Smart Parking PCN - POPLA appeal

Tristanito

Hi, I wonder if someone can help us make a decision here: we parked our car in Fistral Beach in Newquay during a recent trip to Cornwall. My 3 year old daughter was sick in the car so I went to get a bottle of water whilst she and my wife remained in the car. We left the car park within 12 mins and we are now facing a £60 fine from Smart Parking which will go up to £100 if we don't pay by next week. I've already appealed with Smart Parking but the appeal was rejected on the basis that no matter how long we stayed there we should have bought a ticket. I did explain that it was an emergency situation and that in 12 mins we obviously weren't there for the beach but it doesn't make a difference to them. They provided us with a POPLA code but my question is is it worth challenging this given that I've already told them that I was the driver (unfortunately I read the Newbies thread too late and gave them that information...). Thank you very much for your help.

waamo

Fistral Beach crops up regularly here. Use the BPA (blue) template in the Newbie thread to appeal to POPLA.

Having admitted to being the driver is not fatal to an appeal as Smart get so many other things wrong such as POFA compliance, signage etc.

Quentin

waamo wrote: »

Fistral Beach crops up regularly here. Use the BPA (blue) template in the Newbie thread to appeal to POPLA....

Error in #2


That blue template is NOT a POPLA appeal!


But do read up on POLA appeals in the newbies faq thread near the top of the forum then construct yours and post it here for comments

waamo

Quentin wrote: »

Error in #2


That blue template is NOT a POPLA appeal!


But do read up on POLA appeals in the newbies faq thread near the top of the forum then construct yours and post it here for comments

Oops yes. Post 3 is what you want. Read it all though.

Tristanito

Thanks. So I've read through everything and I have a couple of questions before I proceed with my appeal draft:
- Unfortunately there was a parking sign there, which we didn't notice because of the situation we were in. It does mention a £100 fine. I'm not allowed to post a link on this forum, but the sign is visible in Google maps.
- I read in one of the POPLA appeal form in the Newbies thread that there is a grace period of 10 mins minimum for entering and leaving a car park without charges. We were parked there for 12 mins, does this still give us a chance?
- I also read that parking companies must acknowledge an appeal and respond within 14 days. Smart parking didn't acknowledge anything (in fact I had to call them on a 0845 number and ended up paying £4 of extra mobile phone charges and in the end no one picked up my call) and they didn't respond within 14 days, but 20 days (06/07 - 26/07).

Coupon-mad

Of course there were signs...there are always signs! But there isn't an entrance one (someone showed a Google Streetview link to this car park entrance, only the other day).

We always put the usual stuff into POPLA appeals including the one about dodgy signs (it is for them to prove) so please don't look for reasons not to use the usual templates, especially given that you have (like so many victims of these scams who come here) already binned the winning certainty of 'no keeper liability'.

12 mins can be argued as within the grace period, given the specific circumstances which you should explain to POPLA in your case. There are loads of grace periods POPLA appeals here, quoting Kelvin Reynolds of the BPA clearly saying that the observation period on arrival might take 5 - 10 mins or more for reasons not just including disability.

Search the forum for the keywords 'grace observation periods Kelvin Reynolds' and change it to 'show posts'.

You will be saying that you did not 'stay'. You did not enter into a contract to park and were on your way out within ten minutes (think about it) and it merely took a few minutes to leave onto the main road in a queue because cars can't leave this busy site in seconds.

- I also read that parking companies must acknowledge an appeal and respond within 14 days. Smart parking didn't acknowledge anything (in fact I had to call them on a 0845 number and ended up paying £4 of extra mobile phone charges and in the end no one picked up my call) and they didn't respond within 14 days, but 20 days (06/07 - 26/07).

Not only is that phone cost illegal, for a customer service line, but you really didn't have to phone the scammers because they HAD acknowledged your appeal if it was done online (there is an auto reply page when you submit, says 'thankyou'). That is clearly the acknowledgement; you could have just waited. It is not an appeal point.

So wish people would stop appealing saying who was driving. Such a shame, yet again.

Tristanito

This is great, thank you so much for your help. I will submit my draft over the next few days for review.

Tristanito

Here is my POPLA appeal, your feedback would be greatly appreciated before I go ahead and submit it. Many thanks.

