Smart Parking appeal refused

ValL

I just want to thank everyone for their help unfortunately I just don’t seem able to edit my appeal down to allow it to be uploaded here
I have set out 7 points of appeal
1 faulty equipment,
2 Breach of BPA code of practice principles,
3 genuine customer cancellation criterion unevidenced and not explained to drivers

4 landowner authority,
5 Signage
6 signs don’t say what ANPR will be used for
7 Unlike

I will have to send it off and hope for the best. I’ll report back when I hear outcome. No matter what I will not pay the charge and may be back to ask for advice for court case!

Coupon-mad

I require Smart to produce a record

I thought you said this was ParkingEye?

This was my first visit to this car park. I thought this was a pay and display car park similar to others in the town.

Have you already shot yourself in the foot by saying who was driving in your appeal, then?

I failed to see the signs/instructions informing me to input

Nononono, never say you failed to see/do anything.

They failed, not you.

Please show us your full appeal by putting two points in each reply, one after another. Stop rushing, and no sending it anywhere. POPLA Codes last for 30+ days and these codes NEVER stop working at a weekend, so you always have till a Sunday night at least, even if you think your time is up.

KeithP

Coupon-mad wrote: »

I thought you said this was ParkingEye?

Corrected in post#3.

Coupon-mad

And I see they blabbed about who was driving. Would have been 100% slam dunk win v Smart. Now it's fingers crossed.

ValL

Panicked in first instance and failed to read everything properly as was going abroad. I feel really stupid now. It is smart parking and I appealed to them saying I was driver and didn’t enter VRM as failed to see I needed to. Very naively thought as I had ticket they would simply cancel penalty. Will try to upload appeal tomorrow and remove what you’ve said. Thanks

claxtome

Can I suggest you correct the name of the thread as well to refer to Smart

ValL

Have tried to rename thread. Sorry but never done anything like this before, it’s an enormous learning curve

Coupon-mad

Don't apologise - you did it, now it reads as 'Smart Parking' to those who click on your thread.

So let's see your draft appeal now in several posts if it's easier, but beware of copying & pasting directly from Word documents:

https://forums.moneysavingexpert.com/discussion/5706338

ValL

POPLA Code

VRM


I am the driver and I contend that I am not liable for the parking charge on the grounds listed below. If this operator remains silent on any appeal point then it is deemed accepted.
1) Faulty equipment.
This was my first visit to this car park. I thought this was a pay and display car park similar to others in the town. I failed to see the signs/instructions informing me to input my VRN into the payment machine so simply paid the correct fee and pressed the button for a ticket. I now know that no ticket should have been issued without a VRN being input into the payment machine. Had the machine rejected my coin and not produced a ticket the misdemeanour would have been avoided.
I most certainly did not type the four letters printed on the parking ticket produced and even if I had, no ticket should have been produced because this is not the correct format for a VRM. Because of this malfunction in the Smart Parking payment machine and the fact that they accepted my payment and issued a ticket without any VRM being input I would submit that no binding contract was in force.

A case very similar to this one was dismissed by Judge Middleton at Bodmin County Court on 26.10.2016.
I require Smart to produce a record of payments received and ANPR record of vehicles entering and leaving the car park between the hours of 10.30 a.m. and 11.40 a.m.
2) Breach of the BPA Code of Practice Principles
Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:
(a) Use it to enforce parking in a reasonable, consistent and transparent manner.
(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.
21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
The facts are that a ticket was bought, sent as proof and it was clear early on, that the driver had paid in good faith. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the P&D machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.
The fact is, a BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. I require that the operator provides POPLA with a copy of their policy and proof that those checks were made in this instance. Further, I require proof that ''wrong VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since I find it highly unlikely that the retailer/landowner allows this unfair fining of paying customers.
If it is not in the contract it is not a contravention that can give rise to a penalty.
In their rejection letter, Smart have failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone.
This is an inappropriate parking charge which should have been cancelled on appeal. I remind Smart that operation and enforcement is not just about issuing PCNs and collecting money from hapless victims, regardless of any legitimate interest, reasonableness or appropriateness. In fact the BPA CoP mentions in the Introduction 'minimum standards' (suggesting they are set low) as well as the importance of 'acting in a professional, reasonable and diligent way' in issuing 'appropriate' parking charges:
2.6 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.
2.9 The Code and its appendices cover the operation of parking on private, unregulated land. This includes:
• designing and using signs
• using ANPR and associated systems
• appropriate parking charges.
And in the ANPR section:
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
To any right-minded person's viewing, refusing an appeal from a genuine shopper who did pay and display is neither 'professional and reasonable' nor 'diligent'.

