Appeal against PCN, Smart Parking..

jugulator

Hi All,
New here. I have been reading the newbie thread. Thought will discuss my case here.

I received PCN notice from Smart Parking out of the blue one day, stating that we underpaid for the parking. This was a car park in a retail park. This park has been recently taken over by smart parking. Previously there used to be a barrier where you take ticket and then you pay for the time using the ticket when leaving. When I visited last time, the barrier was removed. I went in and parked. Initially I thought there was no need to pay as there was no barrier. After sometime I noticed others paying, so I went and paid for 1 hour. We left the car park before 1 hour from the time of purchase of the ticket, as we thought we have one hour from the time on the ticket as is the case in most pay and display car parks. It was only when I received the PCN that we realised that this was ANPR car park and you pay for the time. We were not aware of this and we paid one hour and left before 1 hour expired from the time on the ticket. The PCN letter says that we stayed in the park for 83 minute but paid for only 60 minutes.

I was not happy to pay this as I paid in good faith for 1 hour. I appealed to them with a copy of the ticket saying that I had paid which got rejected. Then I appealed through POPLA and I received evidence from them yesterday. I only came across this thread after appealing to POPLA. Reading through this thread, looks like I have already blew the case in most part. I have already revealed who the driver was. Also my appeal was essentially stating that I have paid for 1 hour and left before 1 hour expired from the time of purchase. They have sent me a very long evidence letter with pictures of the sign boards etc. I will attach the letter.

I need to send my comments against the operator comments now. I wonder if I have any chance in recovering the case. I think the only chance I have now is, as I essentially appealed stating that I didn't know the new rules of the park, I could say that the signs were not clear. In fact the "terms and conditions" sign is too small to be readable. Even in the evidence they sent it is very illegible.

I would appreciate any help. Thanks in advance.

Coupon-mad

This would have been soooo easy for the registered keeper to win hands down (next time!).

I think the only chance I have now is, as I essentially appealed stating that I didn't know the new rules of the park, I could say that the signs were not clear. In fact the "terms and conditions" sign is too small to be readable. Even in the evidence they sent it is very illegible.

I agree.

In your comments, start by saying 'These are my comments on the evidence' (DO NOT SAY IT'S YOUR APPEAL!) then keep them brief but remind POPLA that the t&cs changed recently and Smart have failed to evidence that they adequately alerted drivers to the changes and new restrictions, nor that ANPR as being used to time a car from the point of arrival, rather than the point when the ticket was paid for.

Then say this (word for word, because it's copied from POPLA's own template decisions):

I am aware now, that POPLA is an evidence-based appeals service, and all appeals are decided using the evidence and statements from the appellant and operator and the BPA Code of Practice. When assessing an appeal the burden of proof lies with the operator and it is the operator’s responsibility to provide sufficient evidence in rebuttal of the appellant’s statement.

In my appeal, I said clearly that I didn't know the new rules of the park. That is Smart Parking's fault, for failure to prominently add extra signs to alert drivers to the changes.

Section 18.11 of the BPA Code of Practice states: “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes”. Consequently, since the appeal did state that I was not made aware of the new restrictions on arrival, nor saw any signs telling me that the time started at the road entrance, it is reasonable to expect the operator to provide evidence that demonstrates that the signage was in place before the alleged contravention, and also provide evidence that local drivers have been allowed a reasonable grace period to become familiar with the changes.

They suggest that 'the site went live on the 23rd August 2016' but have shown no proof at all for that statement, nor whether the current restriction and ANPR regime is in fact newer than that (which I contend it is). The dates on the photos appear to have been added afterwards. No such evidence has been shown by this operator, indeed the terms are illegible in the photographs so there is nothing to show that the terms complied with the BPA CoP, or were adequate notice of a parking charge in a car park previously run with a barrier entrance.

