Smart Parking Charge - Exeter Quay (Matalan)

pappa_golf

thomasallan2000 wrote: »

Yes, Matalan car park overseen by Smart Parking.

Update: I have emailed to MP Ben Bradshaw for Exeter, although he must have a load of emails to get through so I will probably need to chase it up.

I have also read you can't bank on the grace period, as some private car park management don't have to abide by this aspect of the code of practice. It seems logical though that the code of practice to which they are signed up states this minimum ten minutes thing.

Have had a look at the newbies thread 3. The grace period aspect seems self-explanatory; guessing some of the other stuff is copy and paste job? Don't POPLA people get used to seeing the same stuff plastered onto appeals?

Thanks again

you CAN bank on grace periods , they are in the code of practice and if they do not comply with them , smart can be sanctioned and kicked out

the code of practice changed on jan 2nd 2018 , but this is the text from the version in play when you parked

13 Grace periods
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 !!!8216;grace period!!!8217;
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. 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.


Don't POPLA people get used to seeing the same stuff plastered onto appeals?


indeed they do , and they should be required to report companies that routinly break or do not understand rules


oh look , a flying pig!

The_Deep

If you are near the signs, visit again and read them thoroughly, all the minute print, and time how long it takes to you read and understand it all. The more wordy the T&C, the longer it will take.

Of course, no-one does this, but the signage is the contract. Before anyone agrees to a contract they you should understand what they are agreeing to.

Ralph-y

as above ....

"What happened when you complained to the retail manager?"

complain to the local manager (NOT the CS person) and head office


Ralph:cool:

Fruitcake

These are some of the comments made by the MPs in Parliament concerning the unregulated parking industry (Feb 2018):

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

These are the exact words used by MPs, so you should quote them to the store manager.
Also complain to your MP and ask him/her to contact Sir Greg Knight MP if he wants further information about this scam.

thomasallan2000

Thanks Folks, draft below for your comments:

POPLA Ref No.xxxxxxxx

I am the registered keeper of xxxxx and I wish to appeal a recent PCN from Smart Parking for !!!8216;alleged breach of advertised terms and conditions within HAVEN BANKS RETAIL PARK, EXETER on 30/12/2017!!!8217;

Smart Parking have rejected my appeal despite the facts of the case and mitigating factors present (a now bereaved father issued with a punitive ticket for a 4-minute !!!8216;overstay!!!8217; while daughter lay in a critical condition in Neo-natal unit). Further to scrutiny of the ethics of such practices of private parking companies and recent bills and amendments to law and code of practice proposed by Sir Greg Knight MP, details have now been sent to Ben Bradshaw MP, should this case constitute wider public interest and concern.

I would be grateful if you would please consider my appeal for the following reasons:

1. The minimum grace period was not allowed by the operator
2. Authorised user
3. Insufficient signage
4. No evidence of Landowner Authority
5. Amount demanded is a penalty
6. Failure to show evidence of reliable ANPR system
7. Non-compliance with BPA code of practice

1. The minimum grace period was not allowed by the operator

According to the Smart Parking operated ANPR, the vehicle entered the car park at 12:19:59 and exited 14:32:26. A valid parking ticket was purchased covering the period 12:28 until 14:28. Correspondence from Smart Parking states that this resulted in a 12 minute overstay. However this judgment contradicts the British Parking Association Code of Practice 13.1 !!!8211; 13.4 states, of which Smart Parking are a member:

13 Grace periods

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 !!!8216;grace period!!!8217; 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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

According to this code of practice, upon entering the car park I needed a reasonable amount of time to decide to use this facility, before this could be considered as entering into a contract with Smart Parking, as opposed to being charged and held into a contract from the very second the vehicle was purportedly captured by ANPR entering into the car park. I believe 8 minutes is a reasonable (indeed, under the circumstances quite efficient) amount of time to undertake all checks and actions necessary before deciding to enter into a contact with Smart Parking, especially considering the added demands of the support needs of an anxious and 7 months pregnant mother and a distressed and confused 4-year-old. I also note that !!!8216;the Grace Period at the end of the parking period should be a minimum of 10 minutes!!!8217; thereby meaning Smart Parking have decided to ignore this aspect of a Code of Practice to which they have agreed to work.

2. Authorised user

The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract. In this case, we have an authorised user using the car park appropriately. There has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £90 (or £54 if paid promptly) fine is a conscionable amount to be charged whilst an authorised user takes a reasonable grace period to read up on signage and !!!8216;terms and conditions!!!8217; and actions necessary to enter into a contract with the operator.

3. Insufficient or inadequate signage

Smart Parking!!!8217;s signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Aspects of the signs are in small print and the terms are not readable. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A small sign is present to the right of the entrance to the car park meaning a driver could not safely read this signage without taking their eyes off the road ahead; something unsafe with pedestrians, families, small children, consumers, etc present and moving within the car park, especially at busy times.

