POPLA Stage (Appealing against SMART Parking)

nosferatu1001

Call POPLA, tell thenm you cannot see SMARTS response.

SmartPCN

Yes, thank You, I have called them earlier, they have mentioned they have received a response from the operator and they are going to email me, so awaiting their response, I will update once I have got the correspondence.

Many thanks

nosferatu1001

Make sure you TELL them your 7 days starts frmo when you get sight of the operators case, NOT from when their system says it starts.

SmartPCN

Case Summary

On the DD/MM/2018 the vehicle with registration P________ was captured by the cameras at EARL HAIG, HOUNSLOW entering and exiting the car park.

The car park in question is an Automatic Number Plate Recognition (ANPR) camera system and Pay by Plate monitored car park. Every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by. When the vehicle enters it creates one image which will then be paired with the subsequent exit image. The system then compares the time a vehicle has been on site with the amount of parking time purchased using the Vehicle Registration Mark (VRM). If the vehicle overstays the paid parking time or there is no payment for the vehicle registration which was captured by the ANPR, a Parking Charge Notice will be created and sent out to the registered keeper.

In the Appellants appeal to POPLA the Appellant states that they have attached an appeal report. in the attached letter, the Appellant has stated that there is no keeper liability and the operator has not shown that the individual who it is pursuing is in fact liable for the charge. The Appellant has stated that the charges breaches BPA on ANPR’s. the Appellant has also stated that the signs are not prominent clear or legible.

We would like to clarify that this Parking Charge Notice was issued for insufficient paid time. The contravention of insufficient paid time is issued when there is no payment or there is an underpayment for the vehicle registration mark. As there was no payment made for vehicle registration mark P________, we can confirm the Parking Charge Notice was correctly issued for insufficient paid time. It is the responsibility of the motorist to ensure they purchase a valid ticket for their full, correct vehicle registration mark and for the duration of their stay when using this car park.

Firstly, Smart Parking Limited would like to make the assessor aware that we acknowledge the Appellant stating that they were not the driver on the date of contravention. However, as seen below in correspondence, the original appeal made to Smart Parking was also made by the registered keeper of the vehicle and the Appellant <Firstname Surname> stating “I” to being the driver of the vehicle on the date of contravention. Due to liability being accepted and the registered keeper confirming they were the driver on the day, the parking charge notice has been pursued correctly.

The Appellant has provided evidence of their parking ticket they purchased form the payment machine and the ticket clearly shows that the motorist entered vehicle registration “P” instead of vehicle registration “P________”. The evidence provided confirms that the Appellant incurred the parking charge notice correctly as the terms and conditions were not adhered to on the date of contravention. As the signage clearly displays on site, ““motorists must enter their full, correct vehicle registration and collect a ticket at the payment machine upon arrival.” We would like to clarify that the payment machines do not have the knowledge to know if a vehicle registration is being entered correctly or not, which is why it is important that motorists enter the full and correct VRM so the payment can be assigned to the correct vehicle.

We would like to clarify that the site in question is ANPR operated, every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by, which is why it is important that motorists enter their full, correct registration so this can be calibrated to the images of their vehicle obtained from the ANPR cameras to determine whether the vehicle did in fact pay for adequate or inadequate time. As the signage clearly displays on site, “vehicle registration numbers must be entered in to the pay and display machine.” As per the evidence below on our payment system, there is no payment logged against the full and correct vehicle registration and therefore, as the Appellant as a motorist failed to do this and remained on site for 239 minutes, the parking charge has been correctly issued.
As the signage clearly displays on site, “Motorists must enter their full correct vehicle registration when using the payment machine.” We would also like to clarify that the signage states “you can purchase additional time (if required) at the payment machine before leaving.” and therefore the motorist could have purchased another ticket from the machine for the full and correct vehicle registration mark had they of realised at the time that they had entered their own vehicle registration instead of the vehicle they were driving. As the Appellant failed to do this, the parking charge notice was correctly issued.

We would like to clarify that sufficient time is allowed for motorists to enter the car park, read the terms and conditions and decide whether to purchase a ticket or leave the car park. We would like to confirm that this period was exceeded and as the Appellant failed to purchase valid ticket against their full correct vehicle registration and Appellant remained on site for 239 minutes, the parking charge was correctly issued.

