Total Fitness, Smart Parking, Wrong Address on VC5

D_P_Dance

In matters such as this I would avoid telephoning, if it gets to court you will need a paper trail everything in writing.  

henrik777

Updating your v5, whilst a legal requirement, means heehaw to them. If they ever get around to deciding court is for them then they'll use the address DVLA gave them.

Given the mess plastered all over here from people with CCJ's they didn't know about, i'd update them with a current address. (keep a record of this notification too).

daffodil83

Hello all, I have now got to do a POPLA appeal for this, so just looking for a bit of insight on my argument below.
Basically I complained to Savills (who manage the property) and they were half-arsed about it, so after they spoke to SP, SP sent me the PCN again as though it were the first one, saying 'sorry you didn't receive the first notice'...  *facepalm* However they have provided ANPR pics showing my car going in and out which now concerns me!

I'm making the following points for my popla appeal:
1 - initial pcn was not issued correctly - POFA timeframe
2 - no keeper liability established -  driver indistinguishable on ANPR images, 2 named drivers on my policy who might have used the car
3 - inadequate signage for Total Fitness members - this is the bit I'm not sure about
- given the national restrictions in October the named drivers/keeper would only have used the car park to visit the total fitness gym - evidence of membership for reg keeper and free guest passes which have been used (no names attached)
- we have no record of who used the gym on this date, and the TF app does not show history of using gym
- therefore, the car was parked on 27/10 and the driver used TF, entitling them to 2 hours free parking 
- there is absolutely no signage which details the TF free parking agreement (pictures included)
- TF members must park, go into the gym and use a parking meter to enter their reg, which issues them a free ticket
4 - Grace period - the vehicle was parked for 127 minutes, which leaves a 7 minute overstay after taking account of the TF parking agreement. This is a reasonable time to walk from the car park to the gym in order to use the gym's parking meter, and includes the time to walk back from the gym to the car after the gym session i.e. 3.5 minutes each way

KeithP

You need to be reading the third post of the NEWBIES thread to discover how to create a winning PoPLA appeal.

Umkomaas

Smart Parking don't seek keeper liability under PoFA (unless things have changed dramatically in the revised NtK you've just received).  So you need to concentrate your main points of attack on this. 

Give POPLA the PoFA paragraph references which SP fail to meet requirements (Schedule 4 para 9(2)(f) is a good starting point, but there's plenty of other points to go at. 

In the NEWBIES FAQ sticky, third post, that @KeithP refers to, there is a ready made appeal point covering the driver being liable, but SP are unable to identify who the driver was - don't reference indistinguishability via ANPR cameras - ANPR has never been intended for facial recognition. 

daffodil83

My Appeal so far - thanks for the comments, will edit with the specific points in POFA which SP have failed to meet, and will reword the part about ANPR images. Any comments on providing the name of the secondary driver? I'm obviously hoping it furthers my point about keeper liability, but don't know if I'm giving away too much by talking about using the gym...

To whom it may concern,

I am the registered keeper of the vehicle with the registration number XXXX and I have received parking charge notice (PCN) XXXX from Smart Parking. I would like to appeal the charge on the following grounds:

1. PCN issued incorrectly

2. Insufficient evidence of keeper liability

3. Inadequate signage

4. Grace period not acknowledged

5. Insufficient evidence of Smart Parking’s authority

1. PCN issued incorrectly

If they have not provided a windscreen ticket on the date of the infringement, Smart Parking are required by Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) to provide any PCN to the registered keeper within 14 days of this date. The keeper is expected to have received the notice within this timeframe.

In this case the date of issue for the initial PCN is 15 days after the date of the alleged infringement, as stated on their website, pictured below. This means the PCN could not have been received within the required timeframe.

Further to this, the PCN did not arrive at the address provided by the DVLA. The first letter received at the address was a letter from Debt Recovery Plus on 15/12/2020, pictured below. Following my direct appeal to Smart Parking, they have now reissued the PCN to myself as a first notice to keeper on 05/02/2021 (see below), which is clearly beyond the required timeframe.

