Help with my POPLA appeal draft against Smart

melissalilyxox

Hey guys, im looking to send the appeal off tomorrow afternoon to POPLA. Discount period ends on the 3rd - so ive been unsure on what to do since im not the smartest of girls! I previously posted regarding my stepfather recieving a postal PCN from Smart Parking

Been reasearching since 9 this morning and ive had enough of reading confusing acts!
Wondering if someone could give me a hand & quickly read through this (advising on what i should just delete - as i know ive rambled on, & copied and pastied a few things!) Or possibly anything i could add!
First time ive ever had to do this, and i hope never again!
I know its very long,im really unsure on what doesnt need to be there.. I always try confusing things Would really appriciate some imput..

Thanks:beer:

Dear Sir/Madam

As the keeper of the above vehicle, I wish to appeal the parking charge notice Smart Parking Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:

1. Insufficient grace and observation period taking into account disability of the driver. (requesting extra time for blue badge holders under the Equality Act)

2. A non-compliant Notice to Owner (or keeper) – no keeper liability established under POFA2012.

3. Inadequate signage - The signs in the car park are not clear, poor and inadequate relying on information from other unrelated sources to fully comply. The signage on site is inadequate or inappropriate and can have made no contract with the driver.

4. No evidence of Landowner Authority – the operator is put to strict proof of full compliance with the BPA Code of Practice. (Oldham Council)

5. The ANPR system is neither reliable nor accurate, Time on site is not parking time

6. Unreasonable and unfair terms


(1) Gracing Period

1.) Lack of Observation and Grace periods either side of allowed parking time.
The charge that was levied is unreasonable for overstaying in the car park for 27 minutes. British Parking Association code of practice (BPA CoP) states:
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
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.

This matter flows from an allegation of 'overstay' of 27 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the vehicle was parked or when then vehicle started to move again to leave the car park.

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 12:34 and driving out at 13:01 on the same date. They were unable to park immediately upon entering the car park due to congestion from other vehicles, caused due to the Christmas season (17th dec) but then a space was made available. Driver had already been circling around prior in seek of a council blue badge bay. I have attached evidence of numerous customers caught in this as Oldham council currently lacks sufficient blue badge bays. Driver was forced into paying, knowing full well this was a private carpark and valid tickets must be purchased to cover the full duration from entry to exit.
Driver proceeded to pay for parking, and was oblivious that the new pound coins that were introduced were no longer accepted in the machine. Here, the driver spent almost 10 minutes entering the reg, and putting pound coins in it for it to reject again and again. Realising it could be the old pounds, driver proceeded back to the car where driver made passenger aware who was waiting in the car that he was doing so and to inform any wardens that he would be back soon. Driver placed blue badge on the car (in respect to prove that they may take a short while longer considering the individuals disability and unable to walk long distances requiring a use of a mobility scooter).

Driver returned and noticed a council owned blue badge bay become available and left the mobility scooter outside the carpark with passenger and drove across the road to the blue badge bay where he would be entitled to park for free.
Entrance signs were not sufficient to show the driver it was monitored by ANPR system with the driver never previous hearing of ANPR cameras monitoring private carparks, and assumed ran by attendants.

The BPA Code of Practice (13.2) states that parking operators "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." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:
There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

It is very clear from the evidence that Smart Parking Ltd have failed to uphold the minimum grace periods as set out in the BPA Code of Practice or taken into account that the blue badge holder required extra time to pay his parking ticket, in addition to congestion when entering the carpark. Smart Parking Ltd’s evidence is not clear how long was spent prior to parking the car or when the car started to depart the carpark. I object to the unclear information in the PCN and I reserve the right to comment when PE finally show me the timings transparently.

- If an occupant of the car is disabled or elderly they will be legally entitled to a 'reasonable adjustment'. That can and should include an extension of time, over and above free or paid-for parkingtime. Here i have attached evidence of the drivers blue badge [Here I will only upload the front of the badge where there is no picture/name only 'Oldham Council' and a few numbers??]]

It also took the driver a further 5 minutes to exit due to congestion. BPA believes that 5-10 minutes’ observation' period is acceptable depending upon various factors (e.g. Christmas shopper queues) and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.'
The Signage on entry to Rock Street Car Park is not clear detailing the grace period, when the parking period begins and its parking charges. (see attached – Image.)

(2) Keeper Liability

Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

In order to be able to claim unpaid parking charges from a vehicle’s keeper, an operator must deliver a Notice to Keeper in full compliance with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). There are many reasons why Smart’s PCN does not comply with POFA and consequently, Smart has forfeited its right to utilise the provisions of POFA to claim unpaid parking charges from [ABC]. In order for you to understand why, we suggest that you carefully study the details of Schedule 4, Paragraph 9 in particular.

