POPLA appeal - Smart Parking draft advice please

BellaJones123

Hi,
I committed the first sin and appealed to a parking charge from Smart Parking before finding the fabulous NEWBIES forum, so I’ve already admitted to being the registered keeper and driver. I can almost hear you all sighing ! So frustrating as the charge wasn’t received until 30 days after the supposed contravention so it would have been easy. Needless to say the appeal was rejected so I now have a POPLA code.
However, I have subsequently spent many an hour hopefully digesting all your advice and come up with a draft appeal which I would be really grateful for someone's advice on.
Facts of the case (though largely irrelevant from what I've read): I paid to park for 3 hours in a private car park managed by Smart Parking. Left well within the designated time. Returned soon afterwards as discovered I had lost an item which was most likely when I got back in the car. Was back in the car park for 12 minutes. Some 30 days later got a ANPR Parking Charge for the 12 minute "stay".

Proposed draft:

[FONT=&quot]POPLA Ref No.xxxxxxxxxxxxxxxxxxxxx

I am the registered keeper of xxxxxx and I wish to appeal a recent parking charge from Smart Parking and 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[/FONT]
[FONT=&quot]2. Insufficient signage[/FONT]
[FONT=&quot]3. Authorised user and genuine customer earlier the same day[/FONT]
[FONT=&quot]4. No evidence of Landowner Authority

[/FONT][FONT=&quot]1. Grace Period: BPA Code of Practice –non-compliance[/FONT]
[FONT=&quot]The vehicle entered the car park at hh:mm and left at hh:mm[/FONT]

[FONT=&quot]The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

[/FONT][FONT=&quot]BPA’s Code of Practice (13.1) states that:[/FONT]
[FONT=&quot]“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.”[/FONT]
[FONT=&quot]BPA’s Code of Practice (13.2) states that:[/FONT]
[FONT=&quot]“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.”[/FONT]
[FONT=&quot]BPA’s Code of Practice (13.4) states that:[/FONT]
[FONT=&quot]“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.”[/FONT]
[FONT=&quot]BPA’s Code of Practice (18.5) states that:[/FONT]
[FONT=&quot]“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
[/FONT]
[FONT=&quot]The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. It is therefore reasonable to suggest that the minimum of 10 minutes grace period stipulated in .13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice. [/FONT]
[FONT=&quot]
The vehicle in question was in and out of the car park within 12 minutes. This time was necessary in order to read and understand the necessary signage and decide to leave again without incurring additional costs to those already paid earlier in the day for a 3 hour stay.[/FONT]

[FONT=&quot]2. Insufficient signage[/FONT][FONT=&quot]

There are no signs from Smart Parking displayed at the entrance to the car park. The sign is positioned further inside the entrance and parallel with the direction of travel, so a driver would be unable to read the sign whilst driving into the car park. 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 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. returning to the car park for a matter of minutes after an authorised visit in order to look for a lost item, is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

Photos of entrance to car park evidencing no visible signage (I have images but it appears I can't post without signing up to a hosting site)

3. Authorised user and previous customer earlier that day

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 £100 (or £60 if paid promptly) charge is a conscionable amount to be charged to a genuine customer from earlier that day. The customer had paid the amount due for 3 hours parking and left well within that time limit. Then a short while later that day briefly returned to look for a lost item that was most likely dropped when getting back into their vehicle. [/FONT]
[FONT=&quot]
4. No evidence of Landowner Authority

The operator is put to strict proof of full compliance with the BPA Code of Practice.[/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot]The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer'(see point 2) 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:[/FONT]
[FONT=&quot]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

[/FONT]
[FONT=&quot]For the reasons stated above, please would you consider my appeal.[/FONT]

Coupon-mad

Does the signage say 'no return within' x hours?

Does the signage say that if you paid for 3 hours you can't leave & return within that 3 hours paid for time, which you are saying you did:

Facts of the case (though largely irrelevant from what I've read): I paid to park for 3 hours in a private car park managed by Smart Parking. Left well within the designated time. Returned soon afterwards as discovered I had lost an item which was most likely when I got back in the car. Was back in the car park for 12 minutes. Some 30 days later got a ANPR Parking Charge for the 12 minute "stay".

Was the 12 minute return period still within the expiry time of the paid parking?

If so, I would say so to POPLA and point out there is nothing to say that during the paid for period that the car must stay put.