jugulator

Case Summary- 851******
On the 06/07/2017 the vehicle with registration ******* was captured by the cameras at ASTLE RETAIL PARK, WEST BROMWICH entering and exiting the car park.
The car park in question is an Automatic Number Plate Recognition (ANPR) camera system and Pay by Plate monitored car park. Every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by. When the vehicle enters it creates one image which will then be paired with the subsequent exit image. The system then compares the time a vehicle has been on site with the amount of parking time purchased using the Vehicle Registration Mark (VRM). If the vehicle overstays the paid parking time or there is no payment for the vehicle registration which was captured by the ANPR, a Parking Charge Notice will be created and sent out to the registered keeper.
In the Appellants appeal to POPLA the Appellant states that they had purchased a ticket for 1 hour and
they had left the premises before the time of the ticket expired. The Appellant states that they left the
car park at 15:12 as per the PCN notice they received and it appears there was some delay in purchasing
the ticket after entering the park. The Appellant states that this was because it was busy to find a spot,
there was a queue at the machine and there were some struggling with the payment machine. The
Appellant has stated that this is a flawed system which appears to be deliberate so that can snatch
money from people. The Appellant states that the PCN claims that they overstayed but this was due to
the delay in getting a ticket which was not their fault.
We would like to clarify that this Parking Charge Notice was issued for insufficient paid time. The contravention of insufficient paid time is issued when there is no payment or there is an underpayment for the vehicle registration mark. As there was an underpayment for the VRM BK165****, the PCN was issued correctly for insufficient paid time. We can further confirm the Appellant paid for a total amount of 60 minutes, however the vehicle was parked on site for a total of 83 minutes, therefore over staying a total of 23 minutes. It is the responsibility of the Appellant as a motorist to ensure they purchase a valid ticket for their full, correct vehicle registration mark and for the duration of their stay when using this car park.
The site in question is ANPR operated, every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by, which is why it is important that motorists enter their full, correct registration so this can be calibrated to the images of their vehicle obtained from the ANPR cameras to determine whether the vehicle did in fact pay for adequate or inadequate time. The contract forms when the vehicle enters the car park and not when the ticket is purchased from the payment machine. The Appellant has stated that they had remained on site for a further 23 minutes after purchasing their ticket so we would question why the Appellant did not purchase a ticket to cover the full duration of stay before exiting the car park. As the driver failed to make payment to cover their full duration of stay on site and overstaying their paid time 60 minutes by 23 minutes, the parking charge notice has been correctly issued.
We would like to clarify that it is up to the motorist to take into consideration their time on site. Sufficient time is taken in to consideration for driver’s to enter the car park, read the terms and conditions, and decide whether to purchase a ticket or leave the car park. The terms and conditions of the site clearly state “By parking or remaining in this car park you agree to the terms of parking contract (if you don’t agree to them then please leave within 10 minutes of entry). Had the Appellant acknowledged the signage in the car park they would have been aware of the terms and conditions of the site. The signage on site clearly states “motorists must enter their full correct vehicle registration
when using the payment machine” and “failure to comply with the terms and conditions will result in a parking charge of £100.00”. Therefore, as the driver failed to purchase a valid ticket to cover the full duration of their stay and remained on site for 83 minutes, the driver incurred the parking charge correctly.
As the signage clearly displays on site, “Motorists must enter their full correct vehicle registration when using the payment machine.” We would like to clarify that the payment machines do not have the knowledge to know if a vehicle registration is being entered correctly or not or the amount of time the vehicle has been on site, which is why it is important that motorists enter the full and correct VRM for the full duration of stay so the payment can be assigned to the correct vehicle. As the Appellant failed to cover the full duration of their stay and remained on site for 83 minutes, and therefore overstaying their paid time of 60 minutes by 23 minutes, the parking charge notice has been correctly issued.
We can confirm the site went live on the 23rd August 2016, therefore the Appellant had sufficient time to become familiar with the new requirements on site. The BPA Code of Practice October 2015, paragraph 34.4, states drivers must be given advance notice of all parking charges before they enter into the contract for parking services. There are several signs situated around the car park that advise of the terms and conditions and we can confirm all signage on site is BPA approved. All signs are set to a standardised height, regulations and written in clearly and intelligible language; as per the BPA requirements. There is no ambiguous language or jargon on any of the Smart Parking signs at this site. Additionally as per the BPA Code of Practise 2015, paragraph 13.2, states that 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, to which we can confirm there was sufficient time allowed for the Appellant to acknowledge the signage, had they done so, then they would have been aware of the terms and conditions of the site.
