Popla appeal :fistral bch - pay by phone nothing to do with smart parking apparently!

samtreesam

Hello all -
Any advice at this point would be very gratefully received as I have spent several hours online researching my POPLA appeal today and am still not sure if a) I have a case (obviously I think I do!) and b) whether I need to include all the many points from other templates.

My husband was driving my car at the time (unfortunately I have already supplied Smart Parking with this info when I appealed the PCN). As he had insufficient change, he paid for the parking at Fistral Beach via his mobile phone. I supplied screenshots from his phone to prove this. Here is the information I supplied for the appeal:

'I called and paid this over the mobile phone (it took me some time to actually get any mobile reception at Fistral Beach!) - I attach the phone log to prove this [sent]. I then went down to the sea for a surfing competition and when I checked my phone again received a text saying you did not have my registration (even though I had clearly left this on your phone system) and a request to text it urgently, which I did - again I have a screenshot of this text exchange to prove it [sent]. I did not hear any more from you until I received this fine - surely if you were not satisfied with my reply, you should have texted/phoned me to advise me?'

Smart Parking replied on 19 October (although we only received their letter on 24 October) saying that they believed the PCN was correctly issued and advised us that 'the pay by phone option is a third party company, Smart Parking are unable to advise on any process that the driver may have experienced when using this option. Payment can be made via the payment machine at any point prior to exiting the car park, and so there is sufficient time available for motorists to acquire change and purchase a ticket should they not have any on arrival'

Of course we would have paid for parking with cash if we had known that the pay by phone option hadn't worked!!!!

Our only option now is to make a POPLA appeal or pay the £60 and I can't find anyone else who has experienced the same issue to see if there is a case to appeal to POPLA - surely common sense should prevail! If a driver doesn't know that their mobile phone payment hasn't been accepted, how can they rectify it?? Or do we need to find legal points and holes in their case, such as poor signage which does not clearly indicate that Pay by Phone is a third party company and request a copy of the signed contracts etc?

Here is a link to the Fistral Beach Smart Parking sign: (sorry - as new user not allowed to include link)

We have until the 3 Nov to pay £60 as opposed to £100 so any feedback or similar cases that you know of before then would be immensely helpful!

Thank you in advance

Redx

there are plenty of popla appeals on here for fistral beach so start bt drafting one based on the following

no contract
poor and inadequate signage
not the same as BEAVIS
FRUSTRATION OF CONTRACT

any NTK errors or failures
any BPA CoP failures or breaches
POFA2012 if they failed that particular law

what happened on the day may not be relevant , so wait for critique compared to your post above once your popla draft is on here

Bucko78

Is this not the car park run by parking eye.. I got done on there for 13minute pre stay( or not purchasing a ticket in their grace period)

I was glad to say I won..

Yours is a different case to mine with it being a phone app problem.

Did they take payment? If so then why would they take the money if the car that it was originally booked for had no reg plate registered for it to valid for?.

That’s what I’d be asking?

Redx

Bucko78 wrote: »

Is this not the car park run by parking eye.. I got done on there for 13minute pre stay( or not purchasing a ticket in their grace period)

I was glad to say I won..

no , its not

IT WAS , but fistral beach is now not so SMART and has been for some time

Umkomaas

PE are no longer there. Smart took over maybe a couple of years ago (from a hazy memory!). PE are still rampant at the golf club in Tower Road.

Both parking companies no doubt salivate at the thought of unsuspecting visitors naively rocking up during the holiday season. We have dealt with dozens and dozens of cases here over the past 3 months!

Bucko78

Yes tower road, that’s correct..that’s the car park (holiday spoiler )where we stopped.


I won mine with popla and .my dad who appealed under the same conditions lost.. all based upon the same merits..he followed me in and back out...how very weird.

How impartial they are..I think they accept some and decline some to maintain the success rate..

samtreesam

Thank you all - I will get to work on the reply as you suggest Red X as that was my concern really, that although we are definitely not guilty of parking and not attempting to pay, they may ignore the actual facts and just support Smart Parking.

No money was taken from the card so presumably the payment did not go through but no further text message was received after the one requesting the vehicle registration.

Yes - from my extensive research, it used to be PE and is now Smart Parking.

Thanks again for your swift responses and support - invaluable!

samtreesam

So here is my draft for my PoPLA appeal - any feedback would be VERY gratefully received! And apologies everyone - this is LENGTHY!

My key questions are:
Does point (2) still apply if I have already identified the Driver as my husband to Smart Parking in my initial appeal to them? To recap I am the registered Keeper of the vehicle and my husband was the Driver at the time.
I am not sure about point (4) either as I believe Smart Parking may have altered their original signage as the potential fine amount appears to be more akin to the size and scale of the Beavis signage?
Finally, should the PoPLA appeal come from myself (as then registered Keeper) or my husband to whom the reasons for upholding the PCN were addressed to from Smart Parking?

THANK YOU!


