Smart parking - wrong reg POPLA appeal

Paved_Paradise

Sorry, I did see that but didn't understand if it was something I should mention or if there was a template I should follow. All of this is completely alien to me and there is a lot to take in. I just wanted to make a start and get something done then add and edit to the more knowledgeable posters suggestions.

I know it must be frustrating trying to help someone who is a bit out of their depth but I really do appreciate any time you spare me

Redx

you should be searching this forum for posts where those points have been made and expanded upon, looking for paragraphs that have been put into previous popla appeals and adapting them and adding them into your own bespoke popla appeal

the fact that you didnt even say why you had not included them in your draft means I had to point them out again and only then did you decide to acknowledge their omission instead of querying them in your reply that included the popla appeal proposal (I said chuck everything in)

nobody here will write it for you, but you asked for comments so I provided them about what was missing , especially when you consider I had already pointed you at those omissions and gave you the search criteria


ps:- its alien to most people , we already know that, which is why we give them pointers to follow up on. if you already understood the topic we would have little or nothing to say (plus if you left out everything you didnt understand there would be little or nothing in your popla appeal)


ie:- its new to every newbie

Paved_Paradise

Redx wrote: »

you should be searching this forum for posts where those points have been made and expanded upon, looking for paragraphs that have been put into previous popla appeals and adapting them and adding them into your own bespoke popla appeal

the fact that you didnt even say why you had not included them in your draft means I had to point them out again and only then did you decide to acknowledge their omission

nobody here will write it for you, but you asked for comments so I provided them about what was missing , especially when you consider I had already pointed you at those omissions and gave you the search criteria

I have been searching for hours today and hours previous to reaching out on this forum. I am not asking for someone to write this for me, just some helpful advice which you have so kindly provided. I am not familiar with the abbreviations and legal process.

I am sorry I have seemed to upset you in some way, that was not my intention!

Redx

you have not upset me

I am a person that is very blunt and points out the basics and facts etc (like I did about laws and nations earlier , I have seen every rookie mistake and assumption after coming here for over 5 years already) - ie:- I read between the lines

when I have explicitly mentioned something and it has been ignored, my feathers are ruffled and I then go to town on what has been omitted due to the fact its been ignored or omitted , your reply should have included those issues as extra queries , proving you had read them , that you had researched them and required extra guidance

if I had to tell somebody something for a third time , that is when my blood pressure goes up and I leave that person in no doubt about it

you can look for de-minimis in the IPC CoP and see what it says , then look for it in the BPA CoP, then look for it in previous popla appeals and in any court cases where payment has been made and a judge has stated that the PPC accepted the varied contract because they accepted payment

you have never stated that you have read either or both of those CoP,s , whereas I have, many times, I actually stated BPA CoP errors in an earlier reply

hence why I mentioned them , so you can hone your poposed draft above

this is how this process works, meaning that at the end of it you get the best popla appeal you can muster

ie:- it is done through critique , when there isnt any critique left, its good to go

why am I spelling this out ?

so you and others can see how this process works

Coupon-mad

Paved_Paradise wrote: »

Am I right to assume if I throw enough mud, some is bound to stick?

With Smart, yes, probably! This person blabbed about the driver in the first appeal, then saw off Smart at POPLA in the same way as you plan to:

https://forums.moneysavingexpert.com/discussion/5886605/parking-at-the-gym

Even no keeper liability, despite the fact you might well have already blown that in the first appeal if you possibly blabbed about who was driving.

However you have missed the point about the NTK flaw; it's not this:

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.

It is simply that the NTK was a non POFA one as it had no 9(2)f warning.

Paved_Paradise

OK, so I have had another go at this and tried to add everything suggested.
Apologies if I have omitted anything this time.

Dear Sir/Madam,

Re: Parking Charge Reference number xxxxxx Vehicle registration xxxx

I am the Keeper of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was rejected on xxxx and they gave me POPLA code xxx.

The basis of my appeal is on the following grounds:

1) NtK does not meet PoFA 2012 requirement stated in paragraph 9(2)(f).
2) The correct amount of time was paid for and adhered to.
3) Any alleged breach of contract was de minimis.
4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
5) 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.
6) A compliant Notice to Keeper was never served - no Keeper Liability can apply.
7) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
8) Failure to show evidence of reliable ANPR system


1) NtK does not meet PoFA 2012 requirement stated in paragraph 9(2)(f).