With regard to the amount of the charge, a pre-estimate of loss is no longer a requirement by the BPA as of October 2014. As per the BPA guidelines (October 2015) the amount must be proportionate and commercially justifiable. The signage around the car park clearly advises that any motorists parked in breach of the advertised terms and conditions may incur a PCN. This has always been clearly distinguished by Smart Parking Ltd as a PCN and has never been called or disguised as anything else. The charge takes into account the commercial costs incurred in pursuit of a motorist who has breached the advertised Terms and Conditions.

Please also be aware that on the 4th November 2015 The Supreme court dismissed Mr Beavis’s appeal by a majority of six to one, and declared that the charge appealed does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.

The £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Furthermore, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.

Please see this link for a summary of the Judgment;
https://www.supremecourt.uk/cases/docs/uksc-2013-0280-press-summary.pdf
Furthermore, Smart Parking Ltd clearly display the reasons in which a parking charge notice can be issued, stating “motorists must enter the full correct vehicle registration when using the payment machine. Failure to comply with this will result in a Parking Charge of £100.00" therefore as no ticket was purchased for the full correct vehicle registration and the Appellant remained on site for 239 minutes breaching the advertised terms and conditions the parking charge has been correctly issued.
The BPA Code of Practice October 2015, states drivers must be given advance notice of all parking charges before they enter into the contract for parking services. There are several signs situated around the car park that advise of the terms and conditions and we can confirm all signage on site is BPA approved. Please be aware all signs are set to a standardised height, regulations and written in clearly and intelligible language; as per the BPA requirements. There is no ambiguous language or jargon on any of the Smart Parking signs at this site.

Overall as the Appellant failed to purchase a valid ticket for their full duration of stay, this confirms the Parking Charge Notice was issued correctly and in accordance to the terms and conditions of the site. It is clearly stated on the signage “vehicle registration numbers must be entered in to the pay and display machine” and “Failure to comply with the terms and conditions will result in a charge of £100.00.” This confirms the Parking Charge Notice was issued correctly and in accordance with the advertised terms and conditions.

The vehicle entered the site at 6:10:53PM and exited the site at 10:10:03PM. The driver’s total duration of stay was 239 minutes. As the driver failed to purchase a ticket for their full duration of stay, the driver therefore failed to comply with the advertised terms and conditions and this confirms the Parking Charge Notice was issued correctly. It is the responsibility as a motorist to ensure that they pay for their full duration of stay and enter their full, correct vehicle registration into the payment machine. It is also the responsibility of the motorist to clearly acknowledge the signage located around the site. As the driver failed to pay for their full duration on site, the parking charge notice was issued correctly. Within Section 13.4 of the BPA Code of Practice, it states “the Grace Period at the end of the parking period should be a minimum of 10 minutes.” We can confirm the grace period at the site is 10 minutes. Based on the evidence provided, it is apparent that the motorist remained on site for 239minutes and so has exceeded the minimum of 10 minutes as stated within Section 13.4 of the BPA Code of Practice.

The car park is private land and the owners allow access to the public on condition that they park according to the advertised terms and conditions, the signs warn that non-compliance may result in a parking charge notice. Persons entering the car park are, in effect, agreeing to the terms and conditions and if they park in breach of the terms and conditions the landowner has a right to make a charge. The terms and conditions of the car park are requested by our client and Smart Parking Limited as an agent enforces these.

In the light above and evidence enclosed. Smart Parking Limited have decided to uphold the parking charge notice.

Parking charge notice and any notes

The Parking Charge Notice was issued to the registered keeper due to insufficient paid time. As the motorist failed to purchase a ticket against their full duration of stay, the motorist therefore incurred a Parking Charge Notice correctly.

Registered keeper details and liability trail
As of the 3rd August, 2018, DVLA confirmed that <FirstName Surname> was the registered keeper of the vehicle. No driver details were disputed.
Original representations and notice of rejection
All representation was made by the Appellant <FirstName Surname> to Smart Parking Limited and to POPLA. The appeal was unsuccessful, and rejected by Smart Parking Limited on 7th September, 2018.