On xxxx I received a Notice to Owner from Smart Parking alleging a parking offence on xxxx, and demanding a charge to be paid. My appeal to the Operator, Smart Parking, was rejected on xxxx. I am the registered keeper of vehicle registration xxxx 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) A compliant Notice to Keeper was never served - no Keeper Liability can apply
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
3) ANPR signs do not comply with BPA Code of Practise
4) Insufficient signage
5) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
6) Failure to show evidence of reliable ANPR system
7) No legitimate interest in enforcing a charge
8) Frustration of contract

1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.
This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 9, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(b) has given a notice to keeper in accordance with paragraph 9, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9 they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescripted warning about ‘keeper liability’ were not properly given

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3) ANPR signs do not comply with BPA Code of Practise
The Operator’s signage at Fistral Beach does not meet the requirements as set down in the British Parking Association’s Code of Practice relating to signage. The BPA states the following:
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.
Therefore the cameras must be used in a transparent manner; in an ANPR car park, if you were to park for 2 hours and take 10 minutes to find a space, and 5 minutes to exit the car park, you may be judged to have stayed 2 hours and 15 minutes. In order to meet the transparency requirement, the signage should state that the timing is from the point of entry and exit to the car park. Without this, how is a motorist to reasonably know this? There is no mention of this at Fistral Beach.
Equally, the Smart Parking signage does not comply with the BPA’s requirement to tell drivers what they are using the data for that the ANPR cameras are capturing at Fistral Beach. It simply states that the car park is ‘monitored by ANPR systems’, so to a member of the public this could mean anything; it could be to look for uninsured cars, stolen cars, or anything. There is no clarification that the ANPR data is being used to determine the length of stay by motorists.

Figure 1 Smart Parking signage at Fistral Beach

4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion 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:

Figure 2 Beavis sign

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, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. 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 parking 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. This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.'' From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an 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 half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded 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 and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms 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 and in far larger lettering, with fewer words and more 'white space' as background contrast. 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 (who had not seen any signs/lines) 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 the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat 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. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Smart Parking signage at Fistral car park states ‘Motorists must enter their full, correct vehicle registration when using the payment machine’ (Figure 3). This only refers to the pay machines installed in the car park. Signage should make clear reference to correctly entering their registration plate in the phone and pay app also. The phone and pay option occupies a small section in the top right hand corner and uses small font. This option needs to be made clearer and more detail provided about its application. Errors using mobile phones are more likely to occur due to auto correct functionalities that exist in all smart phones these days. Smart phone keypads are designed to assist in correctly inputting words due to the increased chance of making mistakes when using touch screen technology with small keypads. Number plates being unrecognised series of characters for such software can easily be automatically changed edited or altered without the user noticing.

Figure 3 Smart Parking sign at Fistral Beach

5) 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. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or 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 by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

6) Failure to show evidence of reliable ANPR system
Also Smart Parking has provided no evidence that the ANPR system is reliable. The Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to 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 the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Smart Parking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

A correctly calibrated ANPR system and associated mobile phone software used to pay for parking should be able to know if a registration plate being entered by the customer using the car park has in fact entered the car park.

SEE NEXT POST FOR CONTINUATION (sorry!)

samtreesam

7) No legitimate interest in enforcing a charge
Contrary to the Beavis case, Fistral Beach is a pay car park; in the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifiable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty. A key point from the Beavis case was that the charge was necessary to deter overstaying; if penalties were not issued then the car park would be unfairly used. So in this case the opposite would apply; as Fistral Berach is a paid car park as per ParkingEye Vs Cargius there is no legitimate interest, and any charge is deemed an unenforceable penalty, particularly as payment was attempted using the pay by phone option.

8) Frustration of Contract
In this case an attempt to make payment was made using the pay by mobile option (Figure 4) as indicated on the Smart Parking sign. The Driver was later sent a text from a different telephone number requesting confirmation of the vehicle registration and the Driver duly supplied it (Figure 5). If the payment was not successful for whatever reason, a text response should have then been sent back to the Driver so that a fair opportunity was given to rectify the situation – issuing a PCN days later is NOT fair. This represents a frustration of contract as the circumstances were beyond the Driver’s control (and created by the Operator’s negligence).

Figure 4 Screenshot of call made to pay by mobile option

A simple software adjustment could surely be made by the Operator to resolve and prevent Drivers being issued with disproportionately large PCN’s.

I would like to draw your attention to the following case where a motorist received a parking ticket as a result of a Driver entering their registration number incorrectly:
Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

The judge ruled - that the case hinged on whether the motorist had paid or not, and that the burden of proof lay with Park With Ease to show that the motorist hadn't. As he felt they hadn't been able to show that without any doubt the claim was dismissed.

I conclude that it is perfectly possible to have pay by phone software that responds to texts from drivers if their payment is not successful. Smart Parking would be well advised to use this type of software and level of quality control rather than waste their money prosecuting motorists because their own system is flawed.

Figure 5 Screenshot of text message received by Driver requesting confirmation of vehicle registration and Driver’s reply confirming the vehicle registration. NO FURTHER CONTACT WAS MADE BY THE PAY BY PHONE option so the Driver believed payment had been taken.


THE END!

Coupon-mad

My husband was driving my car at the time (unfortunately I have already supplied Smart Parking with this info when I appealed the PCN).

Who was the rejection letter sent to, you? If so, you worded your appeal right by saying you were not the driver. Nice one, if so. Of course no keeper liability applies, if YOU are the person appealing to POPLA (the person who got the code issued to you).

I hope you didn't appeal in your husband's name as driver, such that the POPLA code came to him.

Umkomaas

My husband was driving my car at the time (unfortunately I have already supplied Smart Parking with this info when I appealed the PCN)

If the driver has already been identified, issues raised about the NtK should be void. However ......

..... have Smart issued a subsequent NtD, addressed to your husband on receipt of your notification to them?

Did you formally identify him as ‘the driver’ and provide his name and address for service?