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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.

As the owner, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the registered keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. The Notice to Keeper, titled Notice to Owner, dated 17th Dec 2017 failed to comply with POFA2012 Schedule 4 on at least 5 specifics.

It fails to comply with Para 8(2)(a) of the Act.
Para 8(2)(a) states that a notice must:
“…specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”

The Notice does not state the period of parking, merely the time of the alleged contravention and charge issue.

It fails to comply with Para 8(2)(b) of the Act.

Para 8(2)(b) of the Act states that a notice must:
“inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;”

The Notice merely states that a Parking Charge Notice was posted to the keeper and remains outstanding. The Operator does not fulfill the requirement to inform the keeper that the driver is required to pay the charge, nor that the charge has not been paid in full.

- It fails to comply with Par 8(2)(e) of the Act.

Paragraph 8(2)(e) of the Act states that a notice to keeper must:
“…state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper –
(i) To pay the unpaid parking charges; or
(ii) If the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver…”

The Notice does not, in a single document, state that the Operator does not know both the name of the driver and a current address for service for the driver and invited the owner to pay the charge or provide this specific driver information. These are clearly separate requirements which must be met separately. Though the Operator has fulfilled para 8(2)(e)(i) and hinted that the owner might provide "driver details", the operator has not fulfilled the other specifics of Para 8(2)(e). The Operator has failed to state that they do not know both the name of the driver and a current address for service for the driver and does not request that specific information. Nor does the Notice notify me to pass on the notice to the driver.

- It fails to comply with Para 8(2)(f) Para 8(4)(b) and 8(6) of the Act.

Paragraph 8(2)(f) of the Act states that a notice to keeper must :
“…warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges … has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid”


- It fails to comply with Para 8(7) of the Act.

Para 8(7) of the Act states that:
“When the notice is given it must be accompanied by any evidence prescribed under paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was sent to the keeper and detailed online” it provides no evidence at all with the Notice. The Notice provides a link to its website where there are 2 digital photographs of the vehicle parked neatly in a bay. Since arrival of my rejected appeal, it is no longer available the photos online, and simply comes up with an X, when initially they would come up instantly. Beyond those photographs, which in no way demonstrate evidence that the vehicle is in breach of any terms or conditions, the Notice does not provide any evidence at all. Para 8(7) is clear; the Notice must include such evidence as required by Para 8(10). The burden of proof is upon the operator and I challenge the Operator to provide clear unequivocal evidence that Para 8(10) of the Act does not require their Notice to provide and include evidence as per Para 8(7).

The Notice to Keeper does not comply with the strict requirements of POFA2012 Schedule 4 and no keeper liability exists.

Therefore the following requirements have not been complied with:
1. Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
2. State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when
3. identify the “creditor” who is legally entitled to recover the parking charge
4. Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.
Smart Parking has not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

“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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in6061796103 against 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) Inappropriate/lack of signage - no contract with driver

The alleged breach took place in Rock Street Car Park in Oldham. Having subsequently visited the site, the main sign at the immediate vehicle entrance to the carpark is barely noticeable as drivers who, unable to stop at that point in the road, rightly strive to accord with legal and safe driving practice. Indeed the text is so small as to render the sign unreadable and unremarkable. The sign is impossible to read whilst entering the carpark and is insufficiently eyecatching to give one cause to revisit after parking. I believe Smart Parking have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers.

It is highly unlikely that a driver even saw a sign. I require Smart Parking to prove beyond any doubt that there was a suitable sign, meeting the requirements of the law, within the clear line of sight of the driver on the driver’s walking route from the exact position of the parked car and the entrance that the driver used to the shop on that day.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle can not have seen any clear, unambiguous sign; there was no consideration/acceptance and no contract agreed between the parties. In their rejection of my appeal, Smart Parking assert that I was the driver (when no such information has been passed to Smart Parking) that by merely entering the carpark “I “ agreed to the terms and conditions. This is an utter nonsense, requiring a driver, even one with full faculty and cognition, to have agreed to terms and conditions upon entry and before having become aware of signage or read and understood the terms and conditions.

4) Lack of standing/authority from landowner

Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park (the local council Oldham do) and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.

I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner, and indeed with ASDA, the users of the land. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this outrageous sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) NPR system


I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps. By close examination of the photographs, the details (time, date, licence plate) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged
I would challenge Smart Parking Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).
BPA COP 20.5 states
When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.
6) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unclear showing of gracing period and ambiguous jargon laden signage, is far from 'transparent' or obvious to drivers.

melissalilyxox

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I contend it is wholly unreasonable to rely on unclear, obscure or poorly, even dangerously located, signs in an attempt to profit by charging a disproportionate sum where no major loss has been caused by a car overstaying 10 minutes due to disability. I put this Operator to strict proof to justify that their charge, under the circumstances described. In the light of all of the above, I therefore respectfully request that my appeal is upheld and the charge is dismissed


Thank you for your cooperation and we look forward to receiving Smart’s notification that this charge has been cancelled.

