Smart Parking - Remained on site longer

hp2017

Complain to the Landowner of Astle Retail Park. A few months ago, I didn't actually purchase a ticket (new to the car park and thought it was free for gym users) and got to the stage of receiving debt collection letters. I complained to the landowner and after a few complaints she cancelled the PCN. Look on their website for a headoffice number and ask to speak to the landowner.

darkcloudi

Thanks for the responses, just read the sticky thread, was a bit in a panic mode last night coming from work so wasn't thinking straight and apologise everyone and @RedX for rushing Panic does that to me.

Looks like I only have two arguments one graceful period and the other for the ANPR entry. Think point 1 is the strongest considering there was no way exiting the gym without assistance from a member of staff (also will enclose this evidence). Not sure if I need point 2?

Should I state I regular park there and this is the first incident out of my control?
I am concerned that BPA suggest 10 minutes and I went over this by a minute, obviously this was no fault of my own. Not sure how POPLA will see this.

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.) Grace Period / Unreasonable
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.”
The driver was at the gym (Pure Gym) during the alleged incident and was unable to exit due to an IT glitch with the doors. The driver was unable to exit the Gym which led to the alleged overstay, this particular instance required the attention of a member of staff to let the driver out after 10 minutes due to the gym being short staffed and requiring time to exit the car park.

Evidence of this was provided to Smart Parking who responded to suggest regardless of the situation, payment should have been made for the 11 minutes overstay, knowing this was out of the drivers ability to exit the premises within a reasonable timeframe.

2.) ANPR system

Signage is unlit and not clear on what the grace period is or clear when the parking period begins. The ANPR evidence only shows time of entry and the amount of time spent at the car park and not the amount of time the car was parked.

The POPLA annual report 2016 states:

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 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.

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

darkcloudi

hp2017 wrote: »

Complain to the Landowner of Astle Retail Park. A few months ago, I didn't actually purchase a ticket (new to the car park and thought it was free for gym users) and got to the stage of receiving debt collection letters. I complained to the landowner and after a few complaints she cancelled the PCN. Look on their website for a headoffice number and ask to speak to the landowner.

Thanks for this info. I spoke to Astle Retail Park and advised them that Smart Parking are being unreasonable considering my overstay was due to not having the ability to exit the gym and not my own fault. The women I spoke to suggested she will look into this for me on Monday when she returns, I have emailed her the details of the issue. Hoping I do not need to go through the POPLA process but for the interim thought I better get a letter prepared just in case it does not work in my favour. I'm Mr Panic guy and if i'm not prepared I get stressed.

Still stressed now

The_Deep

Does this help?


http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html

Redx

always have these points in this type of appeal

GRACE PERIODS

SIGNAGE

all BPA CoP failures

any NTK errors

any POFA2012 failures

not the same as the BEAVIS case

time on site is not parking time

darkcloudi

The_Deep wrote: »

Does this help?


http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html

This covers point 2 (I've added an additional snippet of text on this)

Thanks

Redx

in point 1) you have only covered the exit grace period, not the entry grace period , 13.2 and/or 13.3

TWO grace periods apply , one before , to allow a driver to park up , read the signs , pay for a ticket etc, deemed to be between 5 and 10 minutes

13.4 covers exit times and is to be OVER 10 minutes, meaning 11 or more minutes to exit the area covered by the cameras , making a grand total of maybe 21 or more minutes, so 11 minutes is well within this timeframe

BOTH periods need pointing out to the assessor in point 1)

do not assume they will know about this and take it into account , they wont UNLESS it is in your appeal , so your appeal need to be expanded to cover it or it wont be taken into account

similarly, ALWAYS add a point about signage , plus the others I mentioned where they are appropriate

so

1) GRACE PERIODS - plural (not grace period - singular)

2) SIGNAGE

3) ANPR cameras (was 2) )

4)

5)

6)

etc

plus add a bullet point menu before the body of the appeal , detailing each point header , so an assessor can see what the grounds are and where they are in the main appeal

darkcloudi

Bit of a reshuffle (Tempted to move point 5 to 3 or 4 as not that looks more of a stronger argument?).
I'm going to attempt and get photos for point 2, the signage on site.
As for point 3, the photos Smart Parking sent me, you cannot make out what the time is in the small box but they make it clear themselves at the bottom, will this help in the appeal? Its kind of clear but need a magnifying glass or very good eyes.
Not sure if number 4 makes sense or required as it does state this in the BPA COP but I don't think its relevant?.

Thanks for looking

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 on the following grounds:
1) The minimum grace periods was not allowed by the operator
2) The signage was poor and not well lit
3) The ANPR system is neither reliable nor accurate, Time on site is not parking time
4) BPA COP none compliance
5) The Notice to Keeper (NTK) is not compliant with the POFA 2012
6) The Charge is not a genuine pre-estimate of loss, nor is it proportionate or commercially justifiable according to BPA guidelines.