 2. Insufficient evidence of keeper liability:

The driver of the vehicle on the date of the alleged infringement is unidentifiable from the ANPR images. Smart Parking did not attempt to ascertain the driver’s identity before issuing a PCN notice to the registered keeper of the vehicle.

I have attached a copy of the insurance policy for the vehicle, which clearly shows 2 named drivers, myself, the registered keeper, and XXXX a secondary driver. Either driver might have legitimately used the vehicle on the date in question.

Either driver would have only used the XXX car park to visit the Total Fitness gym, though we do not have a record of who visited the gym on the 27/10/2020. The pictures below show the Total Fitness membership for myself, and a screenshot showing that one free guest pass has been used. My membership began in September 2020 and the gym closed to the public for the national lockdown on 3rd November 2020, and so the guest pass was used within this timeframe, which includes the date that the vehicle was parked at XXX car park. Given the national restrictions at the time, we were not travelling to Altrincham for retail or any other reason than attending the gym.

3. Inadequate signage

The vehicle was parked in XXX car park on 27/10/2020 so that either myself or XXX could attend the gym, and we have no record of who was the driver on that day. The agreement with Total Fitness is that gym users may park in the car park for 2 hours (120 minutes) for free, however there are no signs within the car park to this effect. The signage in the car park details the parking charges for the public without any information on the free parking allowed to Total Fitness members. Total Fitness members must leave the car park and ask the staff in the gym for information on parking charges, and the parking meter for gym-goers is not visible from the entrance to the gym, nor are there any signs about the parking agreement. The entrance to Total Fitness is pictured below.

 

Moreover, the existing signage is very poor. PoFA 2012 requires clear, legible signage to make a motorist aware of the parking charge, the method for buying a ticket, and any penalties for failing to do so. Specifically, it requires that the driver is given 'adequate notice' of the charge.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

 

 

 

From the pictures attached it can clearly be seen that there are no signs with sufficient instructions for Total Fitness members. Therefore the criteria required by PoFA for private parking companies to recover unpaid parking charges have not been fulfilled in this case.

4. Grace period not acknowledged

BPA’s Code of Practice (13.4) states that:

“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

As calculated by the ANPR images, the vehicle was parked for a period of 127 minutes in total, and as argued, either driver of the vehicle would have been entitled to 120 minutes of free parking as a Total Fitness gym goer. This leaves just 7 minutes unaccounted for, which clearly comes within the allowed grace period of 10 minutes.

It is also worth noting that Total Fitness customers must use a parking meter which is located inside the gym rather than in the car park itself. Total Fitness members must therefore leave their car unattended and walk to the gym, before entering their registration number on the parking meter and receiving their free ticket. This could easily take 5 minutes, plus any extra time for queueing in busy periods.

 

5. Insufficient evidence of Smart Parking’s authority

As part of my direct appeal to Smart Parking I requested full evidence of their right to recover unpaid parking charges from drivers using the XXXX car park, and I have not received this evidence. I believe that Smart Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, they must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Smart Parking to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between themselves and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Smart Parking.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Section 7.3 states: “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.''

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay Smart Parking. They have no standing to enforce 'parking charges' or penalties of any description in any court.

I put Smart Parking to strict proof of compliance with all of the above requirements.

daffodil83

Updated version for any feedback:

1. PCN issued incorrectly

If they have not provided a windscreen ticket on the date of the infringement, Smart Parking are required by Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) to provide any PCN to the registered keeper within 14 days of this date. The keeper is expected to have received the notice within this timeframe.

In this case the date of issue for the initial PCN is 15 days after the date of the alleged infringement, as stated on their website, pictured below. This means the PCN could not have been received within the required timeframe. 

