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  • FIRST POST
    • bill12345678
    • By bill12345678 10th Sep 18, 3:48 PM
    • 10Posts
    • 2Thanks
    bill12345678
    Smartparking
    • #1
    • 10th Sep 18, 3:48 PM
    Smartparking 10th Sep 18 at 3:48 PM
    Hello
    I am at the stage of submitting a Popla appeal against smartparking and was looking at the newbie thread template. The appeal is for a ticket that was purchased but appears to have incorrectly inputted the reg number? Do I still include all the details on the draft letter ie signage, anpr camera, grace periods etc as they would not be specifically relevant in this case?
    I might add that no liability has been given to smartparking about the details of the driver.
    Cheers
Page 1
    • Redx
    • By Redx 10th Sep 18, 3:52 PM
    • 19,213 Posts
    • 24,410 Thanks
    Redx
    • #2
    • 10th Sep 18, 3:52 PM
    • #2
    • 10th Sep 18, 3:52 PM
    use anything and EVERYTHING

    you only have to win on a single point, they have to win on EACH & EVERY POINT

    so make it easy for yourself and hard for the numpties at not so SMART
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Le_Kirk
    • By Le_Kirk 10th Sep 18, 6:36 PM
    • 3,207 Posts
    • 2,120 Thanks
    Le_Kirk
    • #3
    • 10th Sep 18, 6:36 PM
    • #3
    • 10th Sep 18, 6:36 PM
    appears to have incorrectly inputted the reg number?
    Originally posted by bill12345678
    ......... or incorrectly printed the reg number even though you input it properly!!
    • bill12345678
    • By bill12345678 11th Sep 18, 9:24 AM
    • 10 Posts
    • 2 Thanks
    bill12345678
    • #4
    • 11th Sep 18, 9:24 AM
    • #4
    • 11th Sep 18, 9:24 AM
    I've had a good read of the newbies thread #3 and searched the forum for anything to do with incorrect reg number entered but not found anything specific to put in the appeal. I was thinking of just using the blanket letter that is there for overstaying? There doesn't seem to be anything that covers idiocy in entering reg numbers.
    • Le_Kirk
    • By Le_Kirk 11th Sep 18, 9:46 AM
    • 3,207 Posts
    • 2,120 Thanks
    Le_Kirk
    • #5
    • 11th Sep 18, 9:46 AM
    • #5
    • 11th Sep 18, 9:46 AM
    Search for posts (not threads) by Coupon-mad, she has, over the last few days gone to town on faulty equipment that records and prints incorrect information.

    Just read a post by Coupon-mad about rectification notice - see here. Whilst not strictly concerning incorrect VRM printed (it is about double dipping) it is interesting reading and may lead you to some valuable ammunition against the PPC.
    Last edited by Le_Kirk; 11-09-2018 at 10:02 AM.
    • bill12345678
    • By bill12345678 11th Sep 18, 4:21 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    • #6
    • 11th Sep 18, 4:21 PM
    Draft
    • #6
    • 11th Sep 18, 4:21 PM
    I've gone through the threads and think that this may be a good start for the Popla appeal. Can anyone come up with anything else I need to put on? do you think I need to add a section on incorrect reg number input? Thank you.


    I am the registered keeper and I wish to appeal a recent parking charge from SmartParking on xxxx at xxxx . I submit the points below to show that I am not liable for the parking charge:

    1) No standing or authority to pursue charges nor form contracts with drivers.
    2) The signage was not readable so there was no valid contract formed.
    3) The ANPR system is unreliable and neither synchronized nor accurate-evidence does not discount two visits shown as one.
    4) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the‘Aziz test’.

    5) No legitimate interest - this charge is not like that in the Beavis carpark/contract.



    1) No standing or authority to pursue charges nor form contracts with drivers
    I believe that this Operator 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,
    SmartParking
    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.

    Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operation the land and to enforce charges in the courts in their own name.

    In addition, Section 7.3 states:

    “The written authorization 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 therefore put Smart Parking to strict proof to provide
    POPLA
    and myself with unredacted, contemporaneous copy of the contract between Smart Parking and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorized the necessary rights to Smart Parking.



    2) The signage was not compliant so there was no valid contract formed between SmartParking and the driver

    The alleged breach took place in the xxxxx car park on xxxxxxxxxxxxx. Having subsequently visited the site, the main sign at the immediate vehicle entrance to the car park is barely noticeable as drivers who, unable to stop at that point in the road due to the proximity of the traffic lights, rightly strive to accord with legal and safe driving practice. Indeed the text is so small as to render the sign unreadable and unremarkable. The sign is impossible to read whilst entering the car park and is insufficiently eye catching to give one cause to revisit after parking. I believe Smart Parking have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognized or noted by drivers.