Paragraph 9(2)(f) requires NtK to:

“warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given —
(i)the amount of the unpaid parking charges specified under paragraph (d) 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;“
On the NtK received there is no information fulfilling the above condition.
As Paragraph 4 states that:
“(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2) The right under this paragraph applies only if—
(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;”
failure to include the warning mentioned in paragraph 9 (2) (f) in the NtK issued by MET Parking Services and the fact that that MET Parking Services has not shown that the individual who they are pursuing is in fact the driver who was liable for the charge, means that MET Parking Services have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, 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 have the right not to name that person.

As only an evidenced driver can be told to pay and there is provided no evidence regarding who was driving, the parking charge cannot pursued without a valid NTK from myself as a keeper.

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.''

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 in 6061796103 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.”

2) The correct amount of time was paid for and adhered to.

The Vehicle (REGISTRATION) enterred the (CAR PARK ADDRESS) on (DATE) at (TIME) as evidenced by Smart Parking LTD photographs. Several attempts were made to pay for 2 hours of parking via the Ringgo app using (REGISTRATION) and met with an error. On one final attempt payment was accepted but this ended up being for a seperate Registration formerly used on said app (DIFF REG HERE?), a detail not noticed until the Parking Charge Notice was recieved on (DATE).

The attached invoice (LINK) proves the correct amount of time was purchased for the wrong vehicle however the location and times tally up. Smart Parking LTD have not offered any evidence of (WRONG REG) entering or exiting (CAR PARK ADDRESS) on the accused date.

As you can see on the Smart Parking LTD photographs. They have recorded the vehicle entering (CAR PARK ADDRESS) at 13:58:10 and leaving at 15:42:20 a stay of 1 hour 44 mins 10 secs. That is 15 mins 50 secs within the time purchased (2hrs) evidenced by the attached invoice.

This proves the correct amount of money was paid and no loss has been made to Smart Parking LTD and/or the Landowner.

I would like to add SMART accepted the new contract which had been varied for the incorrect reg, so the time had been paid for and SMART accepted payment and so accepted the new contract.

I would like to draw your attention to the following case where a motorist received a parking ticket as a result of them entering their registration number in wrong

Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

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

3) Any alleged breach of contract was de minimis.

Any alleged breach of contract was between the unnamed driver and the company named on the ticket at the pay and display ticket machine, i.e. the point of sale. Regardless, any alleged breached of contract was entirely de minimis, as parking was fully paid for. The law does not concern itself with trifles and does not encourage parties to bring legal actions for technical breaches of rules and agreements where the impact of the breach is negligible.
The evidence provided a pay and display ticket that covers the time and date in question was purchased. This technical breach has had negligible impact as parking was paid for in full. For the Claimant to pursue litigation for this is outrageous and wholly unreasonable.

4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

LINK

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

LINK

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

LINK

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

LINK

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

LINK

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

LINK

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5) 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. 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.

Furthermore, 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.'

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 in 6061796103 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.''

Continued....

Paved_Paradise

PART 2

6) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

The NTK must have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

7) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement

8) Failure to show evidence of reliable ANPR system

Also SmartParking 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 form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
SmartParking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

A correctly calibrated ANPR system and associated mobile phone software used to pay for parking should be able to know if a registration plate being entered by the customer using the car park has in fact entered the car park. In this case a payment was made for a car registration incorrectly entered and therefore never existed on the ANPR system however a payment for the correct amount covering the period stayed was still accepted. In these circumstances when a number plate entered does not match up with the ANPR system a warning should be generated by the system. A simple character recognition software or even a human being could then attempt to match the number plate recorded by the ANPR to the most closely matching number plate registered and paid for by the customer. To ensure accuracy of this simple yet effective measure the time the customer entered the car park could be correlated with the time the payment was made.

Paved_Paradise

Is anybody available to give my draft a quick once over?

Umkomaas

Paved_Paradise wrote: »

Is anybody available to give my draft a quick once over?

Quick skim, there's a limit to how many 5,000 word copy and pastes of the same stuff, looking for little slip-ups, errors or sloppy proofreading, regulars can go through day after day. So on that basis .....

