Smart Parking- NtK issued

Parky2017

Hi all, as you can imagine, I'm brand-new to the forum and would be very grateful for any assistance with regard to a recent Notice to Keeper invoice from Smart Parking.

Please go steady on me, as this is all new and uncharted territory for me. I've read and absorbed as much of the Newbies info as possible, during this brief period in which I must appeal against my Notice to Keeper.

I've started to formulate my reply, the first rough draft of which I have included below. I'd be very grateful for any constructive criticism/tweaks/corrections etc. I have not and do not intend to name the driver. My appeal centres on grace periods, and the fact that the ANPR system captures the vehicle outside the site itself (ie: not parked).

With thanks for your kind assistance and support.:T
_____________________________________________________________
Dear Sir or Madam,

Re: PCN No.****

I challenge this 'PCN' as keeper of the car.
There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

The burden of proof is on the Creditor to provide evidence of the time during which the vehicle is believed to have been parked. The Creditor has demonstrably failed to have done so. The ANPR system at this location records a vehicle in motion- not parked- and records a snapshot taken before the vehicle has even entered the site in question (as demonstrated by the roadside double yellow lines in the Entry photograph provided on the Notice to Keeper). The alleged timings are therefore hereby rejected.
Furthermore, I require evidence from the Creditor that the camera system’s time-stamp mechanism- and that of the ticketing machine- are correct and in absolute synchronicity.

A valid ticket was bought in good faith to cover the vehicle’s stay in the car park.
Note that there is no mention of an expiry time on the ticket itself, merely a timestamp displaying the issued date and time (**/**/** at **:** according to the ticketing machine). I include a copy of the ticket for your reference.

It is my understanding that certain other tickets printed on this machine actively do include an expiry time. I would therefore question the inconsistencies of its operation.

Grace period neither adhered to by Smart Parking, nor mentioned on signage.
A valid ticket (such as the one purchased for the vehicle for a stay of 2 hours) should allow for a grace period. If it is proven that the timestamp mechanisms on both the ticketing machines and the ANPR cameras are correct and synchronised AND that the (unprinted) expiry time of the ticket is **:**, then this is a mere 8 minutes before the alleged exit time, and not the expected 10. The alleged infringement (claimed by the Creditor on its Notice to Keeper)- based on the photographs alone- appears to be not more than a total of 15 minutes beyond the permitted stay, which includes both the entering and departing of a busy car park.

Note that a period of time was spent circling and looking for a space on entering the car park, on account of the volume of traffic, service vehicles and pedestrians visiting a popular beach on a sunny afternoon. All of the above, plus the acts of parking up neatly, walking to the meter as a party including toddlers and pensioners, and finding the correct meter change have inevitably added to the period at the commencement of the parked period.

Any motorist would find the above delays to be normal, expected, justifiable, and in any case not part of the period for which parking is being paid. I refer you to Parking Eye vs Hotchin in which the judge ruled that ANPR evidence only showed the vehicle’s time of entry and exit to the car park – not the time parked. Current signage in the car park only requires payment for times parked.

I refer you to the BPA’s Approved Operator Scheme Code of Conduct v6, with which it is expected that Smart Parking Ltd abides:

• 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

Signage failures
The cramped and unclear wording on the signage cannot be read from a moving car, and in any case, it is clear that Smart Parking is attempting to charge for a period which includes when the vehicle is in motion. The sign states that a fee is payable for the time spent "parked".
Furthermore, with regard to the car park's "Summer tariff", this remains open to interpretation, with no indication about when seasonal tariffs begin and end.

I request:

• Your Planning Permission proof from Cornwall Council for ANPR usage and for your signage.
• Your grace periods as agreed with the BPA.
• A copy of your Contract demonstrating your authorization to manage the site on behalf of the landlord.
• The cancellation of this Parking Charge Notice, or failing that, a POPLA code.

The Notice to Keeper
I contend that the notice to Keeper is non-compliant with Schedule 4 paragraphs 8 and 9 of the PoFA which stipulate the mandatory information that must be included. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
• The period the car was parked
• Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.


Please be advised that letters have also been sent to the following parties in order to highlight Smart Parking’s business practices:

• The landowner
• The Member of Parliament for the local area
• Local businesses

Umkomaas

The initial appeal is already written for you in the newbies sticky (the one in blue text). Embellishing that is of no benefit to you; it will be rejected, so don't waste energy thinking that anything extra you write at this stage will produce a different result.

PPCs are in the business of taking and making money - period. 'Managing' car parks is what they do in order to 'legitimise' taking money off people, nothing more, nothing less, so why do you think they will change that just for you? They will provide you with none of the documents you've asked for - and you won't paint them into any corner at this stage by asking for them - that comes later, so you must keep your powder dry until you're at the POPLA stage.

Use the template as is, get your POPLA code with your rejection, then put the effort in with the legal and technical stuff in working up your POPLA appeal .......... and have a real prospect of getting this cancelled.

Parky2017

Ah, so I fell at the very first hurdle! Nevertheless, I'm seriously grateful for your sage advice Umkomaas, thank you.