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

The driver paid 2 hours parking and was at the gym (Pure Gym) during the alleged incident but was unable to exit due to an IT glitch with the doors. The driver was unable to exit the Gym which led to the alleged overstay, this particular instance required the attention of a member of staff to let the driver out after 10 minutes due to the gym being short staffed and requiring time to exit the car park.

Evidence of this (an email from the gym manager) was provided to Smart Parking who responded to suggest regardless of the situation, payment should have been made for the 11 minutes overstay, knowing this was out of the drivers ability to exit the premises within a reasonable timeframe.

2.) Signage was poor
Signage is unlit and not clear detailing the grace period and when the parking period begins.

The POPLA annual report 2016 states:

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 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.!

3.) ANPR system

The photograph evidence provided on the PCN are not clear detailing the date and time of the incident. The times captured do not represent parking time

BPA COP 20.5 states
When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.


4.)
Smart Parking have only provided premium rate number and have not detailed a none premium rate number as per BPA COP.

18.7 You must not offer just a premium-rate number. If you do have a premium-rate number, you must also offer a standard-rate number you can be contacted on.


5.) !Non-compliant Notice to Keeper – no keeper liability established under POFA 2012.
Smart Parking have failed to comply with paragraph 9.4 of Schedule 4 of the POFA 2012 Act in that it failed to give the Notice to Keeper to me within the “relevant period”.!

The alleged infringement occurred on the 14th June 2017 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated 4th July 2017 which is 20 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.!

Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted”.

Smart Parking would have been well aware of these facts when it took the decision to send out the Notice to Keeper under PoFA. Smart Parking have misrepresented the legal position in the full knowledge that there can be no keeper liability.


6.) No pre-estimate of loss –!not a comparable contract, location or situation as found in the!Supreme Court decision in the case of Parking Eye v Beavis!

The letter is labelled as a Parking Charge Notice but then goes on to describe a charge for “breach of contract”, and refers to the Supreme Court decision in the case of Parking Eye v Beavis as legally binding on all similar cases. I would submit that this is not a similar case, and can be distinguished as follows.

The contract entered into between the driver and Smart Parking is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment is made. This makes plain that the sum of £60/£100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable.!

As this is a simple financial contract any claim for damages for breach of contract must represent a genuine pre-estimate of loss. As noted above, Smart Parking failed to provide evidence of an amount of outstanding parking charges or ‘initial loss’ and therefore cannot show any costs consequent upon that ‘initial loss’, so it follows has not established that the charge is a genuine pre-estimate of loss for the alleged breach. Therefore I feel the charge notice is invalid.!

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist.!

This is in stark contrast to the present case where there was an economic transaction between Smart Parking and the motorist, and no restriction on the time of stay was made provided payment was made.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty, simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park.!

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis, the judgment in which is irrelevant in this situation.!

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.


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

Coupon-mad

Evidence of this (an email from the gym manager) was provided to Smart Parking who responded to suggest regardless of the situation, payment should have been made for the 11 minutes overstay, knowing this was out of the drivers ability to exit the premises within a reasonable timeframe.

Attach the email for POPLA to see.

Add in the wording from Kelvin Reynolds of the BPA, about the grace period and observation periods being two different times, one at the start and one at the finish. Search for his name to find his words on loads of other POPLA appeals which go into better details about why the grace period needs to allow for circumstances.

Remove #6 completely, nothing about loss or Beavis, please. POPLA don't get it.

Remove the end:

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

Regards
Sam

POPLa don;t do that, at all. POPLA will work only on what you give the as evidence, hence you need to make the grace period argument stronger and show them the email from the Gym confirming you were shut in! You need to lay that on thick, really clearly talk about what happened.

Redx

as above, make the grace period stronger by pointing out that an entry time of say 5 minutes is reasonable and an exit time of say 6 minutes is also reasonable, and within the BPA CoP

its no good quoting the BPA CoP unless you give a likely scenario that POPLA can see makes sense

if it was only about quoting the BPA CoP and no real time scenario then all you would write is

SEE THE BPA CoP and work it out for yourselves, but it doesnt work like that , so assume you are explaining it to a child

the driver was not stuck in the gym when they entered the car park, but it still took them maybe 5 minutes to enter and park up and read any signs , regardless of what happened at the end. so being imprisoned at the end led to an alleged overstay of say 6 minutes which 13.4 covers

and popla are not going to query either side on the evidence, so asking them to contact you makes no sense

and as mentioned , get rid of 6) because POPLA will swallow the BEAVIS decision due to it being at the SUPREME COURT in London