It is important the driver purchases sufficient time for their stay on site to avoid incurring a parking charge notice. We would also like to clarify that the signage states “payment can be made at any time throughout the duration of your stay” and therefore the motorist could have purchased another ticket from the payment machine to cover their overstay duration for 23 minutes before exiting the car park. As the driver failed to do this and remained on site for 83 minutes resulting in a 23 minute overstay, the parking charge notice has been issued correctly.
With regard to the amount of the charge, a pre-estimate of loss is no longer a requirement by the BPA as of October 2014. As per the BPA guidelines (October 2015) the amount must be proportionate and commercially justifiable. The signage around the car park clearly advises that any motorists parked in breach of the advertised terms and conditions may incur a PCN. This has always been clearly distinguished by Smart Parking Ltd as a PCN and has never been called or disguised as anything else. The charge takes into account the commercial costs incurred in pursuit of a motorist who has breached the advertised Terms and Conditions.
Please also be aware that on the 4th November 2015 The Supreme court dismissed Mr Beavis’s appeal by a majority of six to one, and declared that the charge appealed does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.
The £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Furthermore, the charge was neither extravagant nor unconscionable,
having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.
Please see this link for a summary of the Judgment; supremecourt.uk/cases/docs/uksc-2013-0280-press-summary.pdf[/url]
Furthermore, Smart Parking Ltd clearly display the reasons in which a parking charge notice can be issued, stating “Please purchase a parking ticket for the duration of your stay from the payment machine” and “failure to comply with the terms and conditions will result in a parking charge of £100.00" therefore as the driver failed to cover their full duration of stay remained on site for 83 minutes resulting in a 23 minute overstay which has breached the advertised terms and conditions the parking charge has been correctly issued.
The BPA Code of Practice October 2015, states drivers must be given advance notice of all parking charges before they enter into the contract for parking services. There are several signs situated around the car park that advise of the terms and conditions and we can confirm all signage on site is BPA approved. Please be aware all signs are set to a standardised height, regulations and written in clearly and intelligible language; as per the BPA requirements. There is no ambiguous language or jargon on any of the Smart Parking signs at this site.
The driver entered the site at 1:48:57pm and exited the site at 3:12:07pm. The driver’s total duration of stay was 83 minutes. As the signs clearly state “Parking tariffs apply 24 hours Monday to Sunday”. The driver therefore failed to comply with the advertised terms and conditions and this confirms the Parking Charge Notice was issued correctly.
There are various signs located around the site including entrance signs that states the terms and conditions of the site. The signs do state failure to comply with the advertised terms and conditions will result in a parking charge notice of £100 discounted at £60. The terms and conditions are clearly advertised stating in which circumstances a parking charge notice may be issued. Had the driver acknowledged the signage on site they would have
been aware of the terms and conditions.
The car park is private land and the owners allow access to the public on condition that they park according to the advertised terms and conditions, the signs warn that non-compliance may result in a parking charge notice. Persons entering the car park are, in effect, agreeing to the terms and conditions and if they park in breach of the terms and conditions the landowner has a right to make a charge. The terms and conditions of the car park are requested by our client and Smart Parking Limited as an agent enforces these.
In light of the above and evidence enclosed. Smart Parking Limited have decided to uphold the parking charge notice.
Overall as the driver failed to purchase a valid ticket against their full, correct vehicle registration, this
confirms the Parking Charge Notice was issued correctly and in accordance to the terms and conditions
of the site. It is clearly stated on the signage “motorists must enter their full correct vehicle registration
when using the payment machine”. This further confirms the Parking Charge Notice was issued
correctly and in accordance with the advertised terms and conditions.
British Parking Association’s (BPA) Code of Practice. Within Section 13.4 of the BPA Code of Practice, it
states “the Grace Period at the end of the parking period should be a minimum of 10 minutes.” We can
confirm the grace period at the site is 10 minutes. Based on the evidence provided, it is apparent that
the driver remained on site for 83 minutes and so has exceeded the minimum of 10 minutes as stated
within Section 13.4 of the BPA Code of Practice.
Parking charge notice and any notes

