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SMART Parking Fine - 7 days for comment
Porkpie1618
Posts: 5 Forumite
Good Afternoon All,
I'm posting this here to search for help with regards to parking charge we received earlier this year. I’ll just explain the timeline.
Originally we paid a ticket into an ANPR system, but I had incorrectly typed the Reg number. We received a NtK 10 days later, My wife is the registered keeper and wrote on the online challenge:
I phoned SMART a day before the 14 days were up to make sure they received it.
They wrote back a few weeks later rejecting our appeal so we wrote to Popla. Below is what was sent, based on the advice from this forum. We didn’t appeal based on the ticket mistake but on the grounds of:
1) Insufficient signage that is not clear and legible
2) Keeper liability
3) 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
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
Appeal re POPLA Code: v Smart Parking Ltd
Vehicle Registration:
POPLA ref:
I, the registered keeper of this vehicle, received a letter dated 2018 acting as a notice to the registered keeper. My appeal to the operator – Smart Parking Ltd – was submitted and acknowledged on 2018 but subsequently rejected by a letter dated 2018. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
I am appealing as the registered keeper. Whilst I was an occupant of the vehicle, the actual driver of the car has never been identified and this remains the burden of the parking operator.
The basis of my appeal is on the following grounds:
1) Insufficient signage that is not clear and legible
2) Keeper liability
3) 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
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
1) The signs in this car park are not prominent, clear or legible.
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
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:
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:
IMAGE
The signs in are shown below:
IMAGE
IMAGE
IMAGE
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:
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.
2) Keeper liability
If Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule.
I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.
The BPA code of practice stipulates:
20.12 An effective ‘Notice to Keeper’ within the meaning of POFA 2012, must meet the requirements of Schedule 4 of the Act. In particular:
The PCN from Smart Parking does not fully comply with the following sub-clauses of POFA 2012 Schedule 4 paragraph 9 as quoted below:
3) 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. I am the appellant throughout (as I am entitled to be), and 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:
“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.''
4) Lack of standing/authority from landowner
Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent).
Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.
I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for Smart Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
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:
I appreciate you taking the above into account during your objective considered assessment.
I'm posting this here to search for help with regards to parking charge we received earlier this year. I’ll just explain the timeline.
Originally we paid a ticket into an ANPR system, but I had incorrectly typed the Reg number. We received a NtK 10 days later, My wife is the registered keeper and wrote on the online challenge:
“My husband purchased the ticket for 2 hours and accidentally got the c’s the wrong way round in the registration (see attached). We have used the car park many times before and never violated the terms and conditions. As a gesture of goodwill, I ask you to waive the charge.”
I phoned SMART a day before the 14 days were up to make sure they received it.
They wrote back a few weeks later rejecting our appeal so we wrote to Popla. Below is what was sent, based on the advice from this forum. We didn’t appeal based on the ticket mistake but on the grounds of:
1) Insufficient signage that is not clear and legible
2) Keeper liability
3) 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
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
Appeal re POPLA Code: v Smart Parking Ltd
Vehicle Registration:
POPLA ref:
I, the registered keeper of this vehicle, received a letter dated 2018 acting as a notice to the registered keeper. My appeal to the operator – Smart Parking Ltd – was submitted and acknowledged on 2018 but subsequently rejected by a letter dated 2018. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
I am appealing as the registered keeper. Whilst I was an occupant of the vehicle, the actual driver of the car has never been identified and this remains the burden of the parking operator.
The basis of my appeal is on the following grounds:
1) Insufficient signage that is not clear and legible
2) Keeper liability
3) 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
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
1) The signs in this car park are not prominent, clear or legible.
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
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:
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:
IMAGE
The signs in are shown below:
IMAGE
IMAGE
IMAGE
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:
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.
2) Keeper liability
If Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule.
I have had no evidence that Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.
The BPA code of practice stipulates:
20.12 An effective ‘Notice to Keeper’ within the meaning of POFA 2012, must meet the requirements of Schedule 4 of the Act. In particular:
• paragraphs 6 (1) (a) and 8 (2), if you have already given an effective Notice to Driver at the time of the parking event
• paragraphs 6 (1) (b) and 9, if you have not given an effective Notice to Driver.
• paragraphs 6 (1) (b) and 9, if you have not given an effective Notice to Driver.
The PCN from Smart Parking does not fully comply with the following sub-clauses of POFA 2012 Schedule 4 paragraph 9 as quoted below:
(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(f) 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;
The PCN does not explicitly provide this information; so does not comply with the BPA code point 20.12.(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(f) 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;
3) 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. I am the appellant throughout (as I am entitled to be), and 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:
“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.''
4) Lack of standing/authority from landowner
Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent).
Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.
I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for Smart Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
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
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
I appreciate you taking the above into account during your objective considered assessment.
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Comments
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Popla have just emailed us with SMARTs rebuttal which is below:
Case Summary-
On the XX 2018 the vehicle with registration XX was captured by the cameras at XX 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 thevehicle 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 becreated and sent out to the registered keeper.
In the Appellants appeal to POPLA the Appellant states that they are appealing the charge as the registered keeper. The Appellant has stated that their appeal is based on the following grounds:
insufficient signage that is not clear and legible, keeper liability, the operator has not shown that theindividual who it is pursuing is in fact the driver and no evidence of landowner authority.
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 XX , 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 XX 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.
