SmartParking ANPR draft appeal

Newbie1953

Hi, everybody, please can I ask for advice on the following POPLA appeal?

I'm prefacing the whole thing with:

POPLA Verification Code
Parking Charge Notice code
Vehicle Registration
Date of alleged contravention
Location
Vehicle Entering Site picture timestamped
Vehicle Exiting Site picture timestamped
Parking Receipt issue timestamped
Parking Receipt expiry timestamped

These are just my individual grounds so far - I still need to add boilerplate about inadequate signing, proof of contract with owner, planning permission of cameras, maintenance of cameras, etc, etc

To: POPLA

Dear Sir or Madam,

WITHOUT PREJUDICE

I am the registered keeper of the vehicle referenced above. I wish to appeal against the Parking Charge Notice issued by Smart Parking referenced above on the following grounds:

a) Grace Periods: violation of BPA code of practice

b) No evidence of parking times

c) Notice to Keeper: violation of POFA schedule 4 requirements

d) Unreasonable interpretation of English word “parking”

Details

a) Grace Periods: violation of BPA code of practice

I attach a copy of the receipt issued by Smart Parking on payment. This clearly shows a payment of £1.50 to cover a period of two hours parking, beginning and expiring at the times printed (according to their time stamps).

For your convenience, I quote from a document entitled “BPA Approved Operator Scheme, Code of Practice, Control and enforcement of parking on private land and unregulated public car parks , Version 6 - October 2015”, paragraph 13, Grace Periods.

Paragraph 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.
Paragraph 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.

According to Smart Parking’s own evidence, the earliest that the vehicle can be assumed to be parked is the time when a payment was made and the receipt itself issued. By Smart Parking’s own timestamps, this was clearly within a reasonable ‘grace period’ of entry.

Referring to the POPLA Annual Report 2016, page 11, “Grace periods”, the terms and conditions posted at the car park mention “Car park monitored by ANPR systems”, and contain “no statement on the signs indicating that the parking period begins on entry to the car park, as opposed to when a vehicle parks.” I request that you discount the time between entry and payment, as described in your Annual Report.

Smart Parking offer no evidence of the time at which parking ceased, but the photograph of the vehicle exit is timestamped less than 10 minutes after the expiry time printed on the receipt. Clearly, the vehicle had ceased parking before this time, and equally clearly, Smart Parking has failed to allow a minimum Grace Period of 10 minutes at the end of the parking period.

This failure violates the requirements of the BPA Code of Practice, which should invalidate the Parking Charge Notice.

b) No evidence of parking times

The Parking Charge Notice referenced above does not specify the period of parking alleged by Smart Parking. The only times referenced are the times of the vehicle allegedly entering and exiting the car park. Clearly, the vehicle is not parked at those times. No evidence of the times of parking or ceasing to park is given.


c) Notice to Keeper: violation of POFA schedule 4 requirements

The Protection of Freedoms Act 2012 specifies, in schedule 4, a prescriptive set of requirements that must be satisfied in order to claim unpaid parking charges from the keeper of the vehicle (i.e. me). For example, the right conveyed by paragraph 4 is limited in this case by paragraphs 5, 6, and 8 (and others).

The Parking Charge Notice referenced above falls short of these requirements, for example by
i) failing to “specify … the period of parking to which the notice relates” (paragraph 8.2.a),
ii) failing to “inform the keeper that the driver is required to pay” (paragraph 8.2.b),
iii) failing to “state that a notice to driver … has been given” (paragraph 8.2.c),
iv) failing to “state that the creditor does not know both the name of the driver and a current address for service for the driver” (paragraph 8.2.e),
v) failing to “warn the keeper that … the creditor will … have the right to recover from the keeper” (paragraph 8.2.f)

Since the Parking Charge Notice does not conform to the requirements of POFA schedule 4, it cannot be relied upon to claim unpaid parking charges from the keeper.

d) Unreasonable interpretation of English word “parking”

Smart Parking appear to regard the entire period between entry and exit timestamped photographs as a period of “parking”.

