Smart Parking - Remained on site longer

darkcloudi

Here's my first attempt at a letter (I'm not very good at it)

On 7th July I received a Notice to Owner from Smart Parking alleging a parking offence on 14th June, and demanding a charge to be paid. My appeal to the Operator, Smart Parking was rejected on 24th July 2017. I am the registered keeper of vehicle reg XXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:

1. Unreasonable as due to an IT glitch with the door I was unable to exit the Gym which meant I overstayed by 10 minutes, as I required the attention of a member of staff to let me out. Evidence from gym manager attached.

2.) Notice to keeper not compliant with the protection of Freedoms Act 2012

3.). The Charge is not a genuine pre-estimate of loss, nor is it proportionate or commercially justifiable iaw BPA guidelines.


1.)
The British Parking Association code of practice 13.4 states:
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.”

2.)
Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Smart Parking have failed to fulfil the
conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

The notice must be given by
(a) handing it to the keeper, or leaving it at a current address for
service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
The applicable section here is (b) because the NTK was delivered by
post. Furthermore, paragraph 9(5) states:
’’ The relevant period is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

I appreciate you taking the above into account during your objective considered assessment.

Please do not hesitate to contact me should you require any further information or clarification

Regards
Sam

Email below from manager that will be forwarded (this was sent to Smart Parking who weren't Smart):

Hi Sam

Thank you for your email.

I can confirm that on the day of 14th June, we (PureGym) were experiencing difficulties with all pin access temporarily due to IT issue out of our control. This resulted in staff having to let members in and out the gym and on this day in question, Sam had to wait 10 minutes for a member of the team to let Sam out due to us being short staffed.

Apologies for any convenience caused and if you have any further queries, please feel free to get in touch.

darkcloudi

Coupon-mad wrote: »

You didn't know that though...the signs don't say that (and would an average driver know?!). It is unreasonable.

I've used the gym and parking for over a year and a half so not sure if I can use that as evidence?

Redx

check post #3 of the NEWBIES sticky thread for examples of POPLA appeals

the NOT A GPEOL point wont wash since BEAVIS lost almost 2 years ago

and you did not add in GRACE PERIODS AS A COMPLETE POINT (as POINT #1)

I really do suggest that you read half a dozen FISTRAL BEACH popla appeals first , as its as if you ignored posts #3 and #4 , and rushed it too

Coupon-mad

darkcloudi wrote: »

I've used the gym and parking for over a year and a half so not sure if I can use that as evidence?

Are you saying that when you pay for your two hours that you KNOW it starts from driving in the entrance? Even though the P&D ticket doesn't say that and nor do the machines? Any average driver think that the 2 hours was parking time.

darkcloudi

Coupon-mad wrote: »

Are you saying that when you pay for your two hours that you KNOW it starts from driving in the entrance? Even though the P&D ticket doesn't say that and nor do the machines? Any average driver think that the 2 hours was parking time.

True, I guess I still don't know how that works for this retail park. Thanks

Coupon-mad

Exactly - you pay for two hours parking.

Huge shame you've already said who was driving in the first appeal and blown some toes off - a slam dunk win beckoned at the start, for a registered keeper appellant at POPLA v Smart Parking. So disappointing this happens every day on here.

darkcloudi

How about now? I've used the template and edited where required. What GPEOL? Not sure how to improve the formatting
Dear Sir/Madam,

Re: Parking Charge Reference number![xxxxxxx]!!Vehicle registration:![xxxxxxxx]

I am the registered keeper of the above vehicle and have received the above demand from Smart Parking

My appeal to Smart Parking was rejected on 24th July 2017 and they gave me POPLA code![xxxxxxxxx].