Further to this, the PCN did not arrive at the address provided by the DVLA. The first letter received at the address was a letter from Debt Recovery Plus on 15/12/2020, pictured below. Following my direct appeal to Smart Parking, they have now reissued the PCN to myself as a first notice to keeper on 05/02/2021 (see below), which is clearly beyond the required timeframe.

Further to this the new notice to keeper fails to meet the following requirements of PoFA:

(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;

Smart Parking have not informed me that the driver of the vehicle on 27/10/2020 is liable for the relevant parking charges.

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

Smart Parking have not provided evidence of any notice to driver they may have issued.

(e)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;

Smart Parking have not stated that they do not know the identity of the driver, and have not invited me to identify a driver to pass on the PCN to.

(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

 

2. Insufficient evidence of keeper liability:

Smart Parking did not attempt to ascertain the driver’s identity before issuing a PCN notice to the registered keeper of the vehicle. I have attached a copy of the insurance policy for the vehicle, which clearly shows 2 named drivers, myself, the registered keeper, and XXXX, a secondary driver. Either driver might have legitimately used the vehicle on the date in question. Further to this, there can be no inference that either named driver was the driver of the vehicle on the date in question. I will expand on this below.

Either driver would have only used the XXcar park to visit the Total Fitness gym, though we do not have a record of anyone visiting the gym on 27/10/2020. The pictures below show the Total Fitness membership for myself, and a screenshot showing that one free guest pass has been used. My membership began in September 2020 and the gym closed to the public for the national lockdown on 3rd November 2020, and so the guest pass was used within this timeframe, which includes the date that the vehicle was parked at XXX car park. Given the national restrictions at the time, we were not travelling to Altrincham for retail or any other reason than attending the gym.

Lastly, we cannot rule out that another driver (insured on their own vehicle) may have used the guest pass and my vehicle, as I may have given permission for a friend or family member to visit the gym.

 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 whom 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. 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:
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.'

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.''

3. Inadequate signage

The vehicle was parked in XXXX car park on 27/10/2020 so it may be the case that either myself or XXXXattended the gym, though we have no record or memory of this and so cannot confirm either way. The agreement with Total Fitness is that gym users may park in the car park for 2 hours (120 minutes) for free, however there are no signs within the car park to this effect. The signage in the car park details the parking charges for the public without any information on the free parking allowed to Total Fitness members. Total Fitness members must leave the car park and ask the staff in the gym for information on parking charges, and the parking meter for gym-goers is not visible from the entrance to the gym, nor are there any signs about the parking agreement. The entrance to Total Fitness is pictured below.

Moreover, the existing signage is very poor. PoFA 2012 requires clear, legible signage to make a motorist aware of the parking charge, the method for buying a ticket, and any penalties for failing to do so. Specifically, it requires that drivers are given 'adequate notice' of the charge, defined as follows:

“adequate notice” means notice given by—

(a)the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or

(b)where no such requirements apply, the display of one or more notices which—

(i)specify the sum as the charge for unauthorised parking; and

(ii)are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

Moreover, Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says:

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

These requirements are demonstrably not upheld by Smart Parking at the Goose Green car park, as seen in the pictures below. The signage is small, sparsely distributed and not visible from the car park entrance. This means that any driver would spend much longer than reasonably expected to figure out the parking charges. Smart Parking also cannot pursue unpaid parking charges where they have not provided sufficient signage.

From the pictures attached it can clearly be seen that there are no signs with sufficient instructions for Total Fitness members or for members of the general public. Therefore, the criteria required by PoFA for private parking companies to recover unpaid parking charges have not been fulfilled in this case.

4. Grace period not acknowledged

BPA’s Code of Practice (13.4) states that:

“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

As calculated by the ANPR images, the vehicle was parked for a period of 127 minutes in total, and as argued, the driver of the vehicle may have been entitled to 120 minutes of free parking as a Total Fitness gym goer. This would leave just 7 minutes unaccounted for, which clearly comes within the allowed grace period of 10 minutes.

