Parking Charge Notice

[ubervixencorp]

Hello all, I would be grateful if anyone can offer me some guidance please?
I have recently appealed a PCN from Smart Parking after I was photographed overstaying in Asda car park in Shipley, Bradford. Smart Parking have written to me and stated that they will be upholding the PCN as they believe that it was correctly issued in accordance with the terms & conditions advertised. Smart Parking have given me until 29/08/15 to pay the reduced fee of £40 to clear the PCN, after that it will raise to £70. The letter also notifies me of my right to appeal to POPLA.

I'm not sure what to do at this point, should i just pay the £40 or continue with an appeal to POPLA? I have read on this forum another instance of someone being charged for overstaying in the same car park and being successful in their appeal.
I overstayed by 34 minutes so I have to admit that fact but the main point of my appeal to Smart Parking was how they could justify charging me the amount for only 34 minutes. The car park was not full and had plenty of spaces.

Any advice would be welcome.

Thanks.

[mystery1]

Re: Parking Charge Notice

Post up the PCN without your name and address and i'll sort a popla appeal out.

M1

[ostell]

Re: Parking Charge Notice

If you were actually shopping in ASDA go in with the PCN and any receipts from ASDA and tell the manager that you want this PCN cancelled. Do not talk to the help desk, talk to the manager.

[ubervixencorp]

Re: Parking Charge Notice

Thanks Mystery 1.

I tried to upload the original PCN minus all my details but it was too large. Below is the content of the letter word for word. Pictures of my vehicle leaving and entering the car park are also included including the time the PCN as well as my registration details.

Smart Parking Ltd have the right to seek payment of the parking charge for unauthorised parking of the vehicle on the land on the relevant date as owner of the land, on the basis of a contractual right to occupy, or have possession of the land, or acting as agent of the landowner. We have identified an infringement of the advertised parking terms and conditions within the car park of ASDA STORE SHIPLEY 03/07/2015.

Smart Parking believes that a Parking charge Notice (PCN) is payable with respect to the vehicle registration ---- --- for the contravention parked in excess of the permitted free period, as a result of the vehicle exceeding the maximum stay within the car park. The contravention is supported by camera images of the vehicle entering and exiting the car park. Smart Parking Ltd are able to request registered keeper details from the DVLA, under the reasonable criteria of recovery of private parking charges. DVLA have confirmed that you are the registered keeper of this vehicle.

The car park at this store clearly displays signage to notify customers shopping at this store that there is a maximum time limit allowed for free parking. We have checked parking records at this store and we understand that colleagues have not been notified of any exceptional circumstances leading to the overstay.

We appreciate the nature of this matter could cause offence or upset if there is a valid reason for this overstay. If you were not the driver of this vehicle and you wish to provide the driver details, lodge a dispute, appeal or query, you can get in touch with us and the matter will be looked at on your behalf.

Pease keep any proof that supports a genuine appeal such as a shopping receipt/details of your Blue Badge. Instructions on how to contact Smart Parking or make a payment can be found on the reverse of this letter.

Unfortunately, in situations of non payment, we must advise you that in addition to the PCN issued, an admin fee is also payable if a debt recovery agency becomes involved.

We sincerely hope we can resolve this issue without the need of debt recovery action.


Yours sincerely,
Smart Parking Ltd.

[mystery1]

Re: Parking Charge Notice

I wish to appeal this parking charge on the following grounds.

1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.

2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.

3. Smart parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.

4. Smart parking have failed to adhere to the BPA code of practice.

5. Unreliable, unsynchronised and non-compliant ANPR system.

6. Keeper liability


1.The charges are penalties.

The charges are represented as a breach of contract but in reality is a trespass. Whilst it is disputed that a contract was entered into (see point 2) according to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £70. If the charge is more than this, operators must be able to justify the amount in advance"

£70 is clearly not proportionate to a stay in a car park in which the vehicle was entitled to be in but overstayed. Neither is it commercially justified because it would make no sense. You either trespass or you don't. If you allow trespass when it suits you it's not trespass. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss.

I require Smart parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Smart parking cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner imposes no parking fee for the area in question, there is only the limited loss to whoever it is due. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in this case for trespass.


2. Unclear and non-compliant signage, forming no contract with drivers.


I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £70 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.



3. Contract with landowner - no locus standi

Smart parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Smart parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Smart parking to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.


In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Smart parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked):http://nebula.wsimg.com/0ce354ec6697...&alloworigin=1


In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'


I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Smart parking cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.




4. Failure to adhere to the BPA code of practice.

The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.


5. ANPR ACCURACY

This 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 my 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 ParkingEye 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.


So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.

6. Keeper liability.


The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.


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, 11 and 12 (so far as applicable) are met ....


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.


9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(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;
(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)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.



The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4afb375a97d05d5a80df6?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1


Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.


M1

[ubervixencorp]

Re: Parking Charge Notice

Thank you mystery1.The appeal has been sent, I shall update the thread with any news.

[wungus]

Re: Parking Charge Notice

Any updates on your appeal?