent the input of a correct registration, in that a non-standard hardware keyboard (A,B,C…not Q,W,E,R,T,Y..) is used.

To charge under these circumstances was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP. Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, the driver had no idea that secret camera data would later be used against him to bind him to a charge he knew nothing about and did not agree to. He thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing). Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:


The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.
At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.

''And at the Supreme Court it was held at 14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''

At 22, the Supreme Court explored Lord Dunedins speech in Dunlop and separated complex cases (Beavis) from ordinary contracts with a transaction and tariff: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedins four tests would usually be perfectly adequate to determine its validity.''

POPLA CODE: Clearly a charge out of all proportion to the tariff - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full correct registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument. The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.'' This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique setup.