Tweet
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
Out at the moment. Was this one held over from old popla ?
M1
Out at the moment. Was this one held over from old popla ?
M1
Loading...
-
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
HI M1,Originally posted by mystery1 View Post
It wasn't, I had to send my intent to appeal and then become accepted, and then appeal, so it was with the new serviceComment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
Been 3 losses today and in each case the reason doesn't seem to correlate to the evidence (at first glance). As i'm mid spell at work it'll be Sunday before i look closely and suggest a response.
M1Comment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
Just in case i mess up, can you post the appeal you sent and any follow up comments to the evidence. As you have a few tickets i just want to be safer.
M1Comment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
The appeal:Originally posted by mystery1 View Post
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. MET parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.
4. MET 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 an overstay. The driver on the day did not see any signs. 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"
£100 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for free. Neither is it commercially justified because it would make no sense to stop people visiting the restaurant and making larger orders which could take longer to prepare and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 cannot be so as the figures quoted include business costs.
I require MET parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET 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 allows free parking for shoppers and several hundred pounds were spent then there is no loss. 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.''
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 £100 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £100.
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
MET parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET 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 MET 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 MET 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
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.
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.
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/c289944f81b4...&alloworigin=1
Other sections are not totally complied with either. The keeper is not invited to pay. The creditor is not identified.
- - - Updated - - -
The evidence response:Originally posted by mystery1 View Post
I would like to respond to the operators evidence as follows :-
The operator at number 12 references a section regarding "the creditor" from their PCN which is not in fact present, even in their copy sent as evidence.
The operator makes no claim that the signs were well lit and easily seen in the dark. They were not.
The witness statement is 2 years old and references a contract from 2010. Thus it contains no real or practical information for 2015.
- - - Updated - - -
My response to the Beavis vs Parking Eye after MET provided no evidence by email to POPLA:Originally posted by mystery1 View Post
Please see the email below. This is what I received on the 18th of February regarding my appeal (XXXX) for comments on the Beavis v ParkingEye case. I am writing to inform you that parking operator, MET, have provided no evidence that I am able to respond to regarding this.
Comment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
I would like to lodge a formal complaint in the way my popla appeal has been decided.
The assessor has failed to produce an assessment which follows the standard which the BPA and Popla themselves have indicated with the result that the decision itself calls in to question the knowledge and skill of the assessor or the independence of the appeal handling.
I attach to this complaint my appeal and the decision as well as the BPA code of practice.
The BPA website states "As well as being judicially independent, POPLA now has an Independent Scrutiny Board; guaranteeing absolute independence"
The Popla website states
"How does the assessor make their decision?
The assessor will review the evidence supplied by both parties to establish what happened during the incident. If it is relevant to the specific appeal, the assessor will consider whether the parking operator has correctly abided by the British Parking Association Code of Practice and relevant law."
Ok, bearing in mind you have no further right to appeal and a complaint may yield nothing, i would complain to popla.
complaints@popla.co.uk , director@ispa.co.uk , aos@britishparking.co.uk , foi@dvla.gsi.gov.uk
Ref popla #xxxxxxxxx
Dear Sir/Madam,
I wish to highlight the failure of your system to both be consistent and take in to account information presented to it. I appreciate that you will not consider the appeal any further but regardless your appeals service needs to avoid repeating such errors and inconsistencies in the future in order to maintain a certain level of trust with the public unlike your competitors TheIAS who are routinely referred to as a "kangaroo court".
Firstly i would like to list some of the reasoning for upholding appeals in other popla cases recently.
Decision
Successful
Reasons for the Assessor's determination
While the appellant has raised several grounds for appeal, my report will focus on whether the operator has authority to operate on the land.
The operator has provided a signed statement regarding the landowner authority. However, as it does not set out all of the conditions covered in section 7.3 of the BPA Code of Practice, I am not satisfied that the document provided demonstrates sufficient landowner authority, as the date that the agreement started has not been completed.
In conclusion, the operator has failed to demonstrate to my satisfaction that it has the relevant landowner authority. Therefore, the appeal is allowed and I do not need to consider the appellant's other grounds for appeal.
Decision
Successful
Assessor Name
Lauren Bailey
Assessor summary of operator case
The operator’s case is that the appellant overstayed the paid parking time.
Assessor summary of your case
The appellant’s case is that the operator does not have the authority to issue parking charges on the land in question. The appellant has stated that signage at the car park is not sufficient.
Assessor supporting rational for decision
The appellant has questioned the operator’s authority to operate on the land. Within Section 7 of the British Parking Association (BPA) Code of Practice, it requires parking operators to have the written authority from the landowner to operate on the land. As such, I must consider whether the Operator has met the requirements of this section of the BPA Code of Practice. However, in this instance the operator has failed to provide any evidence in response to this ground of appeal. As such, the operator has failed to prove that it has the required authority to operate on the land in question and has failed to meet the requirements set out in Section 7 of the BPA Code of Practice. Accordingly, I must allow this appeal and the other grounds raised by the appellant do not need further consideration.
Decision: Successful
Assessor summary of operator case:
The operator’s case is that the appellant exceeded the parking time he had paid for.
Assessor summary of your case:
The appellant’s grounds for appeal are as follows:
• The appellant does not believe the operator has adhered to the Protection of Freedoms Act 2012 (PoFA 2012).
• The appellant does not believe the operator has the landowner’s authority to issue Parking Charge Notices (PCNs).
• The appellant does not feel the operator has applied a reasonable grace period.