    A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle cannot have seen any clear, unambiguous sign; there was no consideration/acceptance and no contract agreed between the parties. In the rejection of my appeal, SmartParking assert that that by merely entering the car park I agreed to the terms and conditions. This is an utter nonsense, requiring a driver, even one with full faculty and cognition, to have agreed to terms and conditions upon entry and before having become aware of signage or read and understood the terms and conditions.

    Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

    18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
    as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the carpark is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.


    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.

    If a driver can't read the sum of the parking charge before parking – because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires ‘adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

    The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

    ‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

    i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge for a 20 minute overstay in a car park) needs to be VERY explicit and prominent. Not hidden among small print on assign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was “drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on apart with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.


    The only signs are up on poles, above from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied bySmartParking to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Smart Parking signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Smart Parking to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without computer manipulation or cropping and showing where the signs are placed among myriad of other information bombarding a customer.

    3) The ANPR system is unreliable and neither synchronized nor accurate, and there is no evidence that this was just one visit

    The rules of the BPA require you to allow a grace period of at least 11 minutes either to allow a motorist to read the signs and make payment or decide whether parking is permitted, and at the end of a period of paid for time or maximum stay to allow for discrepancies in the time shown on different devices. Reasonable grace period should be granted and should be fair so no one is discriminated against i.e. those with small children or disabled people - see below clause 13 of the BPA COP:-

    Breach of the BPA Code of Practice regarding Grace Periods: The BPA Code of Practice requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for SmartParking to ignore their industry code, which states re grace periods:

    Prior to parking: -
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.


    Upon returning to the vehicle: -
    13.4 You should allow the driver a reasonable period to leave the private carpark 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.


    It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time ‘at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

    The BPA's view is: 'As with all new technology, there are issues associated with its use:

    a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
    b) Some ‘drive in/drive out’ motorists that have activated the system receive charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


    Even if an Operator shows a list with 'no record' of that car registration in-between the times, this would not discount the 'double visit' possibility as its well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one ca registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

    Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. SmartParking have failed to clearly inform drivers about the cameras and how the data will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that SmartParking present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronized with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.


    4)
    Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

    I also wish to reference the Aziz test (as my case is different to that of Beavis v Parking Eye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

    And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

    5) No legitimate interest - this charge is not like that in the Beavis car park/contract.

    This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

    The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

    It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

    The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

    As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

    There is no comparable complex 'commercial interest' here and the charge is unconscionable, being set to punish drivers as there is no comparable 'turnover of bays' aim, as was the rationale behind the Beavis charge in a retail park.


    The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

    In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule.
    (Lord Dunedin's four tests):

    ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

    POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

    If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.


    I have made my detailed submission to show how the applicable law (POFA), caselaw (Beavis) undoubtedly supports my
    appeal, which I submit should now be determined in my favour.

    This concludes my
    POPLA appeal.

    Yours faithfully,
    • bill12345678
    • By bill12345678 11th Sep 18, 11:01 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    • #7
    • 11th Sep 18, 11:01 PM
    • #7
    • 11th Sep 18, 11:01 PM
    Could someone have a look at this draft for my popla appeal? It's my firdt go at it so may need some work.
    Thanks
    • Coupon-mad
    • By Coupon-mad 11th Sep 18, 11:45 PM
    • 61,458 Posts
    • 74,344 Thanks
    Coupon-mad
    • #8
    • 11th Sep 18, 11:45 PM
    • #8
    • 11th Sep 18, 11:45 PM
    That POPLA appeal is ancient, at least 3 years old.

    Years since we've seen the doomed 'Aziz' argument which - among other points - failed to persuade the Supreme Court in ParkingEye v Beavis in 2015 and led to them making a TERRIBLE 'decision'.

    Bin it and just copy any other Smart POPLA appeal from a 2018 thread (no links, search and ye shall find dozens).

    You appear to have completely missed the entire point as to why you appealed as registered keeper without saying who was driving, and have missed that off the POPLA appeal even though that's the 100% slam dunk winning point!

    All other Smart POPLA appeals from registered keepers start with 'no keeper liability'.

    Do you think I need to add a section on incorrect reg number input?
    You are still in the mindset that it was your fault with the VRN input...stop! What about if it was a fault of their machine output? Whatever the cause, it's inaccurate data.

