Pay by phone Fistral Beach

reddefender

including the fact the PCN was non-POFA

What is this?
I can't remember if I told them I was the driver. I can't even remember if the first appeal was online or by letter. I'm not the registered keeper but I'm a named driver on the insurance.

I've had a stab - Point 1 seems irrelevant as the PCN arrived within 14 days of the 'offense', and Point 4 seems redundant as it was the phone system that didn't work, so camera accuracy is a bit of a red herring. Still, I can't find any relevant legalese about phone payment. Trouble is if I take these two out it's a pretty short appeal...



On 7 August 2018, Smart Parking issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”!

As the registered keeper I wish to refute these charges on the following grounds:
1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012)
2) No clear signage at entrance to car park
3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
4) ANPR Accuracy and Compliance
5) Smart Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
6) Pay by Phone accuracy and fallibility.


1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

To support this claim further the following areas of dispute are raised:
• The NTK was not served within the required 14 days to transfer keeper liability

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met as outlined in paragraphs 5, 6, 11 & 12,
Smart Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, as outlined within paragraph 9. Specifically, they have failed to include the mandatory timeline and wording:
The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

This appeal would like to specifically highlight subsection (b) as the received NTK was delivered by post. Furthermore, paragraph 9 (5) defines a relevant period as “..the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent appellant arrived after the period specified in paragraph 9. Therefore, this serves to highlight that Smart Parking have failed to act in time for keeper liability to apply. As a result, the appellant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012.
Upon receiving the Notice to Keeper it lacked any description detailing the parking charges owed from the alleged extended stay stating only that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted, neither of which is a ‘fact’.

The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

2) No clear signage at entrance to car park.
To support this claim further the following areas of dispute are raised:
The single entrance /exit to car park has no clear signage before entry to state any terms, conditions to be adhered to, therefore no contract could possibly be established upon entry.
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 into 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?

3) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver
To support this claim further the following areas of dispute are raised:
The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Bearing this paragraph in mind, there was categorically no contract established between the driver and Smart Parking. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.
As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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:

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 and poorly placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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.

As someone who designs advertising posters for a living, I can say that 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 the majority 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 operator’s 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, particularly to when a parking charge starts and finishes.


4) ANPR Accuracy and Compliance
To support this claim further the following areas of dispute are raised:

Considering that Smart Parking is suggesting that it knows when I arrived and left the car park, I call into question the ANPR system accuracy of all cameras within the car park
Therefore, I require the Operator to present records which prove:
• The Manufacturers' stated % reliability of the exact ANPR system used on this site
• 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, and by whom.

These documents are fundamentally important as the entirety of the charge is being founded on two images purporting to show my vehicle entering and exiting at specific times. Even with a firm understanding of probability laws, Smart Parking expects me to believe that their system has a zero failure rate and zero buffering delay. Therefore, Smart Parking must be expected to produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system previously ruled against. In the case of ParkingEye verses Fox-Jones on the 8th November 2013 the case was dismissed by the judge, ruling that the equipment was “…fundamentally flawed...” on the basis that the synchronisation of the camera pictures and the time had been called into question. The Operator was unable to rebut the claim.

Considering this case, it is believed that a local camera captured the image via a remote sever and then added the time stamp. As the two separate components are disconnected by the internet and do not share a common ‘time synchronisation system’, there is no proof that the time stamp included on the images is an actual representation of the exact time the image was captured. Furthermore, as the Operator appears to use WiFi the ANPR system succumbs to a buffering delay when receiving information, suggesting that “live” data is not really live but a delayed response. Therefore, without a synchronised time stamp there is no evidence that the image is ever truly time stamped accurately. Therefore, I contend that any ANPR ‘evidence’ put forth by Smart Parking is as unreliable.