POPLA Ref No.xxxxxxxx
I am the registered keeper of xxxxx and I wish to appeal a recent parking charge from Smart Parking and would be grateful if you would please consider my appeal for the following reasons:
1. The minimum grace period was not allowed by the operator:
The vehicle entered the car park at 15:19 and left at 15:31
British Parking Association Code of Practice 13.1 – 13.4 states:
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.
The above car was in and out of the car park within 12 minutes, which includes the time it took to drive down to the restaurant to buy a bottle of water for a sick child and drive back to the car park entrance.
2. The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.
In this case, we have an authorised user using the car park appropriately, there has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £100 (or £60 if paid promptly) fine is a conscionable amount to be charged whilst an authorised user visits a restaurant to buy a bottle of water for a sick child.
Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
3. Insufficient signage.
There are no signs from Smart Parking displayed at the entrance to the car park. The sign is positioned further inside the entrance and would only be visible to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. There may be a sign inside the car park but unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity i.e. buying a bottle of water for a sick child and leaving within minutes is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.
4. 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 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 Code of Practice 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
6. Failure to show evidence of reliable ANPR system
Also Smart Parking have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Smart Parking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.
5. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
If Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 20th June 2017, and the notice to keeper was received 16 days later on 6th July 2017.
6. Non-compliance with BPA code of practice
Failure of Smart Parking to follow the BPA code of practice, particularly in contravention of clause 22.8 of the British Parking Associations code of practice too which Smart Parking must abide states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it. The initial appeal was lodged online on Smart Parking’s site on the 6th July 2017, yet Smart Parking did not respond until 26th July 2017, so 20 days later, when they rejected the initial appeal.

Tristanito

Hi, just checking if someone has had a chance to review this appeal for us? Your help here is much appreciated! Thanks

Umkomaas

It's hardly surprising there's been no response. The wall of text you've presented is just difficult to read. To keep up with pace here most regulars are, of necessity, having to speed read. The whole thing needs proper paragraphing.

On a very cursory skim, I can't see a Landowner Authority/Contract appeal point.

Are there others from the NEWBIES FAQ sticky, post #3 also applicable, if so, copy and paste those in?

You need a numbered bullet point list of appeal point headers to open the appeal, so the Assessor can see at a glance what you're submitting.

Each full appeal point should have an emboldened numbered header, corresponding with the opening numbered bullet point list.

You must make this as easy as possible for the assessor (and us) to read.

Tristanito

OK, please see below, I hope this is easier to digest. There was already a landowner authority section in my appeal:

POPLA Ref No.xxxxxxxx

I am the registered keeper of xxxxx and I wish to appeal a recent parking charge from Smart Parking and would be grateful if you would please consider my appeal for the following reasons:

1. The minimum grace period was not allowed by the operator
2. Authorised user
3. Insufficient signage
4. No evidence of Landowner Authority
5. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
6. Non-compliance with BPA code of practice

1. The minimum grace period was not allowed by the operator

The vehicle entered the car park at 15:19 and left at 15:31

British Parking Association Code of Practice 13.1 – 13.4 states:
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.
The above car was in and out of the car park within 12 minutes, which includes the time it took to drive down to the restaurant to buy a bottle of water for a sick child and drive back to the car park entrance.

2. Authorised user

The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.
In this case, we have an authorised user using the car park appropriately, there has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £100 (or £60 if paid promptly) fine is a conscionable amount to be charged whilst an authorised user visits a restaurant to buy a bottle of water for a sick child.
Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.

3. Insufficient signage

There are no signs from Smart Parking displayed at the entrance to the car park. The sign is positioned further inside the entrance and would only be visible to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. There may be a sign inside the car park but unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity i.e. buying a bottle of water for a sick child and leaving within minutes is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

4. 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 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 Code of Practice 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
6. Failure to show evidence of reliable ANPR system
Also Smart Parking have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Smart Parking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

5. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

If Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 20th June 2017, and the notice to keeper was received 16 days later on 6th July 2017.

6. Non-compliance with BPA code of practice

Failure of Smart Parking to follow the BPA code of practice, particularly in contravention of clause 22.8 of the British Parking Associations code of practice too which Smart Parking must abide states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it. The initial appeal was lodged online on Smart Parking’s site on the 6th July 2017, yet Smart Parking did not respond until 26th July 2017, so 20 days later, when they rejected the initial appeal.