Popla appeal

Bpositive

Hi there,

I received PCN from smart parking on 27/05/21. It was our first time in Trowbridge area and I paid for an hour as we were going Next for collection and maybe Asda. There are two parking meters on the ground floor (the parking is on the 4th floor) and there are two lift going down or stairs. Anyway, so we did our shopping and packed buggy and everything back in the car when we realised our toddler had soiled nappy so had to change it in car before riding off and didn't think much about few minutes gone by. The camera shows entering at 14:21:51 and leaving at 15:33:33. The parking charge is £0.80 for an hour and no change given but I only had £1 coin which was used to pay at 14:28.

I appealed against the charge (I think I used 'We' as I can't check the appeal) and they send me letter after a week or so saying they're going to uphold the PCN but have given me option of paying at discounted amount or appeal further with POPLA.

I have read through lots of posts since last week and have made a draft which I will include here. I also wanted to add why the ticket machine issues time stamped parking ticket if the parking charge is going to be based on ANPR entry and exit time but I do not know how to go on about it. Can I just use it as my 3rd point just on it's own?

Please let me know if anything needs to be added, removed or changed. I can add the PCN and Rejected appeal letter if anyone wants to have a look.

Many thanks in advance

Bpositive

Popla verification code: XXXX

Vehicle registration: XXXXX

 

I, the registered keeper of this vehicle, received a letter dated 27/05/2021 from Smart Parking ‘as owner of the land, on the basis of a contractual right to occupy or to have possession of the land, or acting as agent of the landowner.’

I’m writing to you to express my concern over the unfair PCN sent to the keeper of the car.

 

The basis of my appeal is on the following grounds:
1) Consideration and Grace Period.
2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

 

 

1) Consideration and Grace Periods

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.

 13.2 The reference to a consideration period in 13.1 shall not apply where a parking event takes place.

 13.3 Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.

 13.4 Unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for specific users e.g Blue Badge holders, pick up/drop off or where parking is prohibited such as hatched areas in front of emergency exits, or on entry and exit ramps etc.

 13.5 You must tell us the specific consideration/grace period at a site if our compliance team or our agents ask what it is.

 13.6 Neither a consideration period, or a grace period are periods of free parking and there is no requirement for you to offer an additional allowance on top of a consideration or grace period.

Kelvin Reynolds, BPA Director of Corporate Affairs says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park.  Our 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,” he explains.

“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.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.  If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

It is assumed that the driver would have up to 10 minutes to find a parking space, park up, get out and walk to the signs, read the signs, queue for the payment machine and read the instructions and pay for a ticket and walk back and place it in the vehicle.

The PCN states that the vehicle entered the car park at 14:21:51 hours and left the car park at 15:33:33 hours. The ticket shows that £1.00 was paid for the parking at 14:28 meaning that the driver would have to leave the parking bay by 15:28. The driver was no more than 5 minutes late in driving out of the parking bay. As shows in the PCN, the driver exited the car park site at 15:33 hours.

This therefore means that the driver had remained on the car park site a total of 12 minutes; 6 minutes was taken to park, locate a sign containing terms and conditions Fig. 1, 2 and 3 shows places of T&Cs location (which was placed in 3 areas: First one, at the left hand side turning point as you are entering the car park which is impossible to read as there are other cars coming behind, second at the shopping centre’s entrance which leads to the lift and stairs down to the ground floor and third one on the ground floor next to the paying machine), read full terms and conditions, locate the pay machine which was on the ground floor, take toddler out along with buggy and their necessities, wait for the lift to the ground floor where the paying machine was, wait for queue in the paying machine and pay for the parking, and the remaining 6 minutes beyond the 1 hour period due to frustration of contract where toddler had soiled nappy and therefore needed changing in the car which still was within the grace period.

 

Due to COVID-19, precautions need to be taken when moving around and as you can see, Fig 3 shows how closely the paying machines are located which makes it more traffic when paying for parking hence more time consumed.

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

 As this operator does not have proprietary interest in the land then I require that they produce an un-redacted 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 this operator 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 Code of Practice) 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 Code of Practice 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.

 

Taking all this into consideration, and with the evidence provided by Smart Parking to me which directly contradicts the guidelines laid out by the BPA, I have grounds to appeal this unfair PCN delivered to me by Smart Parking.

 

Yours faithfully,

 

Coupon-mad

No you will lose if you try that point on its own. 

Just use what is in post #3 of the NEWBIES thread including the point that the NTK is not a POFA one, as Smart Parking have never used that wording. 

BUT FIRST COMPLAIN TO THE RETAIL PARK OWNERS OR AGENTS (Google the place) TO CANCEL IT.  NEVER TRY POPLA BEFORE LANDOWNER COMPLAINT! 

