POPLA Appeal evidence HELP!!!

lollyhugz

Hi

I received a PCN from Smart Parking. I did not know it was ANPR operated. I couldn't park so left but I was there for 20 mins and unfortunately it turns out the grace period is only 10 mins.

I appealed before finding this forum which obviously was rejected by smart parking. Unfortunately I said 'I' in the appeal.

So I appealed to POPLA using some info I found here and they have sent me a lengthy reply from Smart demanding I provide a response by Wednesday.

Is there any point responding?? Should I :

a) pay the fine to make it go away
b) ignore
c) submit a reply knowing it will probably im guessing be upheld and then ignore in the hope Smart do not pursue post debt collectors?

Thank you for any tips I am very worried.

lollyhugz

Dear POPLA adjudicator,
I am writing to appeal against a parking charge levied by Smart Parking on 08/11/2018. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows:
1) No genuine pre-estimate of loss
The charge of £45 is punishing and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Smart Parking must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Smart Parking have no cause of action to pursue this charge. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
Smart Parking cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Smart Parking are likely to be paid by their client - so any such payment income must be balanced within the breakdown Smart Parking supply and must be shown in the contract, which leads me to my next appeal point.
2) Legal capacity to issue parking charges
Smart Parking have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Smart Parking do not have the legal capacity to enforce such a charge.
I require the landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Smart Parking are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Smart Parking to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
3) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'
I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the driver parked in their properties designated parking space as indicated on the rental agreement. The charge imposed by Smart Parking constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

I therefore respectfully request that POPLA uphold my appeal and cancel this PCN.

Parkingfines

Where did you get the first paragraph from, that wont win any more

It does not matter if you lose anyway, debt collectors are powerless and you can safely ignore them

lollyhugz

Someone at work told me to try it...they of course replied saying it is no longer valid.

Smart Parking have issued pages of evidence so I think my only route is to point out where their signage falls down against BPA...

lollyhugz

The car park in question is an Automatic Number Plate Recognition (ANPR) 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 the grounds for their appeal are as follows: 1) No genuine pre-estimate of loss 2) Legal capacity to issue parking charges 3) Unfair terms 4) Non BPA-compliant signage

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 WJ17JWF, 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.

We can confirm the site car park in question is an Automatic Number Plate Recognition (ANPR) system 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 total time the vehicle was on site is then recorded and matched up with a payment using the pay-by-plate machine. Furthermore, regardless of whether the vehicle was left unattended or not: by parking, waiting or otherwise remaining in the car park, you agree to comply with the terms and conditions and as the vehicle remained on site for 21 minutes with no payment logged against the Appellants full and correct vehicle registration, we can confirm that the PCN was issued correctly.

We would like to clarify that there was sufficient signage on site on the date of contravention and that the BPA Code of Practice January 2018, 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. As the terms and conditions that were clearly advertise, were not adhered to and the vehicle remained on site for 21 minutes, the parking charge notice has been issued correctly.

Smart Parking Limited 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 drivers 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, “If you do not accept both sets of terms, we are unable to offer you our parking facilities, and require you to remove your vehicle from the car park immediately or, where the Automated Plate Recognition cameras (ANPR) are in use, 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, “Operating Hours: 24 hours a day, Monday –Sunday”, “Motorists must enter their full, correct vehicle registration when using the payment machine.”, “Failure to comply with the terms and conditions may result in a parking charge of £90.00”. Therefore, as the driver failed to purchase time against the full duration of stay and remained on site for 21 minutes, the driver incurred the parking charge correctly.

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 (January 2018) 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 “Operating Hours: 24 hours a day, Monday –Sunday” and “failure to comply with the advertised terms and conditions may result in parking charge notice of £90”. Therefore, as the terms and conditions were breached, and the driver remained on site for 21 minutes, without purchasing a valid ticket for their full and correct vehicle registration, the parking charge was issued correctly.

Overall as the Appellant failed to purchase time against their full, correct vehicle registration for the 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 “Operating Hours: 24 hours a day, Monday –Sunday”, “Motorists must enter their full, correct vehicle registration when using the payment machines’’ and “failure to comply with the advertised terms and conditions may result in parking charge notice of £90”. This further confirms the Parking Charge Notice was issued correctly and in accordance with the advertised terms and conditions.