Popular usage of the verb “park” is given by, e.g. Collins English Dictionary as “When you park a vehicle or park somewhere, you drive the vehicle into a position where it can stay for a period of time and leave it there.”

The word “parking” appears multiple times in Smart Parking’s terms and conditions and their Parking Charge Notice, but no alternative definition is given in either place.

Neither do their terms and conditions alert the user to their alternative interpretation of the word.

No reasonable interpretation of the popular usage of the verb “park” would consider that a vehicle is “parked” while it is still moving on entry to a car park, nor in motion while leaving a car park.

Conclusion

I have demonstrated multiple reasons for the invalidity of the Parking Charge Notice referenced above, and I request that the independent adjudicator allows my appeal against it.

Please contact me if you need any further information in coming to your conclusion.

Yours faithfully,

(me)
--

Thanks for your help!

Coupon-mad

Your words about the POFA should talk about paragraph 9, not paragraph 8. the main issue is the 9(2)f omission IMHO.

Did the PCN arrive by day 14?

Definitely remove this:

WITHOUT PREJUDICE

And you appear to have missed the usual templates in post #3 of the NEWBIES thread. Add:

- appellant not shown to be the individual liable (driver)

- unclear signs - the long template, deliberately so

- no landowner authority

Newbie1953

Thank you, Coupon-mad - good catch over the paragraph numbers. My eyes were glazed over with all the reading I'd done by that point.

I've added the "usual templates" as you suggest.

As a matter of pure interest, why would you remove the "WITHOUT PREJUDICE"? I wanted to guard against the possibility that I'd accidentally omitted an "allegedly" somewhere, giving some sort of implied admission...

Coupon-mad

Because without prejudice doesn't mean what you think it does, and merely communicates that the wording in the missive cannot be produced in court by either party.

Not that this will go anywhere, because the keeper appellant is about to win at POPLA!

Newbie1953

From POPLA:

"Smart Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge."

Is anyone interested in my final appeal letter? Structure somewhat varied from the draft, all regular boilerplate suggestions included, plus a full kitchen sinkful of additional points, making a total of 10 pages. There is, of course, no telling which point(s) triggered the capitulation, or whether it was simply the total volume.

Not sure if it's appropriate to post to "successful POPLA appeals" thread. Advice welcome.

Umkomaas

Well done.:T

There is, of course, no telling which point(s) triggered the capitulation, or whether it was simply the total volume.

I think in this game size can matter and can bring things swiftly to a climax! :shocked:

If it is 10 pages long, you’ll overflow the reply box and you will need to split it into separate posts. So, it might be best if you can host it on DropBox (or similar) and link it here?

It will definitely be of help to future Smart victims who will soon tread your recent path. Anything that helps defeat a PPC - helps!

You’ll need to copy the link, but change http to hxxp as newbies can’t post live links until they have a few posts under their belt. A regular will convert.

toddis

Newbie1953 wrote: »

From POPLA:

"Smart Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge."

Is anyone interested in my final appeal letter? Structure somewhat varied from the draft, all regular boilerplate suggestions included, plus a full kitchen sinkful of additional points, making a total of 10 pages. There is, of course, no telling which point(s) triggered the capitulation, or whether it was simply the total volume.

Not sure if it's appropriate to post to "successful POPLA appeals" thread. Advice welcome.

I'm a recent Smart victim (well my son is). I'd be most interested in your final appeal letter.

Thanks

Coupon-mad

See the one just added to POPLA Decisions (sticky thread, top of the forum) by ameliecharlotte. That's an example of a Smart POPLA appeal. But POPLA template wording is already provided for you to use, in post #3 of the NEWBIES FAQS sticky thread.

No-one here is a victim of Smart Parking! Easy to win at POPLA - just never say who was driving, and the appeals are done by the registered keeper only, using our templates.