Smart parking popla appeal help re keeper liability

Leolion01

Please help or point me in the direction. ( I cannot find what I am looking for on the forum)

I received a pcn from smart parking through the post. I sent an appeal using the newbie template provided but now need to take it to popla purely on the grounds of no keeper liability but cannot find a template for this. Can I appeal just on this one point?

Any help greatly received!

Fruitcake

You are advised to throw as many appeal points at PoPLA as possible, not rely on a single point unless you are very brave.

Construct a draft appeal using all the template points available to you from post 3 of the NEWBIES.
Also look at the PoPLA Decisions thread where non-PoFA NTK appeals have been successful.

Get pics of the site and signage to support your Inadequate Signage point.

Post your draft here for checking before you submit it.

What happened when you complained to the landowner?

Have you complained to your MP yet about this unregulated scam?

Leolion01

Thank you! I’ll try and put a few points together and post back!

Le_Kirk

Leolion01 wrote: »

Thank you! I’ll try and put a few points together and post back!

No need to try, all the POPLA points are listed in the NEWBIE sticky post # 3. Also you could search for winning POPLA appeals using the Forum search facility.

The_Deep

[FONT=Times New Roman, serif]Read what Pete Wishart MP said recently in the House of commons about Smart Parking.[/FONT]

[FONT=Times New Roman, serif]"I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process.
…
The BPA does not have the ability to regulate these companies and has shown no sign whatsoever that it is trying to get on top of some of the sharper practices. The BPA gives a veneer of legitimacy to some of the more outlandish rogue operators by including them in their membership, allowing them to continue to operate. The Bill will oblige operators such as Smart Parking to amend their practices." #[/FONT]
[FONT=Times New Roman, serif][/FONT] [FONT=Times New Roman, serif] [FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]














[/FONT]

Coupon-mad

Search the forum for Smart POPLA keeper liability and copy one from 2019.

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list. On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.

Leolion01

Brilliant thank you!

I’m not very techy and am struggling a bit to navigate through all of this info and what people mean by #3 post and where to find it 👍

Coupon-mad

That's why my signature under every post tells all newbies where to find it...

Leolion01

Dear Sir/Madam,

Re: Parking Charge Reference number XXXXX, Vehicle registration XXXXX, Appeal number XXXXXXX

I am the registered keeper of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was notified as rejected on the XXXXX and they gave me POPLA code XXXXX to quote for appeal to yourselves.

I am appealing as the registered keeper, 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) The signage on site was inadequate
2) The handling of the Parking Charge Notice is riddled with non-compliances
a. Smart Parking has not been able to identify the driver
b. The Parking Charge Notice does not constitute Notice To Keeper
c. The photographs provided contain discrepancies and cannot be used as evidence
d. No acknowledgment of the initial appeal given within the required 14 days
3) The ANPR system is neither reliable nor accurate
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5) Unreasonable terms

I appreciate you taking the below into account during your objective considered assessment.

1) The signage on site was inadequate and not lit at night,

-The signs in this car park are not prominent, clear or legible at night from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

- Signs are displayed at height, with a substantial amount of text written in inadequately small font which makes it difficult or impossible to read and understand from a vehicle outside of daylight hours.

-Further inspection revealed that only a small number of terms and conditions signage are displayed. This signage is located at an excessive height above where customers would normally park.

-The terms and conditions displayed do not state the parking charges let alone the sum payable for unauthorised parking. The BPS COP states:
“18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place 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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.
18.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations.“
The signage before entering the car park states: “purchase a parking ticket for the duration of your stay” which was complied with. The sign on entry has no reference when the parking period begins. The POPLA annual report 2016 states:
“In an ANPR controlled car park where no statement on the signs indicates that the parking period begins on entry to the car park, as opposed to when a vehicle parks, we may discount the amount of time between entry and parking when calculating the grace period at the end of the contract. This is because the average motorist would assume that a period of parking begins when they park the vehicle, and not when they enter the car park.”
In summary, this case by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' consistently and clearly displayed throughout the car park 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.
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) The handling of the Parking Charge Notice is riddled with non-compliances.

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, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). 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. More specifically:
a. Smart Parking has not been able to identify the driver
The BPA code of practice says: “20.10 In either case, you will need to try to identify who was driving the vehicle and make contact with them. You do this by first seeking the keeper details from the DVLA. Having received the keeper details from the DVLA you will need to issue a ‘Notice to Keeper’.” Smart Parking have not identified the identity of the driver who would be responsible for paying the parking charge if demonstrated to be legitimate and for a genuine breach of established contract. Both the registered keeper and the owner of the car (who filed the initial appeal with Smart Parking) were present as customers of Astle Retail Park shopping centre. However the actual driver of the car has never been identified and this remains the burden of the parking operator.
b. The Parking Charge Notice does not constitute Notice To Keeper
Having not been able to identify the driver, Smart Parking issued a Parking Charge Notice to the registered keeper of the vehicle. However, this PCN cannot be considered to constitute a “Notice to Keeper” as defined in Schedule 4 of POFA 2012 because of the multiple non-compliances to the BPA COP and to POFA 2012, as demonstrated below:

- The BPA COP clause 20.11 states that: “The Notice to Keeper serves three purposes: • it invites the keeper to pay the unpaid parking charge • if the keeper was not the driver it invites the keeper to tell you who the driver was, and • it starts the 28-day time period after which the keeper may become liable to pay the unpaid parking charge.”. However the PCN issued by Smart Parking fails to meet the first two requirements. At no point does it invite the keeper to pay the parking charge and at no point does it invite the keeper to reveal the identity of the driver. At best these points are implied in the following passage of the PCN: “If you were not the driver of the vehicle and you wish to provide the drivers details, lodge a dispute, appeal or query this must be made online or in writing.”

