ANPR and ticket time discrepancy and reasonable adjustment appeal to POPLA

jowlie

I have received a parking charge notice from smart parking in relation to an overstay in The Airport Pub car park in Manchester of 14 minutes.
I sent the following (condensed) initial appeal to Smart Parking:
1. It is not made clear/highlighted upon entering the car park, or indeed when buying a ticket, that the period of parking begins upon your entry into the car park and ends upon your exit. Upon arrival at the car park I did purchase a ticket (copy supplied) for two hours parking at a cost of £3.50. The time on my ticket was 12:18 not 12:11 as recorded by your camera. If you are recording our time of entry into the car park this is the time that should appear on the ticket, otherwise the ticket time is misleading to the customer.
2. I found your ticket machines to be extremely over complicated and this, combined with fact that the machines do not provide change, resulted in me wasting several minutes trying to collect together the right change and then make payment by card.
3. I visited the pub/restaurant with my elderly mother. My mother is 84 years and of ill health. We have not been to the Airport Pub for several years (certainly not since parking became payable). As I am sure you can appreciate, my mother has great difficulty walking and cannot walk long distances. She requires a wheelchair to walk more than a few meters and when she can walk she still requires a walking stick. Getting into and out of a car is also very difficult and time consuming for her. I understand (following a conversation with Beth at The Airport Pub) that a ten minute grace period is offered to customers in relation to their parking. This I assume is in consideration of the time an able bodied person would take to get into and out of their car and into and out of the restaurant. My mother is certainly not an able bodied person and I would kindly request that this be considered (along with the other points in this email) as a mitigating circumstance resulting in our leaving the car park 4 minutes and 52 seconds after your deemed acceptable time frame.
4. Your website I note does explain the reason why car park management is required and in particular I note that it is "used by retailers to ensure that there is a regular turnover and availability of parking spaces for their genuine customers". I completely understand this and I attach a copy of my receipt for payment of our groups meal dated 31 October 2019 and timed at 14:14hrs, four minutes before my parking ticket was due to expire. This is proof that we were indeed the "genuine customers" to which the retailer wishes to offer parking. We remained within the car park and restaurant throughout our visit and spent £40 in the restaurant and £3.50 in the car park in the course of dong so.
I also mentioned a severe delay getting our food in some detail but haven’t copied this here.

My appeal has been rejected and I have been looking into a possible appeal to POPLA. I gave read the guidance and in particular have read the BPA code of practice. I was considering putting my appeal forward as Smart Parkings breach of the following conditions:

9.4 You must not use misleading tactics to lure drivers into incurring parking charges.

My basis for this breach is the fact that the time on my ticket misled me into believing that the two hour time paid for started at at 12.18 and not 12.11.

16.1 and 16.2. Claiming that reasonable adjustment to the grace period should be given in view of the fact my passenger had severe walking difficulties.

Having read other threads I am not sure POPLA will accept my first claim and I can’t find anything to suggest how they might respond to the second.

I am slowly losing heart and thinking of just paying the fine, especially as this will increase from £60 to £100 if I don’t pay it before 8 December.

Any thought or advice would be greatly appreciated.

Redx

this site seems to come up here regularly, whats worse is when you look at trip advisor and see that almost every review is a negatice due to parking charge notices from SMART, its a sc@mmers site, was bad enough when they had a previous car parking company operating there (VCS or EXCEL maybe)

one place to definitely avoid

whilst you can put the EA2010 into your popla appeal, popla wont use it, even though its a reasonable query

popla deal with anpr issues , poor signage , no landowner authority etc


grace periods are your main appeal points , one before obtaining a paid for ticket, plus 10 minutes or more to leave the premises , the timing starts when the ticket is bought at the PDT, not when entering this paid for car park


the ideal solution is a landowner cancellation (Robinson brewery ?)


its not a fine , its an invoice

Coupon-mad

My appeal has been rejected and I have been looking into a possible appeal to POPLA.

Do the same as this person:

https://forums.moneysavingexpert.com/discussion/comment/75894460#Comment_75894460

Read my reply & link there, and show us your draft (NOT written from scratch).

jowlie

Thank you Redx and Coupon-mad. I have prepared the following appeal to POPLA which I will also be forwarding to the Airport Pubs manager and their brewery. I would really appreciate if you would have a read through and offer me any suggestions or comments:

I believe that the reference to only my entry and exit times on Smart Parking's Parking Charge Notice (PCN) are misleading and do not constitute the actual parking period. Smart Parking's reliance on only this data I feel goes completely against the BPA code of practice and also the principles of contract law.

1. Smart Parking have stated on their Parking Charge Notice only the entry and exit times from the car park but the BPA code of Practice (13) states there are two grace periods. One at the end and a separate "observation period" at the start. The BPA article by Kevin Reynolds (BPA Director of Corporate Affairs) enforces this view where he states that there is a difference between "grace periods" and "observation" periods.

The parking charge notice states my vehicle entered the site at 12:11:17. However, my contract with Smart Parking did not start upon my entry to the car park as confirmed in POPLA's Annual Report 2018 in which you state "we should be clear that a motorist doesn't automatically enter a parking contract as soon as they enter a car park" and "There is a need for a consideration period before a parking period starts".