It is also worth noting that Total Fitness customers must use a parking meter which is located inside the gym rather than in the car park itself. Total Fitness members must therefore leave their car unattended and walk to the gym, before entering their registration number on the parking meter and receiving their free ticket. This could easily take 5 minutes, plus any extra time for queueing in busy periods.

 5. Insufficient evidence of Smart Parking’s authority

As part of my direct appeal to Smart Parking I requested full evidence of their right to recover unpaid parking charges from drivers using the XXcar park, and I have not received this evidence. I believe that Smart Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, they must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Smart Parking to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between themselves and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Smart Parking.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Section 7.3 states: “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.''

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay Smart Parking. They have no standing to enforce 'parking charges' or penalties of any description in any court.

I put Smart Parking to strict proof of compliance with all of the above requirements.

Coupon-mad

The vehicle wasn't 'parked' for 127 minutes.  ANPR merely shows that it was on site for 127 minutes.

Remove this because there is no prescribed evidence that's ever been set under para 10, it's redundant.

(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

I didn't see anything about paragraph 9 of the POFA being missing, especially the warning about keeper liability in 9(2)f.  It's the easy way to spot a non-POFA NTK.

Remove this from #2 (do not supply a copy of the insurance nor talk about it possibly being you.  There is no need to divulge any of this:

Smart Parking did not attempt to ascertain the driver’s identity before issuing a PCN notice to the registered keeper of the vehicle. I have attached a copy of the insurance policy for the vehicle, which clearly shows 2 named drivers, myself, the registered keeper, and XXXX, a secondary driver. Either driver might have legitimately used the vehicle on the date in question. Further to this, there can be no inference that either named driver was the driver of the vehicle on the date in question. I will expand on this below.
Either driver would have only used the XXcar park to visit the Total Fitness gym, though we do not have a record of anyone visiting the gym on 27/10/2020. 

Remove this from #3 for the same reason:

The vehicle was parked in XXXX car park on 27/10/2020 so it may be the case that either myself or XXXXattended the gym, though we have no record or memory of this and so cannot confirm either way. 

How are you proving this?  You need to show POPLA this is true:

The agreement with Total Fitness is that gym users may park in the car park for 2 hours (120 minutes) for free

daffodil83

I didn't see anything about paragraph 9 of the POFA being missing, especially the warning about keeper liability in 9(2)f.  It's the easy way to spot a non-POFA NTK.

so the NTK is supposed to state the POFA legislation? I have included 9,2,f now and stated each point which has not been complied with

Remove this from #2 (do not supply a copy of the insurance nor talk about it possibly being you.  There is no need to divulge any of this:

Smart Parking did not attempt to ascertain the driver’s identity before issuing a PCN notice to the registered keeper of the vehicle. I have attached a copy of the insurance policy for the vehicle, which clearly shows 2 named drivers, myself, the registered keeper, and XXXX, a secondary driver. Either driver might have legitimately used the vehicle on the date in question. Further to this, there can be no inference that either named driver was the driver of the vehicle on the date in question. I will expand on this below.
Either driver would have only used the XXcar park to visit the Total Fitness gym, though we do not have a record of anyone visiting the gym on 27/10/2020. 

Remove this from #3 for the same reason:

The vehicle was parked in XXXX car park on 27/10/2020 so it may be the case that either myself or XXXXattended the gym, though we have no record or memory of this and so cannot confirm either way. 

It's because the car park can be used for shops, restaurants etc as well as for the gym - I want to establish that the car would have been parked for gym attendance, not visiting shops. I have mentioned the national restrictions and health warnings as reasons why we wouldn't have visited other businesses in october. Otherwise there's no point discussing total fitness at all and the case seems weak

How are you proving this?  You need to show POPLA this is true:

The agreement with Total Fitness is that gym users may park in the car park for 2 hours (120 minutes) for free

There is no evidence of this anywhere total fitness have been absolutely useless and refused any involvement, but i'm still pursuing them over email and social media.

updated appeal: 

To whom it may concern,

I am the registered keeper of the vehicle with the registration number XXXXand I have received parking charge notice (PCN) XXXXfrom Smart Parking. Smart Parking have issued the ticket for an alleged infringement on the 27/10/2020, claiming that the required parking charges were not paid. They have provided ANPR images showing the vehicle in the entrance and exit lanes of the car park, with a time difference of 127 minutes. No further evidence has been provided.