We would like to clarify that it is up to the motorist to take into consideration their time on site. Sufficient time is taken in to consideration for driver’s to enter the car park, read the terms and conditions, and decide whether to purchase a ticket or leave the car park. The terms and conditions of the site clearly state “By parking or remaining in this car park you agree to the terms of parking contract (if you don’t agree to them then please leave within 10 minutes of entry).” Had the Appellant acknowledged the signage in the car park they would have been aware of the terms and conditions of the site. The signage on site clearly states “Parking tariff applies, car park open 8am-11pm” and “failure to comply with the terms and conditions will result in a parking charge of £100.” Therefore, as the driver failed to purchase a valid ticket against the full correct vehicle registration and remained on site for 113 minutes, the driver incurred the parking charge correctly.
We can further confirm that Smart Parking Limited do not operate CCTV on site. 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. It is important that the Appellant purchases their time on site for their full and correct vehicle registration so this can be matched up with the images taken by the ANPR cameras. As the Appellant failed to do this and remained on site for 113 minutes, the parking charge has been issued correctly.
Had the motorist of realised on the day that they needed to purchase a ticket to avoid incurring a parking charge, they could have purchased one to cover the full duration of their stay before exiting the car park. As the Appellant failed to do this and remained on site for 113 minutes, the parking charge notice 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 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. Furthermore, Smart Parking Ltd clearly display the reasons in which a parking charge notice can be issued, stating “Vehicle registration numbers must be entered into the pay and display machine. Failure to comply with this will result in a Parking Charge of £100.00", Therefore, a valid ticket needed to be purchased for the full correct vehicle registration covering the full duration of their stay on site. As the motorist remained in the car park for 113 minutes 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 against their full, correct vehicle registration, 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 “motorists must enter their full correct vehicle registration when using the payment machine”. This further confirms the Parking Charge Notice was issued correctly and in accordance with the advertised terms and conditions.
The driver entered the site at 10:24:31am and exited the site at 12:17:44pm. The driver’s total duration of stay was 113 minutes. As the signs clearly state “Parking tariff applies, car park open 8am-11pm”. The driver therefore failed to comply with the advertised terms and conditions and this confirms the Parking Charge Notice was issued correctly.
British Parking Association’s (BPA) Code of Practice. 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 driver remained on site for 113 minutes and so has exceeded the minimum of 10 minutes as stated within Section 13.4 of the BPA Code of Practice. There are various signs located around the site including entrance signs that states the terms and conditions of the site. The signs do state failure to comply with the advertised terms and conditions will result in a parking charge notice of £100 discounted at £60 if paid within 14 days. The terms and conditions are clearly advertised stating in which circumstances a parking charge notice may be issued. Had the driver acknowledged the signage on site they would have been aware of the terms and conditions.
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 light of the 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 failing to purchase a valid ticket
for the duration of their stay from the payment machine, therefore incurred a Parking Charge Notice
correctly.
Registered keeper details and liability trail
As of the 23rd July 2018, DVLA confirmed that XX 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 XX to Smart Parking Limited and to POPLA.
The registered keeper’s appeal was unsuccessful, and rejected by Smart Parking Limited on the XX 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, car park open 8AM-11PM” and “failure to comply with the terms and conditions will result in a parking charge of £100.” As the Appellant has failed to purchase a ticket for their full correct vehicle registration to cover their full duration of their stay on site, the Appellant has therefore breached the terms and conditions and incurred a Parking Charge Notice correctly, as per the signage. The BPA Code of Practise 8.3 Specific parking-terms signage tells drivers what the terms and conditions are, including the parking charges.
The signs containing 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 are conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing thedetailed terms and conditions must be at least 450mm x 450mm. which smart parking limited signs are.
Other evidence
Smart Parking Limited have enclosed a copy of the payment system confirming the Appellant failed to purchase a valid ticker against their full and correct vehicle registration to cover their full duration of stay on site. This further confirms the Parking Charge Notice was issued correctly.
I’ve had a look through and wanted to know if anyone could help with the best way to comment on this.
With regards to:
1) Insufficient signage: I don’t think there is a lot I can do, their photos were horribly low resolution, and I honestly did not see some of them there on site. The photos I took in the appeal were what I saw. The images that are not photos at the end of the rebuttal, I’m not sure that they can apply. I can't upload to show these.
2) Keeper liability and 3) 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:
I think we have better grounds here, they state in their rebuttal:"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 XXXXXX 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 thedriver on the day, the parking charge notice has been pursued correctly."
This is a complete lie. At no point in any correspondence with SMART has the driver been declared. In my follow up call, they’ve noted ( a screenshot from their computer system) that I was “(driver)” which is an absolute lie; I never stated who was driving the vehicle that day. On a separate issue, on that image of the phone call log, they've included my personal phone number in this evidence, I've not given them permission to share this data with a third party such as Popla.
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice:
Can’t see any evidence to that they can operate on this land. Nothing that I requested documentation for. It’s like this point has been completely ignored.
I think I have an idea of what to comment back to Popla, but I just wanted someone who knows this process to have a quick glance to make sure I’ve not missed something obvious.
Once this is all done I’ll post this case on the POPLA decisions thread.
Thanks for your time!0 -
I suggest you read recent popla rebuttals over the last 6 months on here and compose a draft and post it for critique below
bear in mind you are only allowed 2000 characters, so no waffling
see the examples in here for inspiration
https://forums.moneysavingexpert.com/discussion/5833054/advice-please-regarding-parking-charge-notice-issued-by-care-parking-at-stretford-tram-station&page=40 -
Thanks Redx, I'll take a look. It's a shame you can't upload to it like the original appeal0
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Too long for me to read, but I suspect that if this went to court they would crash and burn, it is a very trifling matter imo. A judge might agree with me.
https://en.wikipedia.org/wiki/De_minimis
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 House of Commons recently
http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.
and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.You never know how far you can go until you go too far.0 -
Thanks The Deep,
I will take this into consideration if the Popla appeal is unsuccessful.0
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