    Could EASILY have been a sticky key, or faded A-Z keys, or a faulty machine. Yes you can add (to your second draft, after binning that first one) a point that the driver input their correct VRN but the keypad system appears to have (...what? missed a digit? missed the numbers completely? transposed two digits? confused O (the letter) with 0 (zero) which is a well known scam used by PPCs).

    Unless you know that the driver input the VRN of their other car (very common) in which case the Rectification Notice example linked by Le_Kirk for you already, should be sent to Smart (as well as appealing to POPLA starting with 'no keeper liability') but the Rectification Notice to Smart must be adapted to remove any admission as to who the driver actually was.

    In that linked example in my post about your right for Rectification of inaccurate data, the poster had already blabbed about the driver so I was helping them fend off a court claim as the driver, which is not the case for you.

    Even if the driver input the wrong VRN, they can still write to the DPO to rectify the data!

    What's the issue with the 'wrong VRN', please tell us how you know & what the error is?

    Please read up about Rectification Notices and send one to Smart.

    And show us that new draft POPLA appeal after searching Smart POPLA no keeper liability and change the ADVANCED search default to 'show results as posts' in this forum ONLY, not the whole of MSE.
    Last edited by Coupon-mad; 11-09-2018 at 11:50 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Weesey77
    • By Weesey77 12th Sep 18, 2:36 PM
    • 1 Posts
    • 0 Thanks
    Weesey77
    • #9
    • 12th Sep 18, 2:36 PM
    • #9
    • 12th Sep 18, 2:36 PM
    Hi I'm in the same situation but I admittedly input the last 3 digits of my car reg instead of the first 3 digits. I actually still have my parking ticket receipt but Smart Parking are still insisting that I did not pay for car parking for my car. I have submitted an appeal via POPLA too. Do you think I stand any chance?
    • Umkomaas
    • By Umkomaas 12th Sep 18, 2:39 PM
    • 19,388 Posts
    • 30,622 Thanks
    Umkomaas
    Hi I'm in the same situation but I admittedly input the last 3 digits of my car reg instead of the first 3 digits. I actually still have my parking ticket receipt but Smart Parking are still insisting that I did not pay for car parking for my car. I have submitted an appeal via POPLA too. Do you think I stand any chance?
    Originally posted by Weesey77
    It depends on what you put in your POPLA appeal. If, as it appears possible, given what you written above, you have identified yourself as the driver, your chances are diminished.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • bill12345678
    • By bill12345678 13th Sep 18, 7:57 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    draft appeal ver 2 part 1
    POPLA CODE: xxxx

    On xxxx I received a Notice to Owner from SmartParking alleging a parking offence on xxxx, and demanding a charge to be paid. My appeal to the Operator, SmartParking was rejected on xxxx. I am the registered keeper of vehicle registration xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:




    1) A compliant Notice to Keeper was never served - noKeeperLiability can apply.
    2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
    3) Insufficient signage
    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    5) Failure to show evidence of reliable ANPR system



    1) A compliant Notice to Keeper was never served - noKeeperLiability can apply.

    This operator has not fulfilled the 'second condition' for
    keeperliability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeperliability simply does not apply.
    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
    ''Right to claim unpaid parking charges from
    keeper of vehicle:
    4(1) The creditor has the right to recover any unpaid parking charges from the
    keeper of the vehicle. (2) The right under this paragraph applies only if
    (a) the conditions specified in paragraphs 5, 6*, 9, 11 and 12 (so far as applicable) are met;
    *Conditions that must be met for purposes of paragraph 4:


    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)(b)has given a notice to keeper in accordance with paragraph 9.

    The NTK must have been delivered to the registered keepers address within the relevant period which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9 they have consequently failed to meet the second condition for keeperliability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescripted warning about 'keeperliability' were not properly given.

    2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

    In cases with a keeper appellant, yet no POFA 'keeperliability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who 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.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.
    The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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; they will fail to show I can be liable because the driver was not me.


    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 keeperliability: 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 keeperof 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 keeperliability does not generally pass.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:




    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:





    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' 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.
    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one. This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.'' From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself. The letters seem to be no larger than .40 font size going by this guide:


    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:



    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1 to 2 inch letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3 inches or even larger.''


    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:


    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
    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.

    SmartParking signage at the Ship Inn car park states; Motorists must enter their full, correct vehicle registration when using the payment machine; (figure 1). This only refers to the pay machines installed in the car park. Signage should make clear reference to correctly entering their registration plate in the phone and pay app also.