I would like to appeal the charge on the following grounds:

1. PCN issued incorrectly

2. Insufficient evidence of keeper liability

3. Inadequate signage

4. Grace period not acknowledged

5. Insufficient evidence of Smart Parking’s authority overXXXX car park

1. PCN issued incorrectly

1.1 First PCN issued late

If they have not provided a windscreen ticket on the date of the infringement, Smart Parking are required by Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) to provide any PCN to the registered keeper within 14 days of this date. The keeper is expected to have received the notice within this timeframe. There was no windscreen ticket on the vehicle on the date in question, meaning that any PCN must have been issued so that the registered keeper would have received it by the 10/11/2020 at the latest.

The date of issue for the initial PCN was 15 days after the date of the alleged infringement, on 11/11/2020, as stated on the Smart Parking website, pictured below. This means the PCN could not have been received within the required timeframe, i.e. by the 10th November 2020. 

1.2 First PCN did not arrive at the address

Further to this, the PCN did not arrive at the address provided by the DVLA. The first letter received at the address was a letter from Debt Recovery Plus on 15/12/2020, pictured below. I regularly monitor my incoming post to this address as I have recently moved out.

1.3 Replacement initial PCN

Following my direct appeal to Smart Parking, they have now reissued the PCN to myself as a first notice to keeper on 05/02/2021 (see below), which is also clearly beyond the required timeframe.

1.4 Further requirements not met

Further to this the new notice to keeper fails to meet the following requirements of PoFA:

(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;

Smart Parking have not informed me that the driver of the vehicle on 27/10/2020 is liable for the relevant parking charges.

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

Smart Parking have not provided evidence of any notice to driver they may have issued.

(e)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;

Smart Parking have not stated that they do not know the identity of the driver, and have not invited me to identify a driver to pass on the PCN to.

(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;

I have not received a warning to this effect, and moreover the right to recover charges from the keeper cannot be verified as Smart Parking have not complied with the applicable conditions of PoFA.

2. Insufficient evidence of keeper liability:

2.1 PCN issued to keeper without establishing the liable driver

Smart Parking did not attempt to ascertain the driver’s identity before issuing a PCN notice to the registered keeper of the vehicle. I have attached a copy of the insurance policy for the vehicle, which clearly shows 2 named drivers, myself, the registered keeper, and XXXXX, a secondary driver. Either driver might have legitimately used the vehicle on the date in question. Further to this, there can be no inference that either named driver was the driver of the vehicle on the date in question. I will expand on this below. 

2.2 Named drivers use of the car park

Either driver would have only used the car park to visit the Total Fitness gym, though we do not have a record of anyone visiting the gym on 27/10/2020. The pictures below show the Total Fitness membership for myself, and a screenshot showing that one free guest pass has been used. My membership began in September 2020 and the gym closed to the public for the national lockdown on 3rd November 2020, and so the guest pass was used within this timeframe, which includes the date that the vehicle was parked at XXX car park. Given the national restrictions and health warnings at the time, we were not travelling to Altrincham for retail or any other reason than attending the gym.

2.3 Importance of establishing the registered keeper’s liability

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 whom 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.
In this case, no other party apart from an evidenced driver can be told to pay. 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 establishing appropriate liability.
The burden of proof rests with Smart Parking 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 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 Smart Parking 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.''