Bpositive

Can I contact the 'completely retail' agent as they seem to be advertising on behalf of the agent?
I can't find any information on the Gateway shopping centre Trowbridge otherwise

KeithP

Bpositive said:

Can I contact the 'completely retail' agent as they seem to be advertising on behalf of the agent?
I can't find any information on the Gateway shopping centre Trowbridge otherwise

Yes, that's exactly what you do.


There are five reviews of the Gateway Shopping Centre in Trowbridge on TripAdvisor and perhaps unsurprisingly every single one of them is complaining about the parking charges.

D_P_Dance

Read what Pete Wishart MP said recently in the House of commons about Smart Parking.and complain to your own MP.

"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.

Bpositive

Coupon-mad said:

No you will lose if you try that point on its own. 

Just use what is in post #3 of the NEWBIES thread including the point that the NTK is not a POFA one, as Smart Parking have never used that wording. 

BUT FIRST COMPLAIN TO THE RETAIL PARK OWNERS OR AGENTS (Google the place) TO CANCEL IT.  NEVER TRY POPLA BEFORE LANDOWNER COMPLAINT! 

Just called them and found out it has been sold to Mike Ashley, Sports direct! 
Now where do I go? Anyone knows how I can find his agency? I don't suppose I can go messaging sports direct people about it? 

Redx

Yes , complain to them , try CEO email D*t com

Coupon-mad

IMHO - and I am happy to be proved wrong with this opinion - by all accounts, an average person in the street might conclude that there is virtually no chance of Sports Direct or that man stepping in to help:

https://thesporting.blog/blog/where-did-it-go-wrong-for-mike-ashley-as-newcastle-united-owner

https://www.bbc.co.uk/news/uk-england-derbyshire-36855374#:~:text=In response, Sports Direct said,paid below the minimum wage.

Bpositive

I just had to change the template examples as per my PCN. Please let me know if this one is ready to go or do I need to add the BPA CoP here as well?

Dear Mr Ashley,

OFFICIAL COMPLAINT ABOUT SMART PARKING, AS AGENTS FOR THE GATEWAY SHOPPING CENTRE, TROWBRIDGE

I am forced to make an official complaint to you because the actions of your agent, Smart Parking, are upsetting, intimidatory and will drive away genuine retail customers in the long run. You can no doubt guess that we have received a letter purporting to mimic a 'parking ticket' from Smart Parking- and yet we knew nothing about any issues at the time when we shopped in The Gateway Shopping Centre, Trowbridge.

I moved to Wiltshire end of 2020 due to my husband's nature of work and have not been able to visit anywhere due to COVID-19. After the non-essential shops were allowed to open, I ordered some clothes for my growing toddler in Next for collection intending to shop more in-store. This was my first time in Trowbridge and I was excited to shop in-stores. Me and my toddler arrived at The Gateway Shopping Centre, parked our car, located the Terms and Conditions of Parking, took my time to read the T&Cs, then proceeded to take my toddler and buggy out to put him on there as I could not leave him by himself to go pay for parking. We got on to the ground floor via lift and queued to pay for the parking before making a purchase. The parking machines, because of how close they are positioned, only one family could buy ticket at a time due to social distancing. 

Fortunately, even though Smart Parking sent their letter out unexpectedly, after the event and past the 14 days' notice period, I had kept hold of the receipt. I sent an image to Smart Parking which they rejected. We are now expected to have to explain our actions to a third-party private company who we had no dealings with, no contract with - which is totally unacceptable.

I have researched the matter and intend to escalate my challenge against Smart Parking to the independent stage (Parking on Private Land Appeals). However, I feel you need to know that you and your agents are alienating genuine customers (new and/or returning) due to Smart Parking failing in providing grace period which is clearly stated in the T&Cs.

I would also suggest researching the complaints over the past months and years on the Facebook as well as Tripadvisor page, which is currently littered with customer complaints about Smart Parking.

I would welcome your own view on this harassment and hope you see fit to ensure that Smart Parking cancel the 'Parking ticket'. My research about this matter has revealed that landowners have cancelled some of these tickets for genuine customers recently which has helped to restore my faith a little, albeit tempered with frustration that The Gateway Shopping Centre, Trowbridge are allowing such an aggressive agent to have free reign to intimidate customers for their own profit, at your (and your customers') own expense.

Yours Faithfully,
Name
PCN number

Coupon-mad

Me and my toddler arrived at The Gateway Shopping Centre, parked our car,

Clearly your toddler wasn't the driver, so why are you putting in writing who was, to a landowner who might well just ping the complaint straight to Smart Parking and ruin your chances of winning at POPLA?

Or have you already ruined your 100% win as registered keeper in your earlier appeal by ticking or choosing 'driver' on the Smart Parking appeals page dropdown menu?