I submit that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. I submit that to pursue a genuine shopper who paid & displayed is contrary to the wishes of the retailers/landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given' at the point of inappropriately refusing my appeal.

ValL

3) 'Genuine customer' cancellation criteria unevidenced and not explained to drivers.
This parking operator offered parking to shoppers of the retailer, Sports Direct. It is not disputed that I was a genuine shopper at Sports Direct which offers me certain rights and expectations which supersede any unfair 'parking charge'. I understand now, from my research of other cases, that this operator supplies a Site Manual (or similar policy document with their phone number) to all retailers which allows for 'genuine customers' to have their charges cancelled if the customer complains and show receipts.
It is noted that the terms on the signage fail to advise customers of their secret cancellation right, so visitors have no way of knowing these terms. This evidence is vital because the operator rejected our appeal, yet I have reason to believe the charge should have been cancelled.
Smart have made my position impossible at appeal stage by not telling me of my right to complain to the landowner/retailer to get the charge cancelled. To answer this, Smart must show that this information was made clear to shoppers on prominent signs inside and outside the store. And they must show their Site Manual/policy for retailers which sets out the criteria under which the parking enforcement operates from the retailers' informational point of view and the right to cancellation and any exemptions form a vital part of the landowner contract.
I contend that the occupants of the car did qualify for the PCN to be cancelled and if the operator disagrees I require sight of the full 'discretionary criteria' cancellation clause from the Site Manual/store parking policy which forms a vital part of their contract with the landowner and agreement with the retailers. This will need to be a true copy and show the circumstances under which the operator will cancel a charge for a genuine customer.


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 to evidence the definition of the services provided. This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a mere VRN error.
The contract and any 'retailer agreement/Manual' setting out details including restrictions, charges and exemptions - such as 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 and any cancellation rights offered to genuine shoppers.
Paragraph 7 of the BPA CoP 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.


5) The signs in this car park are not prominent, clear or legible from all parking spaces and although the parking fees/tariffs are in large lettering, there is insufficient notice of the sum of the punitive 'parking charge' itself
There was no contract beyond an agreement to pay a tariff, which I did. There was no agreement whatsoever on the penalty 'parking charge'. It is submitted that I did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion to the parking tariffs and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, far too high and some are obscured by foliage and/or high-sided delivery lorries. The 'parking charge' is not listed in the same large font as the fees/tariffs at the machine so the risk of paying a huge amount more later on for a minor 'transgression' is not drawn to drivers' attention.
They are unremarkable and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of paying/displaying and leaving the car.
It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one, nor could learn about the 'parking charge' when reading about the tariffs.
Evidence shows that the terms appear to be displayed inadequately, in letters no more than about half an inch, to one inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:


''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
So, a letter height of just an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it to be able to read the terms.
One wonders why the tariffs are in larger font than the 'parking charge' except as entrapment, which fails Lord Denning's Red Hand Rule for onerous terms which are required in contract law, to be: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms and parking charge itself in large lettering, as was found to be the case in the car park in 'Beavis'.
A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign next to the P&D machine, or even as a warning message on the P&D machine itself which flashes up and warns of the huge implications of a wrong VRN, before using the keypad.
Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because they were obscured/not adjacent to the car and could not have been seen and read by the driver before parking.
So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Including photos of the P&D machine screen and tariff signs, to evidence whether the 'parking charge' meets Lord Denning's 'red hand rule'.