I don't expect to have my invoice cancelled by Smart Parking at the first attempt. I used elements of the blue-text first-step appeal you referred to, but because my grounds for appeal were not so centred around the signage-lettering, I thought I ought to introduce my case-specific reasons, which I'll be bringing up later with POPLA in any case.

Given the nature of the blue-text newbie template, is it therefore normal to "switch tack" from an initial reliance on signage and lettering (in step 1) to a whole raft of other defence points raised to POPLA (in stage 2)?

OR

Is it frankly irrelevant whatever one enters during the first-stage appeal to Smart Parking?

(Additionally, I wasn't entirely confident I could pull off the warnings to counter-sue that feature in the last part of the blue-text template).

If anyone is able to reassure me on the above, I'll gladly follow the advice given by Umkomaas. In any case, my huge thanks again for your very welcome support.

The_Deep

(Additionally, I wasn't entirely confident I could pull off the warnings to counter-sue that feature in the last part of the blue-text template).

If anyone is able to reassure me on the above,

I do not understand this, can you please clarify.

Parky2017

The_Deep wrote: »

(Additionally, I wasn't entirely confident I could pull off the warnings to counter-sue that feature in the last part of the blue-text template).

If anyone is able to reassure me on the above,

I do not understand this, can you please clarify.

Thank you. I can certainly clarify. I was not confident about using the following text in my first-step appeal, because I have never used similar wording in the past. If it is the case that everyone entering a stage one appeal to Smart Parking should and can confidently enter the following, then I will happily follow suit.

(Paragraph from Newbies Sticky template letter for Stage One appeals to BPA members follows):

Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

Umkomaas

Firstly, you could appeal on the basis that the farmers pig didn't have a curly tail. You would be rejected just the same and, hey presto, here comes your POPLA code. It's at POPLA you can get this permanently kicked into the long grass.

Why do you think that their signage is fully compliant - do you know what it needs to be fully compliant with? If so, have you undertaken a point by point analysis of it against the requirements? Remember the signage is their contract with you - and they base a huge part of their case on this basis. But if you're sure - but you'll never convince me - that their signage (contract with you!) is perfect, leave it out.

In terms of a counterclaim. It is early days in the latest strategy to put PPCs 'on the back foot', making them think twice (even thrice) about willy-nilly mass production of tickets when they haven't got the basics in place to legitimise this. They access your Data Protection Act-protected personal data from the DVLA based on the proposition that they have all their ducks in a row.

These ducks include:

No keeper liability, including Notice to Keeper errors (PoFA 2012)
The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
No Contract to manage parking
No Locus Standi
Signage
Consumer Rights Act 2015
BPA Code of Practice breaches

Breaches in any one of them might just open the door to a counterclaim for a breach of the DPA Principles in accessing your data from the DVLA. The High Court in two binding cases has awarded up to £750 for DPA breaches.

These are early days in the strategy for the private parking skimdustry - there are likely to be some trailblazer cases in the coming months - so what you are doing is now putting your marker down, which you may (or may not) come back to at a later stage. They can't then say that they haven't been warned.

And the beauty is that, legally, you have 6 years to press your case. Let them sweat on it (as they currently make motorists sweat that they aren't going to issue legal proceedings against them in the next 6 years).

For every action there is (ultimately perhaps in this scenario) an equal and opposite reaction. This is a fightback forum, after all!

Parky2017

Thank you once again for your insight and input Umkomaas. I am very, very grateful indeed for your robust support.

You're right to question why I think their signage is fully compliant. I don't imagine it to be compliant for a second. But on the other hand, I can't immediately prove it isn't either!

In any case, over the course of my campaign, I expect that I will end up using signage as one of my key arguments, particularly as there are no signs to mark the entry point onto private land (as claimed otherwise by Smart Parking), and that the motorist is timed- and therefore billed- from a start-time at which he hasn't even entered the private land...

As you suggest, I will use the blue-text Stage 1 letter template for my initial appeal to Smart Parking. Then later I plan to use this thread to help me formulate my full defence rebuttal for POPLA. :beer:

Redx

you dont have to prove that it isnt , they have to prove that IT IS , if it is queried

ie:- its their job to prove their case (same applies in criminal courts , hence the "no comment" ideas by the defendant)

you only have to win on one appeal point for a dismissal of the claim, they have to win on every one in order to win outright

The_Deep

It could be two or three years before a motorist wins a DPA breach case against a PPC. When that happens you could jump on the bandwagon, so warning them now will ease your path.

Parky2017

Thanks kindly for the welcome support, Umkomaas, Redx and The Deep. I'm pleased to say that I have submitted my first-stage appeal (as per the newbies' thread recommended response) and I await my rejection and POPLA code.

I'll update this thread in due course, calling upon the invaluable guidance of forum members. I've got a feeling I'm gonna need it, come the POPLA stage...

DoaM

In the meantime, get reading post #3 of the NEWBIES thread to get familiar with POPLA appeals.