The basis of my appeal is:

1) The!Charge is not a genuine pre-estimate of loss
Their sign states the charge is for ‘not fully complying with the conditions’ so Smart Parking must prove the charge to be a genuine pre-estimate of loss.
• As parking was paid for, there can be no loss to Smart Parking, and therefore no loss flowing from the parking event.
• Smart Parking cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach.
• There is no loss flowing from this parking event because the car park was no-where near full.
• Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event.! Smart Parking would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
• Smart Parking cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a ‘fishing licence’ to catch motorists and some arrangements where they have pay and display, and others which are free car parks.
• The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Smart Parking cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned ‘commercial justification’ statement they may have devised afterwards (since this would not be a pre-estimate):
• The British Parking Association Code of Practice uses the word ‘MUST’:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.”

2) Lack of standing/authority from landowner
Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2!dictate!some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent).!Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that!Smart Parking are entitled to pursue these charges in their own right.
I require!Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for Smart Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

3)!Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
’18.1.3!Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed to low to read, is far from ‘transparent’.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

4) The ANPR system is unreliable and neither synchronised nor accurate
Smart Parking ANPR records show photos of a car driving in and out. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Smart Parking have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all then it was not prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition, I question the entire reliability of the system. I require that Smart Parking 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 my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require Smart Parking to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common “time synchronisation system”, there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so “live” is not really “live”. Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR “evidence” from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Smart Parking to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

5.) Grace Period
The charge that was levied is unreasonable for overstaying in the car park for 11 minutes. British Parking Association code of practice 13.4 states:!
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.”

During this visit an IT glitch at the premises (Pure Gym) meant the doors would not open therefore I was unable to exit the Gym which led to the overstay, this particular instance required the attention of a member of staff to let me out after 10 minutes. Evidence of this was provided to Smart Parking who responded to suggest I should of paid the extra charge, knowing this was out of my ability to exit the premises.


6.)
Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Smart Parking have failed to fulfil the!
conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-!

The notice must be given by
(a) handing it to the keeper, or leaving it at a current address for!
service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
The applicable section here is (b) because the NTK was delivered by!
post. Furthermore, paragraph 9(5) states:!
’’ The relevant period is the period of 14 days beginning with the day after that on which the specified period of parking ended’’!

Conclusion
I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused as parking was paid for, and where the bays are not full. I put Smart Parking to strict proof to justify that their charge, under the circumstances described.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Yours sincerely,

Redx

1) is gpeol , or in this case not a gpeol

as I said, you cannot use that since BEAVIS lost at the Supreme Court in 2015 (you need to look up BEAVIS as you clearly have no idea about his case, despite the publicity)

you seem to be using old templates due to the fact that you have included GPEOL

and we have already told you more than once that CLAUSE #13 GRACE PERIODS (read the BPA CoP) is item number 1) in any appeal , not number 5)

as I said, you are rushing it, plus you are expecting us to tell you the same things over and over and over again (ridiculous)

once should be enough (and yes I know you are new, but its no excuse for having to be told more than once)

please try again

Guys_Dad

Add this extract from the POPLA annual report 2016 http://www.popla.co.uk/docs/default-source/default-document-library/popla-annual-report-2016.pdf?sfvrsn=2


In an ANPR controlled car park where no statement on the signs indicates that the parking
period begins on entry to the car park, as opposed to when a vehicle parks, we may discount (ignore)
the amount of time between entry and parking when calculating the grace period at the end
of the contract. This is because the average motorist would assume that a period of parking
begins when they park the vehicle, and not when they enter the car park.

Clearly you needed to drive round to find a space.
But your appeal is an absolute mess - sorry.

Point 1 - GPEOL died with Beavis (look it up)
Point 6 - covers indemnity for the Registered keeper. You have admitted in your appeal to the PPC that you were the driver, as you do in point 5.
Point 5 is your strongest point here - make it number 1 with the suggested addition I made above.

I am sorry but haven't the time to redraft for you but please, please don't send that appeal as it stands.

pappa_golf

look this is simples ,

you enter car park "click goes the camera
you priceed to by time "parking timer starts"
your return to car 129 mins later (paid parking finished
you drive out thru exit "click of camera" ,

5 mins to find space on entry , and a minimum of 10+ upon end of paid parking
max time ALLOWED ON SITE by BPA is 135 mins