BellaJones123

Thank you Coupon-mad for taking the time to reply. There is nothing on the signage about leave and return or no return within x hours;. It says Duration of stay calculated by ANPR cameras from point of entry to point of exit.
From the background reading I've done on the forum, I decided to avoid adding the complications that arose, but it would be good to have your opinion:
1) I used an App to pay for my initial parking session.
2) I entered that 2 hours parking was required, intending to stay from, say, 12:00;14:00 (however see c) below)
3) I returned within the 2 hours and left the car park
4) I discovered I had lost an item on the way home and returned to the car park at 14:44 and left again at 14:56
However,
a) I had only used the App a handful of times, usually choosing to phone and pay instead, and hadn't realised that the App defaulted to my previous vehicle (sold 2 years ago). It was only this appeal that made me check the history on my App. Viewing the history brought to light the fact that I had paid to park my old vehicle
b) When checking the history, despite the registration number being my old car (my current car is also on there for the times when I had paid by phone), the start/end date of the parking was 2 hours (ie. 12:00-14:00), and the amount charged was £3.00.
c) Having revisited the car park at the weekend to obtain the photographs, the signage states that a £3.00 fee covers 3 hours parking (ie. 12:00 to 15:00). In which case the whole leave/return/leave saga will have been within the 3 hour period.
My interpretation of the advice from the forum is that I should stick with appealing on the grounds of their failings rather than involve the specific circumstances of the wrong vehicle being parked.
Do you agree that I should leave the above facts out of the appeal given the circumstances ?
As I'm sure is the case in most parking grievances, this has become equally a matter of principle as it is cost. If my appeal is successful, I will gladly donate half of the original penalty charge to a charity of your choice in acknowledgement of the forum!'s help.
Look forward to hearing from you.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

BellaJones123

Interesting viewing, thanks The Deep. Delighted to see that serious action is being taken and hopefully these unscrupulous companies will soon be no more,.

Coupon-mad

b) When checking the history, despite the registration number being my old car (my current car is also on there for the times when I had paid by phone), the start/end date of the parking was 2 hours (ie. 12:00-14:00), and the amount charged was £3.00.
c) Having revisited the car park at the weekend to obtain the photographs, the signage states that a £3.00 fee covers 3 hours parking (ie. 12:00 to 15:00). In which case the whole leave/return/leave saga will have been within the 3 hour period.

So - trying to understand Smart's allegation here - what period does the PCN cover, does it only mention the 12 minutes?

Or does it show the first arrival and last exit?

My interpretation of the advice from the forum is that I should stick with appealing on the grounds of their failings rather than involve the specific circumstances of the wrong vehicle being parked.
Do you agree that I should leave the above facts out of the appeal given the circumstances ?

Depends on what the PCN says about the parking time, as above. Which is it?

BellaJones123

The charge is only for the 12 minutes, so only the return visit. I can't explain why I didn't also get a charge for the initial period, given the mistake in the vehicle registration of the parked vehicle, unless their systems are intelligent enough to check both registration numbers on my App account ?

Coupon-mad

It's very odd, because you would have expected them to have issued 2 PCNs, or one for the whole period as if it was one visit, due to the lack of matching VRN.

I can only think that your first entry image wasn't picked up on camera.

Difficult to decide whether you alert them to the initial parking period or not! I think I wouldn't. Just go for the usual templates, plus 'not enough grace period' and put it that the driver arrived and it was too busy to park so they had to leave...

BellaJones123

Thanks Coupon-mad. Will report back when I have an appeal decision.

Coupon-mad

We'd like to see the draft appeal, first, so you don't miss anything out.

BellaJones123

Uh oh. Immediately after my last posting I locked myself away to submit my appeal. I had expected it to be a quick copy/paste from the draft I had been adapting but alas not. So it wasn't until 2 hours later that I emerged and saw your request for a final view of the draft before I submitted. Soz ! Given that I had already offered up the fact of the initial parking period in my original appeal to the operator, I decided to include that fact alongside the subsequent 12 minute return visit.
[STRIKE]To make any other readers aware, the POPLA appeal process requires you to split out each separate "argument" into separate sections of the appeal submission (therefore also requiring you to split out any documentary/photographic evidence for each separate argument). So you can't simply copy a draft of your appeal in its entirety and paste it into your submission. I ended up with about 8 or 9 different commentaries/pieces of evidence.
I will reconstruct the appeal into a single document and repost here in due course. I'm surprised there is no facility to view your full appeal on the POPLA site but it appears not, only tracking the progress.[/STRIKE]
In the meantime, thanks once again Coupon-mad.