3. Inadequate signage

3.1 Total Fitness parking agreement signage is nonexistent

The vehicle was parked in XXXX car park on 27/10/2020 so it may be the case that either myself or XXXXattended the gym, though we have no record to this effect. The agreement with Total Fitness is that gym users may park in the car park for 2 hours (120 minutes) for free, however there are no signs within the car park to this effect. The signage in the car park details the parking charges for the public without any information on the free parking allowed to Total Fitness members. Total Fitness members must leave the car park and ask the staff in the gym for information on parking charges, and the parking meter for gym-goers is not visible from the entrance to the gym, nor are there any signs about the parking agreement. The entrance to Total Fitness is pictured below.

3.2 Information on gym usage is not available

I have contacted Total Fitness numerous times in the past month to obtain information of whether myself or a guest has used the gym on the date in question, however, they have been unable to provide this information. If they so wish, POPLA can contact the gym on the details below, to ask for this information themselves.

3.3 Existing signage for Smart Parking’s parking agreements with the public is insufficient

Moreover, the existing signage is very poor. PoFA 2012 requires clear, legible signage to make a motorist aware of the parking charge, the method for buying a ticket, and any penalties for failing to do so. Specifically, it requires that drivers are given 'adequate notice' of the charge, defined as follows:

“adequate notice” means notice given by—

(a)the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or

(b)where no such requirements apply, the display of one or more notices which—

(i)specify the sum as the charge for unauthorised parking; and

(ii)are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

Moreover, Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says:

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

These requirements are demonstrably not upheld by Smart Parking at the Goose Green car park, as seen in the pictures below. The signage is small, sparsely distributed and not visible from the car park entrance. This means that any driver would spend much longer than reasonably expected to figure out the parking charges. Smart Parking also cannot pursue unpaid parking charges where they have not provided sufficient signage. 

From the pictures attached it can clearly be seen that there are no signs with sufficient instructions for Total Fitness members or for members of the general public. Therefore, the criteria required by PoFA for private parking companies to recover unpaid parking charges have not been fulfilled in this case.

4. Grace period not acknowledged

BPA’s Code of Practice (13.4) states that:

“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

As calculated by the ANPR images, the vehicle was parked for a period of 127 minutes in total, and as argued, the driver of the vehicle would have been entitled to 120 minutes of free parking as a Total Fitness gym goer. This would leave just 7 minutes unaccounted for, which clearly comes within the allowed grace period of 10 minutes.

It is also worth reiterating that Total Fitness customers must use a parking meter which is located inside the gym rather than in the car park itself. Total Fitness members must therefore leave their car unattended and walk to the gym, before entering their registration number on the parking meter and receiving their free ticket. This could easily take 5 minutes, plus any extra time for queueing in busy periods.

5. Insufficient evidence of Smart Parking’s authority

As part of my direct appeal to Smart Parking I requested full evidence of their right to recover unpaid parking charges from drivers using the XXXX car park, and I have not received this evidence. Therefore I believe that Smart Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. 

blah blah 

<not included as i think this section was fine before>

Summary

To sum up, I am appealing the PCN on the grounds that Smart Parking have incorrectly issued the ticket, specifically without establishing an evidenced driver of the vehicle who is liable for any penalty charges. There is no record of either named driver for the vehicle using the car park on the date in question, though it may be the case that a driver used the car park to attend the Total Fitness gym. This would entail that the vehicle was parked legitimately for 127 minutes, given the parking agreement with Total Fitness, and considering the reasonable grace period for obtaining a parking ticket.

I am asking POPLA to consider that Smart Parking are unable to sufficiently evidence a liable party, their own authority or compliant use of the procedures available to them to recover unpaid parking charges in this case. I would therefore ask for all parking charges to be cancelled to resolve this matter.

daffodil83

I have added the following:

2.2 No evidence that vehicle was parked

The ANPR images provided show the vehicle in the entrance lane and exit lane respectively, however this does not prove that the vehicle was actually parked on the site for the time between the provided photographs. The driver might have entered and exited the car park at the given times without stopping to park. This is allowed under the reasonable grace periods given in the BPA Code of Practise 13.4:

“13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.”