5) Smart Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
To support this claim further the following areas of dispute are raised:

It is suggested that Smart Parking does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Smart Parking be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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

6) Pay by Phone accuracy and fallibility.
Errors using mobile phones are more likely to occur due to auto correct functionalities that exist in all smart phones these days. Smart phone keypads are designed to assist in correctly inputting words due to the increased chance of making mistakes when using touch screen technology with small keypads. Number plates being unrecognised series of characters for such software can easily be automatically changed edited or altered without the user noticing.

It is improbable to assume that Smart Parking’s voice recognition technology never fails. I would like to know what tests are carried out ensure that Smart Parking’s voice recognition technology and its app is fit for purpose. I would also like to know the % of dropped calls to Smart Parking and the % of time that there is a usable signal at Fistral Beach to use the phone payment system.

KeithP

Your last paragraph is, at best, written wrongly.

There is no point in writing things like "I would like to know..."

PoPLA clearly state on their website that they do not go and collect evidence on your behalf.

You need to assert that such and such happens or does not happen.

Then when the PPC does not challenge those statements you point that out to the assessor.

Coupon-mad

including the fact the PCN was non-POFA What is this?

Eh? You know what that means and you put it as your first appeal point!

Upload it under OTHER on the POPLA website. No other choices of 'reasons' box.

I think POPLA still consider appeals even if the person has made the mistake of paying (she says through gritted teeth, still can't believe you are here and you did that)!

reddefender

OK, last question. The NTK - is this the first letter they sent me to tell me I owe them £100, or the follow up that dismissed my opening appeal?
Their first letter seems pretty kosher in that it ticks all the right boxes and was sent on;y 8 days after the car was parked. As far as I can see, I can't get them on NTKs. Maybe they're getting their act together and sending them out faster...

KeithP

It's the first letter they sent to the keeper.

reddefender

Thanks KeithP

I've binned the whole para about NTK as it no longer seems relevant.
Have amended the last para:

6) Pay by Phone Issues.
Errors using mobile phones are more likely to occur due to auto correct functionalities that exist in all smart phones these days. Smart phone keypads are designed to assist in correctly inputting words due to the increased chance of making mistakes when using touch screen technology with small keypads. Number plates being unrecognised series of characters for such software can easily be automatically changed edited or altered without the user noticing.

It is improbable to assume that Smart Parking’s voice recognition technology never fails. Two calls were made to Smart Parking. The first failed to recognize the VRN despite several attempts being made to input it. The call dropped due to a poor phone signal at Fistral Beach. The second call appeared to have been a success. See screengrabs of the calls made.
Fig.
If a fault occurred with the payment by phone facility that caused the payment not to go through, then this is certainly within Smart Parking’s control, not the driver’s fault as was found in Claim No COFC15W4, ParkingEye v Mrs G, before Judge Middleton at Bodmin County Court on 26/10/16:
Link

In this case under appeal now, there was a failure in the phone payment system.

reddefender

Ahh. Just got this from POPLA:
"Good day

Thank you for your recent appeal. Please accept my apologies for our previous email. This was sent in error through our automatic withdrawal process.

The operator has informed us that you have paid the Parking Charge Notice (PCN). As you have made payment, we will withdraw your appeal, as it is not within our remit to assess an appeal against a fully paid PCN.

If you wish to continue to dispute the issue of the PCN, there may still be options available, however POPLA is not able to be involved. For confidential and impartial advice, you may wish to contact Citizens Advice: https://www.adviceguide.org.uk or call 0345 404 0506 (English) or 0345 404 0505 (Welsh)."

I'm sure CAB won't help. Any suggestions?
I feel that I have failed you all

Coupon-mad

Hmmm well you did pay it, but in the past POPLA used to make decisions that told the PPC to 'cancel or refund' the charge, and there was even a statement from POPLA about that position.

The only thing you could do would be to sue Smart Parking but I can't see you doing that if you gave up and paid when pointed to the template POPLA appeal wording to copy & paste. Suing them takes research and time and the NEWBIES thread, and you might not win it, as you chose to pay them and effectively admitted liability.

First poster ever seen, to pay Smart when at appeal stage...