What to do next - DCP letter

Coupon-mad

Great - so now the keeper wins at POPLA.

Easy stuff.

See any Smart POPLA thread, as nothing has changed in years and there's no need for us to go over old ground if we can possibly avoid it.

Ezuer

There is not much examples of smart parking popla appeals I can find, is there a generic one that is recommended to use and adapt. 

Coupon-mad

Yes - search the forum for:

 Smart POPLA POFA

Ezuer

How do this sound? Found a few examples, anything else to add? I will also amend the part around night time as it was not dark at the time.

 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

Coupon-mad

That should win. Easy innit?!

Coupon-mad

Ezuer said:

Good afternoon, have received a reply from smart giving me a new POPLA code… and they have attached the letter to my initial appeal which they stated was sent. (I did not receive this).

The letter attached is not dated so they could have wrote it yesterday for all I know.

The letter also states “ as a gesture of goodwill we have reinstated the discount period.” 

Short notice but please do this survey now (and then a short & friendly video call next week) to tell the Government's consultancy outsourced firm your experience of 'appealing' and being told 'we sent you a rejection letter' (but you didn't get it...no proof they ever emailed it, and given we've seen 20 or so cases like yours we think they never sent the POPLA Code at all.

Please earn yourself £60 and help regulate the parking industry.  This is an official thing and MSE Towers has agreed I can share it...

https://forums.moneysavingexpert.com/discussion/6528490/official-dluhc-paid-research-have-you-ever-appealed-a-parking-charge-notice#latest

URGENT

Please earn £60 and help us push the regulation of the parking industry and new appeals service over the line.

There should be appeal (ADR) available at ALL stages to keep cases out of court.

And proof of actual date of posting or emailing rejection letters.

Coupon-mad

Same as all these:

Something of a pattern, eh?  

https://forums.moneysavingexpert.com/discussion/6524609/smart-parking-major-keying-errors-appeal-no-response-debt-recovery-plus

https://forums.moneysavingexpert.com/discussion/comment/80511826/#Comment_80511826

https://forums.moneysavingexpert.com/discussion/comment/80511533/#Comment_80511533

https://forums.moneysavingexpert.com/discussion/comment/80719312/#Comment_80719312

https://forums.moneysavingexpert.com/discussion/6513559/smart-parking-notice-and-debt-recovery-plus

https://forums.moneysavingexpert.com/discussion/6506021/smart-parking-and-debt-recovery-plus

https://forums.moneysavingexpert.com/discussion/6489447/smart-parking-ltd/p1

https://forums.moneysavingexpert.com/discussion/6489424/smart-parking-didnt-responded-for-appeal

https://forums.moneysavingexpert.com/discussion/6525173/smart-parking-penalty-error-and-now-debt-collector-letter

I suspect this might be DR Plus causing it.  Smart have blamed DR Plus before. I suspect they do the back office appeals for Smart and just deliberately or negligently, they (or Smart) drop the ball in a lot of cases and overlook appeals.

Smart Parking had a similar 'problem' once before, and had to admit it to the BPA.