Fruitcake

I have no idea what you mean by a discount period. You have about thirty days to use a PoPLA code, so don't rush it, but don't miss the PoPLA deadline either.

What did you put in the initial appeal? Was the driver's identity revealed?

I've only skim read but your signage point is far too short. You should use the long template appeal point from the NEWBIES thread.

KeithP

So is this your stepfather's PoPLA appeal?

It would be good it you could keep all posts about one incident in one thread.

"Discount period ends on the 3rd"... 100% discount offered here - no time limit.

melissalilyxox

KeithP wrote: »

So is this your stepfather's PoPLA appeal?

It would be good it you could keep all posts about one incident in one thread.

"Discount period ends on the 3rd"... 100% discount offered here - no time limit.

It is my stepfathers appeal yes.
My apologies, still figuring how to work the site out.
I feel like I wouldnt win the appeal with this! But the pressures been put on me to sort it - he wouldnt know where to start otherwise!

melissalilyxox

KeithP wrote: »

So is this your stepfather's PoPLA appeal?

It would be good it you could keep all posts about one incident in one thread.

"Discount period ends on the 3rd"... 100% discount offered here - no time limit.

Fruitcake wrote: »

I have no idea what you mean by a discount period. You have about thirty days to use a PoPLA code, so don't rush it, but don't miss the PoPLA deadline either.

What did you put in the initial appeal? Was the driver's identity revealed?

I've only skim read but your signage point is far too short. You should use the long template appeal point from the NEWBIES thread.

Feel as though ive tried all day and not getting anywhere, i only have today and tomorrow off work to look into it, and im thinking if i just pay the discount of 60 saves the hassle of being rejected again - i simply dont know what im writing about - apart from the whole grace period thing.

I put in the intial appeal what i wrote briefly on here, driver is a blue badge holder and was unable to make it back to his car on time (overstaying the gracing period by slightly). They told me that its clear on the terms and conditions blue badge holders must also purchase a ticket. He knew this but had no change. Migating circumstances really but considering I was willing to show eveidence of his blue badge if requested, to prove it would take someone like him alot longer to get to a cash point. But nope. Rejected.
Never named him .

Going to grab some pictures of the carpark later, so will look into templates that I can adjust to hopefully what will be awful signage! Thanks

KeithP

Your stepfather stands a very good chance of winning a PoPLA appeal.

Smart aren't smart enough to read to the end of a long appeal so usually do not contest them.

But do wait until others have reviewed it to perhaps make it even stronger.

melissalilyxox

KeithP wrote: »

Your stepfather stands a very good chance of winning a PoPLA appeal.

Smart aren't smart enough to read to the end of a long appeal so usually do not contest them.

But do wait until others have reviewed it to perhaps make it even stronger.

Thankyou for your advice - looks like a jumble at the moment, and even I am getting abit fed up of reading it over and over! Guess its better to have put alot - than nothing:p
Probably not that much though!

Fruitcake

melissalilyxox wrote: »

Feel as though ive tried all day and not getting anywhere, i only have today and tomorrow off work to look into it, and im thinking if i just pay the discount of 60 saves the hassle of being rejected again - i simply dont know what im writing about - apart from the whole grace period thing.

I put in the intial appeal what i wrote briefly on here, driver is a blue badge holder and was unable to make it back to his car on time (overstaying the gracing period by slightly). They told me that its clear on the terms and conditions blue badge holders must also purchase a ticket. He knew this but had no change. Migating circumstances really but considering I was willing to show eveidence of his blue badge if requested, to prove it would take someone like him alot longer to get to a cash point. But nope. Rejected.
Never named him .

Going to grab some pictures of the carpark later, so will look into templates that I can adjust to hopefully what will be awful signage! Thanks

But was the driver's identity revealed in that appeal? If so, you can't use non POFA complaint NTK. If the driver's identity wasn't given away, then you probably will be able to use that point.

I still don't understand this bit about the discount. It doesn't apply to PoPLA, and in any case it is for mugs. You have about thirty days to make a PoPLA appeal, so use all of them to get the 100% MSE discount.

melissalilyxox

am i right to use NON Pofa Complaint NTK then?
i never named the driver positive

melissalilyxox

pictures of the signage

https://ibb.co/hgb6m6
https://ibb.co/nzGTzR

only one in the whole car park, and driving in its faced the wrong direction.