Images and Plans

There are numerous signs located around the site that inform motorists of the advertised terms and conditions. The terms and conditions clearly state “Parking tariff applies 24 hours Monday- Sunday”, “You can purchase additional time (if required) at the payment machines before leaving” and “Failure to comply with the terms and conditions will result in a charge of £100.00.” As the motorist failed to purchase a ticket against their full, correct vehicle registration and full duration of stay, the motorist therefore breach the terms and conditions and incurred a Parking Charge Notice correctly, as per the signage.
As per BPA code of Practice (October 2015, paragraph 28.3) signage must contain the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450 mm. We would like to confirm that all signage around the car park including the entrance sign are written in clearly and intelligible language as per the BPA requirements. There is no ambiguous language or jargon on any of the Smart Parking signs at this site. All signage is BPA approved.

Other evidence
Smart Parking Limited have enclosed the payment system confirming the Appellant failed to purchase a valid ticket for their full correct, vehicle registration to cover their full duration of stay. Therefore the PCN was issued correctly.

nosferatu1001

Did you require them to prove standing with a copy of the contract? If so yo uwin, as they havent included it - just the payment system.

SmartPCN

Initial appeal i did was the below for which Smart parking has sent an screen shoot within the case summary, they highlighted my email address in the screen shot:

"Yes, I do appreciate for the pictorial facts, I did enter the car park around that time, It took me almost 3 minutes to get around and finally I managed to get a ticket I mean I paid for the parking and I have a valid ticket which states start time of 18:15 and ticket states it was valid until 22:15 I did even display the ticket on my dashboard and came out once during this period to check.
Lastly, I left the car park as that can be easily visible on the picture of my car leaving time @22:10 which is 5 minutes earlier than the finish time of 22:15.
I am totally confused that even after I paid I got the ticket, please kindly help and advise."

Smart parking has also sent a screen shot from their payment systems which has a lot of number plates and an entry with "P" which is the ticket I bought with the same time and the amount paid for 240 minutes. I don't know how to attach that to this forum to show.

SmartPCN

Dear nosferatu1001, do you mean the below in response to your question "Did you require them to prove standing with a copy of the contract? If so yo uwin, as they havent included it - just the payment system.
", I have included this in my original appeal document as point 3:

3) Smart Parking has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.

I require an underacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

I do not believe that the contract allows Smart Parking to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.
Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“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.''

nosferatu1001

Yes, of course I mean that...

So unless youre hiding something, they havent even comnmented on the contract issue?
If so, you state this to POPLA and you win.

SmartPCN

nosferatu1001 wrote: »

Yes, of course I mean that...

So unless youre hiding something, they havent even comnmented on the contract issue?
If so, you state this to POPLA and you win.

Dear Sir, I am not hiding anything, this forum does not allow me to post pictures or any document, I really wanted to upload the whole document I have receive but unable to do so.

Total document pages are 11,
out of which 4 of them contains the above case summary which I have pasted.
Page 5 contains the correspondence from the first appeal to enquiry,
Page 6 contains their original rejection letter based on my initial appeal submitted to Smart Parking,
Page 7 contains my car entry and exit pictures in zoom view.
Page 8 contains SmartParking online dashboard screen shot which has my car number plate (based on entry and exit).
Page 9 contains their payment screen shot which has several other number plates in excel format view and an entry showing "P" and paid for 240 minutes. With this screen shot they have also stated in a small text box "As seen on our payment system, there is a payment logged against “P” but as this is not the Appellants full and correct vehicle registration “P________” the parking charge notice has been issued correctly."


Page 10 and Page 11 are the signage pictures of the Earl Haig.

Lastly, POPLA along with case summary document has also sent me the original PCN PDF file as well.

I hope this clarifies everything.

nosferatu1001

I didnt mean "hiding" negatively - I was checking that truly, SMART have not even *mentioned* the contract, let alone provided a copy of the contract?

You can of course provide links - dead ones. Change HTTP to HXXP, and we will then correct the link and make it live

Youve put your reg number in! EDIT THAT POST NOW.