1) NtK does not meet PoFA 2012 requirement stated in paragraph 9(2)(f).

In that block of text I can't see where/how you've spelled out precisely to a POPLA assessor (who is very likely to have had no legal training) just where the PPC has erred in claiming Keeper Liability.

I've just noticed your appeal point #6 - that should be amalgamated in appeal point #1, which then provides the answer to my question.

3) Any alleged breach of contract was de minimis.

My personal view would be not to include this. As it's written, there is a degree of admitting some culpability. POPLA do concern themselves with 'de minimis' issues, they will reject an appeal if one digit is incorrect, a whole VRM wrong and I don't think there's much chance with them. Their argument will not be about whether there was a technical failure, more whether the PCN was issued correctly.

LINK

Where possible, embed photos or scans into the appeal, to ensure the assessor has everything before their eyes rather than chasing all over the Internet for them. You should also be aware that some of the LINKS are old and some no longer work - check every one of them out.

5) 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

Strategically, this would be better promoted up the batting order to appeal point #2 as it is sequitur to No Keeper Liability.

explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Have you read the case? Do you have a court transcript for it to link/attach?

Do you think that 5 years after that case PPCs are still ignoring the outcome?

Paved_Paradise

Thank you Umkomaas

I have re-ordered, removed the de-minimis section and have used a different ANPR template.
I will make sure I embed the images on my final draft.

PART 1

Dear Sir/Madam,

Re: Parking Charge Reference number xxxxxx Vehicle registration xxxx

I am the Keeper of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was rejected on xxxx and they gave me POPLA code xxx.

The basis of my appeal is on the following grounds:

1) NtK does not meet PoFA 2012 requirement stated in paragraph 9(2)(f).
2) 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.
3) The correct amount of time was paid for and adhered to.
4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
5) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
6) The ANPR system is unreliable and neither synchronised nor accurate

1) NtK does not meet PoFA 2012 requirement stated in paragraph 9(2)(f).

Paragraph 9(2)(f) requires NtK to:

“warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given —
(i)the amount of the unpaid parking charges specified under paragraph (d) 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;“
On the NtK received there is no information fulfilling the above condition.
As Paragraph 4 states that:
“(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2) The right under this paragraph applies only if—
(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;”
failure to include the warning mentioned in paragraph 9 (2) (f) in the NtK issued by MET Parking Services and the fact that that MET Parking Services has not shown that the individual who they are pursuing is in fact the driver who was liable for the charge, means that MET Parking Services have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, 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 have the right not to name that person.

As only an evidenced driver can be told to pay and there is provided no evidence regarding who was driving, the parking charge cannot pursued without a valid NTK from myself as a keeper.

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.''

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 in 6061796103 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.”

A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

The NTK must have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

2) 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. 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.

Furthermore, 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.'

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 in 6061796103 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) The correct amount of time was paid for and adhered to.

The Vehicle (REGISTRATION) enterred the (CAR PARK ADDRESS) on (DATE) at (TIME) as evidenced by Smart Parking LTD photographs. Several attempts were made to pay for 2 hours of parking via the Ringgo app using (REGISTRATION) and met with an error. On one final attempt payment was accepted but this ended up being for a seperate Registration formerly used on said app (DIFF REG HERE?), a detail not noticed until the Parking Charge Notice was recieved on (DATE).

The attached invoice (LINK) proves the correct amount of time was purchased for the wrong vehicle however the location and times tally up. Smart Parking LTD have not offered any evidence of (WRONG REG) entering or exiting (CAR PARK ADDRESS) on the accused date.

As you can see on the Smart Parking LTD photographs. They have recorded the vehicle entering (CAR PARK ADDRESS) at 13:58:10 and leaving at 15:42:20 a stay of 1 hour 44 mins 10 secs. That is 15 mins 50 secs within the time purchased (2hrs) evidenced by the attached invoice.

This proves the correct amount of money was paid and no loss has been made to Smart Parking LTD and/or the Landowner.

I would like to add SMART accepted the new contract which had been varied for the incorrect reg, so the time had been paid for and SMART accepted payment and so accepted the new contract.

I would like to draw your attention to the following case where a motorist received a parking ticket as a result of them entering their registration number in wrong

Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

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

Continues.....