The main sign at the immediate vehicle entrance to the car park 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 car park and is insufficiently eye catching 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.

Moreover, signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. Smart Parking are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

Furthermore, a Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. There may be a sign inside the car park but unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity i.e. grace periods at the beginning and end of the paid-for parking period is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

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!!!8217;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 cannot have seen any clear, unambiguous sign without, at the very least, having first taken time to decide whether to stay, locate a parking space and park safely, before locating available signage and use or weighing the conditions offered, before deciding whether to enter into the !!!8216;contract!!!8217;. 8 minutes is, I believe, a reasonable amount of time for this to happen. Seeking to charge the vehicle from the second it entered the car park is, in my book (and that of the BPA Code of Practice), unreasonable.

4. No evidence of Landowner Authority

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 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 the retails outlets at Haven Banks Retail Park, 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 large sum of money 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.

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 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 Code of Practice 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 e 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. Amount demanded is a penalty

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the time frame being considered by Smart Parking is applied instantly the vehicle entered the car park. The signage cannot be read safely from a moving vehicle.

6. Failure to show evidence of reliable ANPR system

Smart Parking have 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 from 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.

7. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

If 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, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

I therefore request that POPLA uphold my appeal and cancel this PCN.

Thank you for considering this appeal.

Yours Sincerely

Sufficient

Twice I’ve successfully taken APCOA to the Small Claims court(MCOL) and they’ve paid me £125 (Jan 18) and £145 (Dec 12).
I challenged their notice/invoice on each occasion. For the first, the machine was faulty, and no ticket was issued. I provided a record of my telephone calls to APCOA on the day to explain the situation plus a formal statement from my bank that the charge had been paid by credit card. On the second I sent them date-time stamped photograph of the ticket properly in place on the dashboard.

I wrote to them on each occasion saying that that they should cancel their notice and that if they or their agents, such as their debt collectors, wrote to me again my charge was £30 per subsequent letter. They ignored my letters and invoices.

The lesson is clear. If you are not at fault, tell them once in a Recorded or Signed For letter why you reject their notice/invoice and say that your charge for all follow-up letters is £30, perhaps more. Invoice them accordingly. Given that they ignore you, claim online to MCOL and add the court fee of £25. If they ignore the court, apply for a court judgment.



And always take a photo of all tickets you place on the dashboard!

Coupon-mad

Did APCOA settle out of court? We didn't see your latest case listed in the BMPA parking cases daily list, which Court was it at or was there no hearing in January?

thomasallan2000

Thanks people, although is that a separate thread? I know it's long winded, but any comments on the letter?

Sufficient

No, they ignored me and the court until I obtained a Court Judgement which they also ignored until I sent it personally to their CEO. Search 'Money Claim Online Court' - it's part of the HM Courts and Tribunal Service and is ideal for small claims.

Coupon-mad

thomasallan2000 wrote: »

Thanks Folks, draft below for your comments:

POPLA Ref No.xxxxxxxx

I am the registered keeper of xxxxx and I wish to appeal a recent PCN from Smart Parking for 'alleged breach of advertised terms and conditions within HAVEN BANKS RETAIL PARK, EXETER on 30/12/2017'.

Smart Parking have rejected my appeal despite the facts of the case and mitigating factors present (a now bereaved father issued with a punitive ticket for a 4-minute 'overstay' while daughter lay in a critical condition in Neo-natal unit). Further to scrutiny of the ethics of such practices of private parking companies and recent bills and amendments to law and code of practice proposed by Sir Greg Knight MP, details have now been sent to Ben Bradshaw MP, should this case constitute wider public interest and concern.

I would be grateful if you would please consider my appeal for the following reasons:

1. The minimum grace period was not allowed by the operator
2. Authorised user
3. Insufficient signage
4. No evidence of Landowner Authority
5. Amount demanded is a penalty
6. Failure to show evidence of reliable ANPR system
7. Non-compliance with BPA code of practice

1. The minimum grace period was not allowed by the operator

According to the Smart Parking operated ANPR, the vehicle entered the car park at 12:19:59 and exited 14:32:26. A valid parking ticket was purchased covering the period 12:28 until 14:28. Correspondence from Smart Parking states that this resulted in a 12 minute overstay. However this is disingenuous, untrue and [STRIKE]judgment[/STRIKE] contradicts the British Parking Association Code of Practice: [STRIKE]13.1 !!!8211; 13.4 states, of which Smart Parking are a member:[/STRIKE]

''13 Grace periods

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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.''

According to this code of practice, upon entering the car park I needed a reasonable amount of time to drive in, and round the car park to find a space, decide to use this facility, and park and read the sign at that section, and then use the machine to make payment, before this could be considered as entering into a contract with Smart Parking.

