Void transaction Smart parking Parking for Snowdon

BloodyXmas

Hi,

I've received the PCN from Smart Parking this month. They sent me the letter because at Parking for Snowdon (or Llanberis car park or Snowdon mountain railway) reportedly wasn't paid the ticket. Problem is that I received the receipt from the ticket machine but it was a void transaction. The problem is that the receipt was confusing and with all information suggesting that everything was ok. As well the machine didn't display any message that something went wrong. Smart parking denied my first appeal because there wasn't a transaction between me and them. In the first appeal, I didn't mention who was the driver but I said that I paid for the ticket. (Yeah, I am a noob but I believed in the easy victory). So I am now in the POPLA stage. I searched here and I put together the letter for the POPLA. My problem is that I am a foreigner and I have a problem to over-describe and deliberately prolong the letter for the POPLA. I would really appreciate if somebody could have a look and help me a little bit.

I was using as a source:
thread 5538581
Smart Parking from Noobies Thread

My Letter:

---

Appeal re POPLA Code: xxx
Vehicle Registration: xxx
POPLA ref: xxx
I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £60 Parking Charge Notice (PCN) issued by Smart Parking.

(map of the carpark)
Figure 1: Map of the car park

I received a letter dated xxx acting as a notice to the registered keeper. My appeal to the operator – Smart Parking Ltd – was submitted and acknowledged on xxx but subsequently rejected by a letter dated xxx. As the keeper of the car, I have contacted the driver of the event, and was allowed to quote the words here:
“That day we were travelling from Convy and we had to visit a few more places before the dark. It was January so the dusk is very early. So we were in a hurry we wanted to visit a few other places. When we arrived at the car park I went immediately to pay the parking fee as I always do because I simply keep rules and I never break the rules. I was happy that I can pay by card. I still remember that on the machine was the sign which was saying that the debit card payments can take a few minutes. As I said I was very nervous about the time and when the machine finally issued the ticket the machine didn’t display any error.”
Based on the quotation, I believe the driver of the event could not recognise that the receipt for the parking is not valid and he couldn’t know the ticket machine doesn’t work properly and the payment wasn’t proceeded by the company operating the car park.

(picture of the receipt)
Figure 2: Original picture of the receipt

(picture of the receipt - showing that it is confusing)
Figure 3: Received receipt with comments

Also, there were missing instruction about how to recognise and how to act if the transaction didn’t pass.
The receipt clearly shows the goodwill of the driver to pay the fee and therefore he shouldn’t be punished because of the failure of the machine.
 
Therefore, I submit the reasons below to show that I am not liable for the parking charge:
1. Smart Parking’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3. ANPR Accuracy and Compliance
4. No Contract was entered into between the Smart Parking and the Driver or Registered keeper
5. No evidence of Landowner Authority
6. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

1) Smart Parking's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

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 must be met as stated in paragraphs 5, 6, 11, and 12. Smart Parking Ltd. have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set 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.
The applicable section here is (b) because the Parking Charge Notice/NTK that I have received was delivered by post. Furthermore, paragraph 9(5) states:

’’The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The Parking Charge Notice sent to myself as Registered Keeper was produced in their offices (never actually posted on that day, as is well known) showing a ‘date issued’ of xxx. This is more than three weeks after the alleged event, shown as xxx.

This means that Smart Parking have failed to act within the 14 day relevant period. Furthermore, it is clear that Smart Parking know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.

So, this is a charge that could only be potentially enforced against a known driver. Whilst I was an occupant of the car, the driver has never been admitted and there is no evidence as to the identity of that individual, which brings me to point #2:

2) The operator has not shown that the individual who it is pursuing is in fact 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

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 charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3) ANPR Accuracy and Compliance

Smart Parking Ltd’s NtK simply claims “that the vehicle “entered [xxx] at [xxx] and departed at [xxx]”. Smart Parking Ltd states the images and time stamps are collected by its ANPR camera system installed on site.

In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because: The British Parking Association DOES NOT AUDIT the ANPR systems in use by parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.

As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:

"You were concerned about a comment from the POPLA assessor who determined your case which said:

"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate."

You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us.

This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.

POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:

''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.''

Our auditors check operators compliance with this Code clause and not the cameras themselves.''

Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question. The BPA even warned about ANPR flaws:

(--link--)

“As with all new technology, there are issues associated with its use” and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking events. They state that: “Reputable operators tend not to uphold charge certificates issued in this manner.“

In this case, as the driver drove in and briefly stopped where there are no signs or bays at all (not in any retail area, but at a private residence not signed as being managed by Smart Parking) the ANPR system has indeed failed and the operator has breached the first data protection principle by processing flawed data from their system.

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:

(--link--)

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints.

Smart Parking Ltd is put to strict proof that the system has not failed visitors to the residential homes within this site.

POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin.

Please show the above email from Steve Clark, to your Lead Adjudicator.

Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its inherent failings is very readily available.

4) No Contract was entered into between the Smart Parking Ltd. and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Smart Parking clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of Smart Parking Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Smart Parking Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that Smart Parking provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

5) No evidence of Landowner Authority

As Smart Parking Ltd does not have a proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what Smart Parking is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

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

7.3 The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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

6) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Smart Parking Ltd’s signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

There is no information indicates that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices.
Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

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Thank you for comments.

Grey_Critic

You say you were aware that it was a void transaction so why did you not try again? You claim the receipt was confusing but did not keep it. Think you are wasting your time and ours. Just pay it.

BloodyXmas

I didn't know it. I took the receipt and I didn't know that transaction wasn't successful. I wanted to pay. I realized it from the letter from the second Smart parking's letter...

Egbert_Nobacon

Perhaps Grey Critic doesn’t appreciate “The Great Parking Scam”

Not many would ever advise paying.

If as you say they have failed POFA the keeper cannot be held liable.

KeithP

Grey_Critic wrote: »

You say you were aware that it was a void transaction so why did you not try again? You claim the receipt was confusing but did not keep it. Think you are wasting your time and ours. Just pay it.

Grey Critic, please don't waste too much of your time offering advice like that.

Coupon-mad

Grey_Critic wrote: »

You say you were aware that it was a void transaction so why did you not try again? You claim the receipt was confusing but did not keep it.

Think you are wasting your time and ours. Just pay it.

Wrong.

We see you are a newbie here. Why not have a look at other threads and learn about who the scammers are and why no-one on this forum ever pays Smart Parking 'fines'.

Coupon-mad

Change these bits, the first because the English needed tidying:

Based on the quotation, I believe the driver of the event could not recognise that the receipt for the parking is not valid and he couldn’t know the ticket machine doesn’t work properly and the payment wasn’t proceeded by the company operating the car park.

So change it to this:

POPLA please note the driver has never been identified. I am the keeper and an occupant of the car, who used the machine as I was one of the adults in the group. I believe the driver on the day of this event could not recognise that the receipt for the parking is not valid and he couldn’t know the ticket machine doesn’t work properly and the payment wasn’t processed by the company operating the car park.

And remove this because you are saying here, that 'the driver paid' which is the last thing you want to say! Delete this:

The receipt clearly shows the goodwill of the driver to pay the fee and therefore he shouldn’t be punished because of the failure of the machine.

BloodyXmas

Thank you very much. I changed it and I am going to send it over tomorrow. I have one more question: I am planning to insert in the letter the picture of the Receipt with the comments.

imgur.com/MbzZfSl

I am not sure if it is ok or it is too cheeky.

Thank you

Coupon-mad

Looks OK to me, but embed that image as a picture directly in your word document so it looks like a story book with illustrations (some of the links in the templates are designed to be a picture, not a link for the POPLA Assessor to click on - e.g. the Beavis case sign should be shown as an image).

So yes, insert the image into your POPLA letter.

You should then save that document as a PDF and unload it under 'other' and type in the box that:

Full appeal is attached as a PDF, but the main points are 'no landowner authority' and 'no keeper liability/non-POFA PCN' and the driver was not identified (the person who paid was only an occupant of the car with others) and that payment was made and a receipt was printed.

Umkomaas

Grey_Critic wrote: »

You say you were aware that it was a void transaction so why did you not try again? You claim the receipt was confusing but did not keep it. Think you are wasting your time and ours. Just pay it.

How much of your time do you actually spend giving your advice here?

Just pay it.

Simply awful, ill-informed, advice, especially as this is Smart Parking!

beamerguy

Grey_Critic wrote: »

You say you were aware that it was a void transaction so why did you not try again? You claim the receipt was confusing but did not keep it. Think you are wasting your time and ours. Just pay it.

Parking companies want people to "just pay it" ???