The Parking Charge Notice was issued to the registered keeper due to failing to purchase a valid ticket for the duration of their stay from the payment machine, therefore incurred a Parking Charge Notice correctly.
Registered keeper details and liability trail
As of the 11th July, 2017, DVLA confirmed that Mrs ***** was the registered keeper of the vehicle. ******* appealed sating “I” as the driver on the date of contravention.
Original representations and notice of rejection
All representation was made by the registered keeper Mrs ****** to Smart Parking Limited and by ****** to POPLA. The Appellants appeal was unsuccessful, and rejected by Smart Parking Limited on the 8th August, 2017.
Images and Plans
There are numerous signs located around the site that inform motorists of the advertised terms and conditions. The terms and conditions clearly state “Parking tariffs apply 24 hours Monday to Sunday” and “failure to comply with the terms and conditions will result in a parking charge of £100.” As the Appellant has failed to purchase a ticket for the duration of their stay on site, the Appellant has therefore breached the terms and conditions and incurred a Parking Charge Notice correctly, as per the signage. The BPA Code of Practise 8.3 Specific parking-terms signage tells drivers what the terms and conditions are, including the parking charges. The signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs are conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing the detailed terms and conditions must be at least 450mm x 450mm. which smart parking limited signs are.
Other evidence
Smart Parking Limited have enclosed the payment system confirming the Appellant failed to purchase a valid ticket against their vehicle registration and full duration of stay. Therefore the PCN was issued correctly

jugulator

Above is the evidence they send to POPLA.

Thanks Coupon-m for quick reply. On their letter they say they have been operating on site from August 2016, which may be the case, although I thought I went there few months ago. If they have been operating there for over a year, could we still argue the case like you mentioned in post 2?

Coupon-mad

I've just edited my suggested wording to throw some doubt on that too, if they've not evidenced it, you can question the lack of evidence to support their statement.

Keep the comments short, to fit in the POPLA Portal.

If you lose (and you might well do) we've always seen off Smart Parking small claims without a hearing, they tend to fold when they see they haven't scared a victim into paying.

Cue RyanDavis whathisface (a poster who has repeatedly given the game away which side of the fence they sit) coming here to pretend he's a consumer, and unrelated to Smart Parking.

jugulator

Thanks for the comments.

You state, to keep the comments short but on the newbie guide it says to write deliberately long letters such as this:

forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341

Is it better to keep it short or elaborate as in the above link?

Thanks

KeithP

jugulator wrote: »

Thanks for the comments.

You state, to keep the comments short but on the newbie guide it says to write deliberately long letters such as this:

forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341

Is it better to keep it short or elaborate as in the above link?

Thanks

When writing POPLA appeals, keep it long.

When writing comments on the PPC's evidence to POPLA, make it fit in the POPLA box.

There should be no confusion.

jugulator

Ok. thank you!

Coupon-mad

KeithP wrote: »

When writing POPLA appeals, keep it long.

When writing comments on the PPC's evidence to POPLA, make it fit in the POPLA box.

There should be no confusion.

Spot on.

POPLA don't seem to like long comments that re-state the appeal again, so we play this game their way at this point.

jugulator

Hi there
Wonder what usually happens after one comments on the evidence. I commented on 17th. I have not received any reply yet. Is it like the operator has 7 days to comment and if not popla makes the decision based on the evidences available?
Thanks.

Coupon-mad

The operator doesn't get to see your final comments.

It's now merely waiting in the queue for an Assessor to pick it up, but you only commented on Sunday and this is mere 4 working days later.