Until 31 October 2019 I had never parked in this particular paid car park. Upon entering the car park I had to find a parking space, carefully park, exit my vehicle, locate the signs and the ticket machine, read the signs and pricing guide, check my purse for the right change to pay for the parking and then return to my car to see if my passenger had an additional 20 pence, the amount I was short to pay for the parking. Having been unable to locate enough cash I then returned to the machine, read the options for payment by card and then went through what I found to be a very complex set of stages to pay by card. The time on my ticket/receipt (copy supplied) was 12:18 hours meaning that my "observation" period following my entry into the car park was a total of 7 minutes.

2. I understand that three of the essential elements of a contract are an offer, an acceptance and consideration. These three elements were not present at the time I entered the car park so it is impossible for the contract between myself and Smart Parking to have started at that point. Only when I had been given a reasonable period in which to locate and consider Smart Parking's offer to proving parking and I paid £3.50 for two hours parking, was the offer accepted and the contract started. I refer to the recent court of appeal case between National Car Parks Limited and The Commissioner for Her Majesty’s Revenue and Customs (2019) in which their Lordships held that NCP was willing to grant a period of parking in exchange for payment and the contract was brought into being when the customer inserted payment into the machine and elected to "press the green button" rather than cancelling the transaction. The pressing of the green button was held to represent acceptance by the customer of an offer by NCP to provide parking in return for the payment the customer had made.

3. I was genuinely of the opinion on the day in question that my two hour parking period for which I paid £3.50 started when I made payment at the ticket machine. The issuing of a ticket/receipt showing the time I paid for the parking (12:18hrs) I feel further reinforced this opinion. If my contract did indeed start when I entered the car park (as I believe has been incorrectly claimed by Smart Parking) then this should have been the time shown on my ticket/receipt. Otherwise how was I to know exactly what time I entered the car park? My concerns upon entering the car park were very much related to my safe entry into an unfamiliar area, existing off a main road. I was unaware of the ANPR cameras on the the 31st October 2019 when I entered the car park and do not feel it was safe for me to stop at an exit off a main road to look for signs regarding cameras or to record the time when my concentration should have been on my driving.

4. The parking charge notice from Smart Parking records that my car left the car park at 14:26:09. I attach herewith my receipt for payment in the Airport Pub (whom I understand are the Landowner's for whom Smart Parking are agents) showing payment was made for our meal in the pub/restaurant at 14.14 hours on the 31st October 2019. I distinctly recall rushing to get my two year old son and 84 year old mother out of the restaurant in an attempt to ensure that my car was removed from the car parking space by 14:18 hours when I understood my paid parking period expired. There were some delays in the service given in the restaurant which led to our need to rush which I am taking up directly with the restaurant owners. In addition, both the journey from the car at the start of my parking period and the exit from the restaurant and car park was affected by the fact my mother (who was a passenger in my car) has severe walking difficulties as a result of arthritis in her legs. I note that under the BPA Code of Practice Smart Parking are required to allow the driver a reasonable period to leave the private car park after the parking contract has ended and that this "grace period" should be a minimum of 10 minutes. Based on the points noted at 1 to 3 above my parking period ended at 14:18 hours and, despite the factors noted herein, I did leave the car park within the minimum recommended grace period of 10 minutes.

I believe that the 7 minutes "observation" period should have been considered by Smart Parking in accordance with the BPA Code of Practice, in addition to the allowance of a minimum of 10 minutes exit grace period meaning that Smart Parking have issued the PCN incorrectly. In addition Smart Parking's reliance solely on the entry and exit times in their PCN and in their response to my initial appeal I feel shows a failure of Smart Parking to adhere to the BPA code of Practice both at the time the PCN was issued and also during their consideration of my appeal.

Coupon-mad

You've written that from scratch, when you were advised not to.

It is bad enough that your first appeal blabbed about being the driver and killed your 100% nailed on 'slam dunk' winning position that you did have, as registered keeper.

But to then not use our POPLA appeal templates either, is risky and unnecessary.

Search the forum for POPLA split grace periods and write it like those results.

KeithP

Nothing about the signs?

It's the signs that allegedly offer the contract.

Read that part of post #3 of the NEWBIES thread that discusses signs and the inadequacy thereof.

jowlie

Dear Coupon-mad

I unfortunately did not know about this forum when I put in my first appeal. First ever PCN so I naively thought an explanation of what happened would do the trick. How wrong I was!!

I was not aware of your POPLA appeal templates but wish I had been as I spent an awfully long time preparing my draft.

I am struggling to find the templates though. Sorry, I am new to all this and have spent a good while searching. Could you be kind enough to point me in the right direction?

KeithP

My post earlier today suggested:

Read that part of post #3 of the NEWBIES thread that discusses signs and the inadequacy thereof.

You need to read the whole of post #3 on the NEWBIES thread for the 'near template' PoPLA appeal points.

To find the NEWBIES thread go back to the screen where you found the New Thread button last Thursday. It is the third thread on that thread list.