Smart PCN Fistral Beach wrong vrn entered

stayhappy

I believe I have probably admitted who was driving in the first appeal to Smart before I knew it was important. I don't know if I can then go back and use this as an appeal point. How do I appeal without explaining the circumstances of the ticket i.e. the wrong digit in vrn. Do I just admit to buying a ticket but not about the wrong vrn ?

stayhappy

Re the not using predatory tactics etc what is the 9.5 ? Thankyou

pappa_golf

the predatory tactics is a point you should be asking the BPA about , get their answer in print ,

the statement in there COP and that of a "minion" should be the same , if it is not , then it can be escalated or indeed mentioned to the judge

do not allow the BPA to fob you off

Redx

an occupant of the vehicle has bought the ticket

the driver is responsible

the keeper is the one appealing it

if in doubt about who is who in this complicated saga , stay as keeper and use POFA2012 anyway , see what they come back with (if they dont tell popla they are not contesting it)

as for the incorrect VRM details, mention them as an occupant of the vehicle bought the ticket blah blah , ticket machines should not allow incorrect entry , they accepted the variable contract based on what was input into the machine when they accepted the payment

ticket machines should not allow extra characters like O for Orange in their selection menu , any ambiguity is in favour of the consumer under the CRA2015

you need to think this appeal through as 2 or possible 3 identities involved , one of which was the driver , one the keeper etc

stayhappy

I have amended is this any better ? Have omitted headings at beginning as too long for post
1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
To date I have not been issued a Notice to Keeper (NTK) by UKPC. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on xx/xx/2016 and from my understanding the NTK was required to reach me by xx/xx/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

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)Pay and Display ticket purchased

A pay and Display ticket was purchased at the correct fee of £2.50 and displayed.



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 'landowner 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.

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.



''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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'.



6) The signs do not state what the ANPR system data will be used for.

The BPA CoP contains the following in paragraph 21:

''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.''

Smart Parking fail to tell drivers that the ANPR data will be compared to any VRNs input into the P&D machine and will then be used to issue 'parking charges' for any case where there is a VRN omission or error. If I had known this vital fact, I would have thought twice before inputting the VRN in error. As I did NOT know this, I cannot be deemed bound by the terms.

7) 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 but had simply keyed in one wrong digit of the registration number. Replacing zero with the letter o is easily done as the font on the car registration plate is the same for both. 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 parker who did pay and display is neither 'professional and reasonable' nor 'diligent'. Their own ANPR records show that there was no vehicle on site with the VRN keyed in and as evidence, I was able to produce the ticket as proof that payment was made. An o and a zero are the same on a UK number plate, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.

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 parker 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.


8) The 'ParkingEye v Beavis' case exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty.

Smart Parking should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user using the car park appropriately where there has been no loss to the owner and no abuse of a parking space, nor any overstay.

While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £100 penalty is a conscionable amount to be charged for the simple problem of a VRN error which was explained and accompanied in good faith at appeal stage, by proof of pay & display.

In this case the vehicle would have been fully entitled to park as it did had the VRN been correctly keyed in (provided that obligation had been clearly brought to the motorist's attention). The justification and 'legitimate interest' that was held to rescue the 'ParkingEye v Beavis' charge is irrelevant and conspicuously absent. The Operator cannot argue that a 'legitimate interest' exists to punish visitors for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended by the owner and for no more than the paid-for time.

The Beavis case is not comparable and does not supersede any considerations of the specific facts in this case. It is certainly likely that the courts would say it is undoubtedly 'unconscionable' to penalise a shopper who has proved they paid and displayed, at the same level as (for example) a non-shopper trespasser, who parked all day across two bays without paying any tariff.

This charge issued to me as a paying driver is clearly capable of being held by the courts as an unenforceable penalty. This view is supported by the judgment of the Supreme Court, which did not disagree with the earlier judgment from the Court of Appeal in 'Parking Eye v Beavis' which held:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park...

47. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) Bing. 141 at 148:

“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

This judgment makes clear that the Court of Appeal (and by definition, the Supreme Court which agreed) would also consider the charge in this case to offend against the penalty rule which all Judges agreed WAS 'engaged' by a contract attempting to enforce a parking charge. And at the Supreme Court it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:

''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

The purported contract with the motorist is an ordinary 'financial contract' where the loss that Smart thought had arisen (non-payment of a tariff) is easily calculable. Without intellectual dishonesty, it cannot be argued that there is a commercially or socially justifiable deterrent value in this charge, especially as soon as Smart knew that in fact, I paid and displayed.

Any putative contract needs to be assessed on its own merits as regards what would be deemed 'out of all proportion' to the tariff paid and 'unconscionable' given the circumstances. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.

In this case the specific question is whether a reasonable person would, when parking in a place where they had paid the correct tariff for the privilege, also accept a further unknown liability in the case of a VRN error (that they were not informed was vital nor ran the risk of a huge fine). I would suggest that a court would not accept that £100 was a reasonable amount given these specific circumstances.

Although the charge was the same sum, the Beavis case was 'entirely different' and does not save the charge in this case, from being held to be unconscionable. This is an unenforceable penalty and cannot be upheld as properly given.

Redx

you have not even proof read it , for truthful statements

this thread is about smart parking , yet your appeal has UKPC listed

1 out of 10 so far

and you HAVE had the NTK, the postal notice , because there was NO WINDSCREEN TICKET issued

dont expect others to read thousands of words when there are blatant errors in there

ps:- I didnt get past section 1)

Umkomaas

A very quick scan from me - I’m done for the day, it’s been a long one - it looks so very much better. Much better in terms of the appeal points you cover, much better in terms of layout. It looks more like a winning POPLA appeal - but wait to see if anyone else comments tonight.

If there’s no rush to meet the POPLA deadline, it’s better to wait for any other comments and get this absolutely right. I’ll try to take another look tomorrow in more detail. Good work!

stayhappy

Apologies if not proof read correctly. I thought I had but will look again. I am stressed with it, seem to have been doing it forever. When it is all new it's a lot to try and understand. Not expecting you to do the work but appreciate any assistance.

stayhappy

Am I to assume section 1 is completely irrelevant, do I just delete that part or is it the wording ?

The_Deep

Let us look at this dispassionately. You parked by the beach, paid and entered an"0" instead of an "O" in a machine.


The PPC claim that by committing this very minor human arror you have breached your contract with them and want £100 damages. Why? They have suffered no loss, you have done them no damage. It appears there they are trying to penalise you for an event which a judge is likely to consider a trifle, and the law does not deal with trifles.

This is a con, a device to try to gouge money out of you by threats and falsehoods. It is time the owners if the car park treated their customers with more respect and got rid of these parasites.