The Appellant entered the site at 11:09:57am and exited the site at 11:31:29am. The Appellant’s total duration of stay was 21 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 there is no payment made against the Appellants VRM and therefore as per the signage, 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 appellant remained on site for 21 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 £90 discounted at £45. The terms and conditions are clearly advertised stating in which circumstances a parking charge notice may be issued. Had the Appellant acknowledged the terms and conditions they would have been aware that a valid ticket needed to be purchased against their full, correct vehicle registration for the full duration of stay.
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 Appellant due to insufficient paid time. As the Appellant failed to purchase time for their full, correct vehicle registration for their full duration of stay the Appellant therefore incurred a Parking Charge Notice correctly.

Registered keeper details and liability trail
As of the 8th October 2018, DVLA confirmed that Lex Autolease Ltd were the registered keepers of the vehicle. XXX appealed as the driver on the date of contravention.

Original representations and notice of rejection.

All representation was made by the Appellant XX to Smart Parking Limited and to POPLA. The Appellant’s appeal was unsuccessful and rejected by Smart Parking Limited on the 20th December 2018.

Images and Plans
There are 25 signs located around the site that inform motorists of the advertised terms and conditions. The terms and conditions clearly state ‘’Parking Tariff Applies’’, ‘’Motorists must enter their full, correct vehicle registration when using the payment system’’ and ‘’failure to comply with the advertised terms and conditions may result in parking charge notice of £90 discounted at £45 if paid within 14 days’’. As the Appellant failed to purchase time against their full, correct vehicle registration for their full duration of stay, the Appellant therefore breach the terms and conditions and incurred a Parking Charge Notice correctly, as per the signage. The BPA Code of Practise 28.3 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 the detailed terms and conditions must be at least 450mm x 450mm. which smart parking limited signs are.

:mad:

Redx

read any popla rebuttals over the last 18 months on here and formulate your own rebuttal, with 2000 characters (not words) , which rebuts any issues in their evidence pack, so contract , signage , BPA CoP failures etc


debt collectors are powerless

Coupon-mad

Did you admit to being the driver in any appeal?

Smart are dead easy to beat if you had simply used the forum templates.

MistyZ

Redx wrote: »

read any popla rebuttals over the last 18 months on here and formulate your own rebuttal, with 2000 characters (not words) , which rebuts any issues in their evidence pack, so contract , signage , BPA CoP failures etc

Please correct me if I'm wrong, but I thought there was no mileage in rebutting the parking company's 'evidence' unless it is about a point raised in the original appeal?

One thing that was very clearly raised in the original appeal is landowner contract. And Smart Parking have not shown one, is that right OP?

startingout2016

I’m in the same position with an ANPR ticket at POPLA stage.

I think I’ve messed up my appeal but I honestly believe that the ticket is unfair as I didn’t see any signage and have never not paid for parking.
I’ve seen on google reviews that the car park in question has countless others who have also been in the same situation so if it went to court I think I should be able to illustrate that it can’t possibly be clear as I’m not the only one that’s had a fine.

Such an awful business these parking scumbags are in

Umkomaas

MistyZ wrote: »

Please correct me if I'm wrong, but I thought there was no mileage in rebutting the parking company's 'evidence' unless it is about a point raised in the original appeal?

One thing that was very clearly raised in the original appeal is landowner contract. And Smart Parking have not shown one, is that right OP?

You are able to rebut anything the PPC has put in their evidence pack. What you can't do is add any new evidence of your own (as in,' 'Oh, by the way, I forgot about grace periods in my original appeal and want to add that appeal point in now').

Fruitcake

startingout2016 wrote: »

I’m in the same position with an ANPR ticket at POPLA stage.

I think I’ve messed up my appeal but I honestly believe that the ticket is unfair as I didn’t see any signage and have never not paid for parking.
I’ve seen on google reviews that the car park in question has countless others who have also been in the same situation so if it went to court I think I should be able to illustrate that it can’t possibly be clear as I’m not the only one that’s had a fine.

Such an awful business these parking scumbags are in

Is this to do with your CEL case? I can't see what help you are bringing to this thread which is about Not so Smart Parking at PoPLA rebuttal at a different car park to yours.
Any questions or help you need should be on your own thread.