    • bill12345678
    • By bill12345678 13th Sep 18, 7:58 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    4) 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 unredacted 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 CoP) 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 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

    5) Failure to show evidence of reliable ANPR system

    Also
    SmartParking have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
    SmartParking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

    A correctly calibrated ANPR system and associated mobile phone software used to pay for parking should be able to know if a registration plate being entered by the customer using the car park has in fact entered the car park. In this case a payment was made for a car registration incorrectly entered and therefore never existed on the ANPR system however a payment for the correct amount covering the period stayed was still accepted. In these circumstances when a number plate entered does not match up with the ANPR system a warning should be generated by the system. A simple character recognition software or even a human being could then attempt to match the number plate recorded by the ANPR to the most closely matching number plate registered and paid for by the customer. To ensure accuracy of this simple yet effective measure the time the customer entered the car park could be correlated with the time the payment was made.

    I would like to draw your attention to the following case where a motorist received a parking ticket as a result of them entering their registration number in wrong

    Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

    The judge ruled - that the case hinged on whether the motorist had paid or not, and that the burden of proof lay with Park With Ease to show that the motorist hadn't. As he felt they hadn't been able to show that without any doubt the claim was dismissed.
    • Fruitcake
    • By Fruitcake 13th Sep 18, 8:01 PM
    • 37,385 Posts
    • 84,249 Thanks
    Fruitcake
    As has already been mentioned more than once, are you sure that the correct VRN was not entered? You only have a scammers word that it wasn't. Perhaps the driver did put it in correctly but there is a problem with the scammers system that has corrupted the data.
    You should put the scammers to strict proof that there allegations are true.

    Your point about 'phone apps is irrelevant. The 'phone is another type of payment machine so is already covered by the signage.
    Last edited by Fruitcake; 13-09-2018 at 8:06 PM.
    I married my cousin. I had to...
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    • bill12345678
    • By bill12345678 13th Sep 18, 8:24 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    Thanks for that input.
    To be honest I just need to know if it would be a winner at POPLA as it stands as NTK. I may well add more about proof of reg number but right now I just want to get it over with.
    • Umkomaas
    • By Umkomaas 13th Sep 18, 9:32 PM
    • 19,388 Posts
    • 30,622 Thanks
    Umkomaas
    Thanks for that input.
    To be honest I just need to know if it would be a winner at POPLA as it stands as NTK. I may well add more about proof of reg number but right now I just want to get it over with.
    Originally posted by bill12345678
    But we can't tell you that - only POPLA can.

    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)(b)has given a notice to keeper in accordance with paragraph 9.

    The NTK must have been delivered to the registered keepers address within the relevant period which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9 they have consequently failed to meet the second condition for keeperliability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescripted warning about 'keeperliability' were not properly given.
    You need to spell this out to the POPLA assessor with precise dates. Don't expect former nail technicians, call centre drones or budding soft porn authors to not need significant help in working this out.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • bill12345678
    • By bill12345678 13th Sep 18, 9:37 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    Thanks for that i'll update it with the dates when I submit I just didn't want to put too much info that could possibly identify who it's from though they must get hundreds a day!
    Other than that do you think I should submit this? Sorry to sound so negative but just want to see an end to this.
    • Coupon-mad
    • By Coupon-mad 14th Sep 18, 12:05 AM
    • 61,458 Posts
    • 74,344 Thanks
    Coupon-mad
    Yes.

    How many times do people need to be reassured, that if they have NEVER said who was driving, and appeal to POPLA as the registered keeper only, with a case against:

    Smart
    Highview
    CEL (Civil Enforcement)
    APCOA

    and
    CP Plus

    (to name just five 'non-POFA' parking firms who can only hold drivers liable)...

    ...you WILL WIN.

    Just be careful to check you haven't added any words that say 'I did this/I didn't see the sign...' as we can't check every word of every POPLA appeal!

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • bill12345678
    • By bill12345678 14th Sep 18, 5:42 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    Just to be 100% when I submit is it definitely under "other" and not "I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking"


    Thank you
    • Umkomaas
    • By Umkomaas 14th Sep 18, 6:05 PM
    • 19,388 Posts
    • 30,622 Thanks
    Umkomaas
    All POPLA appeals should be submitted as 'Other', all other options have 'trap' written on them!
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • bill12345678
    • By bill12345678 14th Sep 18, 6:16 PM
    • 10 Posts
    • 2 Thanks
    bill12345678
    Thank you. appeal is now submitted. How long does it normally take?
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