The contract would be expected by any reasonable person, to begin and end at the times stated on the Pay & Display ticket purchased, as this is the 'point of sale' as confirmed in Thornton v Shoe Lane Parking 1971, where the Court of Appeal held that that the ticket machine was the offer, the insertion of money was the acceptance and any contract began at that point in time.

As opposed to being charged and held [STRIKE]into[/STRIKE] by an unknown contract term, from the very second the vehicle was purportedly captured by ANPR entering into the car park. No signs explained at the site entrance (as cars pass in moving traffic, Smart's remote, high cameras that they cannot even see) that the driver's time was being counted from that point and not from the payment at the machine. Why would a different time be shown on the Pay & Display ticket, if it is not the timing upon which a driver can fairly rely?

I believe 8 minutes is a reasonable (indeed, under the circumstances quite efficient) amount of time to undertake all checks and actions necessary before deciding to enter into a contact with Smart Parking, especially considering the added demands of the support needs of an anxious and 7 months pregnant mother and a distressed and confused 4-year-old. I also note that 'the Grace Period at the end of the parking period should be a minimum of 10 minutes' thereby meaning Smart Parking have decided to ignore this aspect of a Code of Practice to which they have agreed to work.

2. Authorised user

The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.

In this case, we have an authorised user using the car park appropriately. [STRIKE]There has been no loss to the owner.[/STRIKE] While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £90 (or £54 if paid promptly) fine is a conscionable amount to be charged whilst an authorised user takes a reasonable grace period to read up on signage and 'terms and conditions' and actions necessary to enter into a contract with the operator.

There is no commercial justification or legitimate interest excuse in this case, because Smart Parking have breached the Code of Practice by not allowing suitable grace periods before and after paid-for time, and did not communicate that 'parking time' somehow starts when not even parked, and differs from the times shown on my Pay & Display ticket.

The facts distinguish my case from Beavis, so POPLA please spare me the template 'POPLA Beavis case paragraphs' where POPLA regurgitates irrelevant wording, in an attempt to gloss over every case, as if Beavis applies universally. It doesn't apply, expect where the facts are on all fours in a similar free parking licence/commercially justified arrangement, with similarly clear and prominent signage and a true legitimate interest reason to charge a penalty, as I hope your 'Sector Expert' will honestly admit.


3. Insufficient or inadequate signage

Smart Parking's signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Aspects of the signs are in small print and the terms are not readable.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A small sign is present to the right of the entrance to the car park meaning a driver could not safely read this signage without taking their eyes off the road ahead; something unsafe with pedestrians, families, small children, consumers, etc present and moving within the car park, especially at busy times.

The main sign at the immediate vehicle entrance to the car park 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 car park and is insufficiently eye catching 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.

Moreover, signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. Smart Parking are required to show evidence to the contrary.

[STRIKE]I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."[/STRIKE]

Furthermore, a Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. There may be a sign inside the car park but unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity i.e. grace periods at the beginning and end of the paid-for parking period is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

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. [STRIKE]A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.[/STRIKE]

The driver of this vehicle cannot have seen any clear, unambiguous sign without, at the very least, having first taken time to decide whether to stay, locate a parking space and park safely, before locating available signage and use or weighing the conditions offered, before deciding whether to enter into the 'contract'. A mere 8 minutes is, I believe, a reasonable amount of time for this to happen. Seeking to charge the vehicle from the second it entered the car park is, in my book (and that of the BPA Code of Practice), unreasonable and unsupported by any terms that were legible on any signage.


4. No evidence of Landowner Authority

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 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 the retails outlets at Haven Banks Retail Park, 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 large sum of money 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.

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 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 Code of Practice 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 e 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.


[STRIKE]5. Amount demanded is a penalty

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the time frame being considered by Smart Parking is applied instantly the vehicle entered the car park. The signage cannot be read safely from a moving vehicle.[/STRIKE]

[STRIKE]6. Failure to show evidence of reliable ANPR system

Smart Parking have 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 from 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.

7. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

If 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, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.[/STRIKE]

I therefore request that POPLA uphold my appeal and cancel this PCN.

Thank you for considering this appeal.

[STRIKE]Yours Sincerely[/STRIKE]

Changes suggested above, I have removed things that do not win (e.g. your final 2 points). And removed 'Yours Sincerely' because this is not a letter and you will not be signing/posting it to POPLA.

The appeal gets saved as a PDF, then uploaded under 'other' on the POPLA website. As you have already blabbed about driving (NEVER make that mistake next time, it's 100% winnable for a keeper!) you can also if you like, tick other boxes on the POPLA website but you really don't need to choose anything except 'other' as long as you do upload your PDF.

Come back & tell us later this month, when Smart throw in the towel!