smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

[cindy41aa]

I recently parked at asda and got a parking notice. long story short....I parked in asda for approx. 1.5hrs after buying a 2hr ticket and I left within allotted time. I them returned approx. 20 mins later and bought another ticket for 2hrs. I again left within the allotted time. So, whats the problem, your thinking?? The problem I have, is that I place both tickets on my dash board...but as I closed the door of my car the SECOND ticket blow off onto my seat and could not be seen by the parking attendant!!!! They issued a ticket for over staying as they'd read the FIRST tickets time and believed I over stayed.
I wrote to smart parking stating this and sent both tickets as evidence with an explanation. (I photo copied these tickets also, so I have a copy) but they are upholding the fine on the grounds that car park users are only allowed to stay for a maximum of 2hrs in this particular car park. I've been back and read the signs...it does state a maximum 2 hrs stay but does not state that users are not allowed to return and use the car park again for a further 2 hrs....(like a council sign for instance...e.g-30 mins parking with no return for 2hrs). Had my ticket not blown off and been displayed, I doubt the would have even have know I already used the car park before that day. They also say I have breached the terms and cons for not displaying a ticket.
WHATS GROUNDS DO I HAVE (IF ANY) TO APPEAL WITH POPLA???? ARE SHOULD I JUST PAY????

[mystery1]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

I'll sort popla early next week. Could do with a copy of the PCN, appeal and signs if possible. (suitably sanitised)

M1

[cindy41aa]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

many thanks for quick response. feel very annoyed about situation, but worrying about payment and time limits for payments ect. im hopeless with computers but will send all info you request soonest.
regards Annette

[Kati]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

If you can't post it up, email it to me with a link to your thread and I'll do it xx

[cindy41aa]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!


THIS IS MY APPEAL LETTER OF REPLY + PCN AND PROOF OF TICKETS
WILL POST CAR PARK SIGNAGE WHEN HAVE THIS!


28th May 2015
I am writing to appeal against a parking charge I received on 28th May 2015 whilst using the car park at Asda, Sutton in Ashfield, Nottinghamshire.
I entered the car park and bought a ticket at 10.21am (ticket number 7411459). I placed the ticket on the dashboard in the front window of my car. I returned to my car and left the car park at approx 12.10pm.
I later returned to the same car park and parked at 12.31pm. I bought another ticket (ticket number 7406539), which I again placed on my dashboard near the first ticket. I returned to my car at approx 1.30pm.
On returning to my car, I find that I had received a parking charge. I was unsure why this had happened, as I had purchased tickets on both occasions that I had used the car park that day. I subsequently found the second ticket I had purchased on the driver's seat of my car and not on the dashboard where I had placed. I can only assume that the wind had caught the second ticket as I closed the car door and unfortunately blew it off my dashboard.
I fully understand the role of the parking attendant and why they would have issued this parking charge...It would have looked like I had over stayed the time limit on the first ticket (that was still on the dashboard), as the second ticket was unfortunately on my seat!!! As there is no adhesive on the tickets, I was unable to secure either of them to the window screen of my car.
Please take into account the above when considering this appeal. I used the car park on x2 occasions on 28th may 2015, and adhered to the conditions of use on both occasions, by purchasing a ticket and leaving within the allocated times, but due to a very maddening circumstance, I was unfortunately issued with a parking charge.
Kind Regards

[cindy41aa]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!


CAR PARK SIGNAGE AS PROMISED. It does show 2 hrs max stay but does say that you can not return for a second visit!

[mystery1]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

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.


















1.The charges are penalties.




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 £100. 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 could have purchased a ticket for £1 Neither is it commercially justified because it would make no sense for Asda to not give customers time to spend money. If you could park for £1 then £70 is clearly a penalty. It is unconscionable and extravagent. The £70 is not a genuine pre estimate of loss as the loss of revenue being £1 is crystal clear nor is it a genuine offer to park for £70. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £70 cannot be so as the figures quoted include business costs. Parking Eye lost in court on this very point in Parking Eye v Cargius which distinguishes Beavis. In any event the driver did pay and the case is because the ticket blew over in the wind. I submit that the term which requires the ticket to be in the windscreen is unfair due to the lack of adhesive on the ticket which places the driver in a position whereby they have failed to meet the required term through no fault of their own. A clear unfair term which is unenforceable.




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 a 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 the case or trespass. Parking Eye v Cargius distinguished Beavis in relation to paid parking. Beavis is also subject to appeal to the supreme court in any case.








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 carpark where they could have paid £1 had they seen the signs which they did not. It was not a genuine attempt to contract for unlimited parking in return for £70.


As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.




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 Parking eye 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 PEA 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




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 unless they are deceiving the taxman.


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.




The BPA Code of Practice states under appendix B, entrance signage:


“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”




For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.




When with reference to the BCP Code of Practice, it actually states:


"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"






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.














M1

[cindy41aa]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

thanks very much. appeal sent......i'll post outcome soonest! hope its good news.

[cindy41aa]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

quick question...ive sent appeal with attached info as kindly supplied, but do I need to send further evidence ie my original appeal letter to SMART PARKING and pics of asda signage????

[mystery1]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

Not yet and maybe never depending on their evidence pack.

M1

[cindy41aa]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

"do I need to send further evidence ie my original appeal letter to SMART PARKING and pics of asda signage????"

SORRY NOT SURE I WORDED LAST POSTED VERY WELL.
What I meant to say was...do I need to send my original appeal letter (that I sent to smart parking) on to POPLA as evidence?? plus signage pics??

[mystery1]

Re: smart parking at asda PROOF OF PAYING FOR TICKET, BUT STILL CHARGED!

No.

M1