- The BPA COP clause 20.14 states: “When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.”. However, although the PCN does include a “Data Protection” section, the only reasonable cause provided in it is the existence of the PCN itself with no further details and making the unsubstantiated claim of “reasonable cause”: “This Parking Charge has been issued for the reasons explained overleaf, therefore giving reasonable cause…”.

- Schedule 4 paragraph 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. The following is entirely missing from the PCN issued by Smart Parking, therefore making the PCN non-compliant with the requirements for being considered to be a Notice to Keeper:

i) “the period of parking to which the notice relates”: the PCN only mentions recorded alleged entry and exit times, not the period of parking.
ii) “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;”: the PCN does not inform the keeper that the driver is required to pay parking charges. The PCN only states that “A parking charge notice of £100 is now due for payment”. It does not inform the keeper of its responsibilities or of that of the driver.
iii) “State that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—(i) to pay the unpaid parking charges; or (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;”: as mentioned above, none of these elements is stated in the PCN.

c. The photographs provided contain discrepancies and cannot be used as evidence
The BPA COP states in Section 20.5: “A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.” The two photographs included as “evidence” in the PCN issued by Smart Parking fail to this requirement on four counts:
- I would like to bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps. By close examination of the photographs, the details (time, date, licence plate) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

- The black overlay box inserted into the photographs contains text that cannot be considered to be clear and legible considering the type and size of font and the size of the pictures provided.

- The inserted black overlay box partially covers what may be the actual time stamp of the picture taken by the ANPR equipment.


4. The ANPR system is neither reliable nor accurate
I challenge whether Section 21 of the BPA were complied with, in particular the following requirements 21.2 and 21.3: “Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.” And “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.”
I therefore challenge Smart Parking Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I also challenge Smart Parking to prove that appropriate manual quality check processes are in place, maintained and robustly audited by independent parties.
Furthermore, the ANPR system alone does not provide evidence that the vehicle in question remained parked for a continuous period exceeding the allowed time. It can be reasonably conceived that the driver could have left and come back between the times the two provided photographs were taken, for example to pick up its passengers within the allowed grace period for the second stay. Precedents exist of this situation occurring with the assessor ruling that the operator had to disprove this possibility with tangible evidence. Considering the large number of vehicles using the car park, in particular on a Saturday, it is statistically certain that this situation will occur on occasions. I therefore ask Smart Parking to provide evidence that the vehicle was parked for a continuous period of time exceeding the allowed time, with reliable evidence to support the specified times and with due consideration of grace periods.

5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
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 and 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 and 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”



6) 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. The charge imposed by Smart Parking constitutes an unfair term as it is disproportionate with respect to the alleged infringement.



Yours faithfully

Coupon-mad

A good start, now we are talking, we like a draft to work with!

The #3 in your headings doesn't match #3 in your wording.

Remove these:

c. The photographs provided contain discrepancies and cannot be used as evidence
d. No acknowledgment of the initial appeal given within the required 14 days

Just replace all the blurb about the NTK from #2 of that draft (it's all waffle!) with the words from 9(2)f of the POFA (Google it, copy it) and tell the Assessor that the NTK failed to include it or even allude to para 9 of Schedule 4.

If the NTK also arrived later than day 15 from the parking event also spell out the dates, for the Assessor to see at a glance, that it was sent too late for keeper liability.


Remove these as well, and renumber, and show us draft #2:

The ANPR system is neither reliable nor accurate

Unreasonable terms

Leolion01

Thank you for taking the time to help me! Please see my second draft below:

Dear Sir/Madam,

Re: Parking Charge Reference number XXXXX, Vehicle registration XXXXX, Appeal number XXXXXXX

I am the registered keeper of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was notified as rejected on the XXXXX and they gave me POPLA code XXXXX to quote for appeal to yourselves.

I am appealing as the registered keeper, 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) The signage on site was inadequate
2) Parking Charge Notice Non-Compliance With Section 4 p9(2)f of POFA
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

I appreciate you taking the below into account during your objective considered assessment.

1) The signage on site was inadequate and not lit at night,
-The signs in this car park are not prominent, clear or legible at night from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
- Signs are displayed at height, with a substantial amount of text written in inadequately small font which makes it difficult or impossible to read and understand from a vehicle outside of daylight hours.
-Further inspection revealed that only a small number of terms and conditions signage are displayed. This signage is located at an excessive height above where customers would normally park.
-The terms and conditions displayed do not state the parking charges let alone the sum payable for unauthorised parking. The BPS COP states:
“18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place 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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.
“In an ANPR controlled car park where no statement on the signs indicates that the parking period begins on entry to the car park, as opposed to when a vehicle parks, we may discount the amount of time between entry and parking when calculating the grace period at the end of the contract. This is because the average motorist would assume that a period of parking begins when they park the vehicle, and not when they enter the car park.”
In summary, this case by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' consistently and clearly displayed throughout the car park 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.
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) Parking Charge Notice Non-Compliance With Section 4 p9(2)f of POFA
Smart Parking Ltd have failed to include or even allude paragraph 9(2)f Schedule 4 POFA as detailed below;
9(2)(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;
(g) Inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h) Identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
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 and 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 and 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”


Yours faithfully