Smart Parking successful POPLA Appeal January 2024

RAP5860

Just wanted to say thank you for all the hints on this forum, which helped me with a successful POPLA Appeal in January 2024. Smart Parking Ltd withdrew having been contacted by POPLA for their comments on my appeal (copy below) so job done!



POPLA APPEAL LETTER:

Parking on Private Land Appeals (POPLA)

xx January 2024

Dear Sirs,

POPLA Verification Code: 85136xxxxx

Smart Parking Ltd: Turner Contemporary Car Park, Margate

Parking Charge Notice Number: TC8314xxxx

Vehicle registration number: xxxxxxx

 

As the vehicle keeper, I was issued with a Parking Charge Notice by Smart Parking Ltd dated 22/11/2023 in respect of an alleged parking contravention on 4/11/2023.

 I have appealed this matter to the issuer, Smart Parking Ltd, as I believe it was unfairly / unlawfully / illegally issued, but they have rejected the appeal. I declined the company’s invitation to name the driver, which is not required of me as the keeper of the vehicle. I will not be paying the demand for payment for the following reasons and now appeal this matter to POPLA as follows:

 

1.    The alleged contravention did not occur

There is no evidence that a parking contravention occurred. The photographs included within the PCN do not clearly show the time of entry/departure. The operator has provided no evidence to show the arrival/departure time of the vehicle, nor has any evidence been provided of the duration of the actual parking event.

 2.    Grace Periods not exceeded

BPA Code of Practice Version 8: January 2020 states:

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.

 Receipts (copies enclosed) show that the fee for 180 minutes parking was paid for on 4/11/2023.

If we assume that the photographic evidence provided by Smart Parking Ltd is correct (which I dispute as Point 1 above), and the vehicle was on site for 190 minutes as alleged, under the BPA Code of Conduct Clause 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.”

Therefore, the PCN does not adhere to the BPA Code of Practice as a 10 minute grace period has not been applied.

 

3.    The notice to keeper is incorrect
The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. The Parking Charge Notice/Notice to Keeper arrived late (see enclosed copy).

·  The alleged parking contravention date was 4/11/2023

· The PCN was dated 22/11/2023. Under POFA Schedule 4 Clause 9(6), the PCN is assumed to be delivered on the second working day after the day it was posted, so it is assumed to be delivered on 25/11/2023.

· The PCN was therefore delivered to the Keeper some 20 days following the alleged parking contravention date.

· Therefore, the PCN does not adhere to the BPA Code of Practice – see Appendix C, Schedule 4 Clause 9(5) & 9(6) which requires delivery within 14 days.

 

 4.    Written authorisation of the landowner

The operator has not provided any evidence to demonstrate that they are the owners of the land upon which the alleged parking contravention occurred, or that they have the written permission of the landowner, in accordance with BPA Code of Practice Clause 7.1.

 

5.    The charge is disproportionate and not a genuine pre-estimate of loss
The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner. In this case, the £100 charge being asked for far exceeds the cost to the landowner for an alleged overstay of 10 minutes.

I therefore feel the amount requested is excessive.

For these reasons, I propose that this appeal should be upheld and that Smart Parking Ltd should be required to withdraw PCN Number TC831xxxxx

 I look forward to your opinion.

 Yours faithfully,

 

Enc:

1.     Smart Parking Receipts - dated 4/11/2023

2.     Smart Parking PCN – dated 22/11/2023