• The appellant believes the signage displayed on site is insufficient.
• The appellant feels the PCN is not a Genuine Pre-estimate of Loss.
Assessor supporting rational for decision:
The car park in question is monitored by Automatic Number Plate Recognition cameras. The operator has provided photographic evidence of the appellant’s vehicle entering the site at 11:06 and exiting the site at 14:16. The appellant states he does not believe that the operator has the authority from the landowner to issue PCNs. Section 7 of the BPA Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has not provided POPLA with the written authorisation from the landowner. As such, I cannot confirm that the operator has the authority to pursue outstanding parking charges. Accordingly, I must allow the appeal. I note that the appellant has raised other grounds for appeal, however, as I have allowed the appeal for this reason, I did not need to consider them.
of the landowner to issue and pursue parking charge notices (PCN). Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. As the operator has failed to provide any evidence in response to this ground of appeal, it has failed to prove that it has the required authority to operate on the land in question. I acknowledge that the appellant has raised other grounds for appeal, but as I have allowed the appeal on this basis, I have not considered them.
Decision: Successful
Assessor summary of operator case
The operator’s case is that the appellant exceeded the maximum stay on site.
Assessor summary of your case
The appellant’s case is that he does not feel the Parking Charge Notice (PCN) is a Genuine Pre-estimate of Loss. The appellant does not believe the operator has the authority from the landowner to issue PCNs. The appellant believes the Notice to Keeper did not adhere to the Protection of Freedoms Act 2012 (PoFA 2012). The appellant believes the Automatic Number Plate Recognition (ANPR) cameras are unreliable.
Assessor supporting rational for decision
The appellant states he does not believe that the operator has the authority from the landowner to issue PCNs. Section 7 of the BPA Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has not provided POPLA with the written authorisation from the landowner. As such, I cannot confirm that the operator has the authority to pursue outstanding parking charges. Accordingly, I must allow the appeal. I note that the appellant has raised other grounds for appeal, however, as I have allowed the appeal for this reason, I did not consider them.
Decision
Successful
Assessor summary of operator case
Insufficient time was purchased.
Assessor summary of your case
She is the registered keeper and wishes to appeal as follows. 1. The charge is a penalty 2.
Unfair charges 3. Locus Standi 4.Signage
Assessor supporting rational for decision
The appellant has raised several grounds for appeal. However, my findings will focus on
Landowner authority as this ground has persuaded me to allow the appeal. "Section 7 of the
British Parking Association (BPA) code of practice requires operators to own the land or to have
written authority from the landowner to operate on the land. As the operator has failed to provide
any evidence in response to this ground of appeal, it has failed to prove that it has the required
authority to operate on the land in question. Accordingly, I must allow the appeal. I have not considered any other grounds for appeal as they do not have any bearing on my decision.
There are other results reported with far briefer synopsis than this for the same thing.
Contrast this with the decision in my case.
The areas of complaint are :-
1. The assessor has stated the time limit is 3 hours which is greater than the time sated as the duration of parking.
2. The assessor has said that they are satisfied on the evidence on the authority/contract point. Once again the evidence does not support this finding. The BPA code states
"7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying
out parking management, you must have the written
authorisation of the landowner (or their appointed
agent). The written confirmation must be given before
you can start operating on the land in question and
give you the authority to carry out all the aspects of car
park management for the site that you are responsible
for. In particular, it must say that the landowner (or their
appointed agent) requires you to keep to the Code
of Practice and that you have the authority to pursue
outstanding parking charges.
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"
Nowhere in the evidence supplied does it say that the BPA code of practice must be adhered to. Nowhere is the definition of the land on which you may operate, so that
the boundaries of the land can be clearly defined explained. There is a name for the land but clearly you cannot tell the boundary, as required, from that. Nowhere does it state who has the responsibility for putting up and maintaining signs. Nowhere does it state the definition of the services provided by each party to the agreement. You cannot ever decide for the person who has the burden of proof when there is no proof at all in an independent manner unless you err, are badly trained or are corrupt. At the time for rebutting the operators evidence i made it clear that what was provided was not proof. Nobody who makes an independent adjudication can miss that much without poor training, incompetence or plain old fashioned corruption. There are many decisions on the internet where section 7 failures mean the appeal was upheld.
4. Parking Eye v Beavis. I will say that although i fundamentally disagree that this is in anyway similar to that case i can see that some lazy assessors would thing Beavis, Parking that'll do even when the cases are virtual polar opposites as in this case.I'm not sure i would make a complaint on this point as a standalone item but feel it should be pointed out in light of the above.
Send to complaints@popla.co.uk, director@ispa.co.uk , aos@britishparking.co.uk , foi@dvla.gsi.gov.uk
M1Comment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
Hi m1,Originally posted by mystery1 View Post
Thanks so much for that, I will email the complaint over.
I should let you know I complained to the McDonalds and Krispy Kreme branch where I dined the time I got the ticket, and the branch manager of Krispy Kreme contacted MET and requested to cancel my charge - although I will still send those POPLA complaints.
Thanks for all your help, wouldn't have been able to do this without you- probably would have been fooled into paying!Comment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
Originally posted by mystery1 View Post
Funny how you should quote successful appeals when the assessor is Lauren Bailey as it seems she was my assessor also.Comment
-
Re: 4 parking fines IN ONE WEEK! Parking eye, Smart Parking and MET
Originally posted by thequeenisclarice View Post
The fact the same evidence and very similar appeals produces mixed results speaks volumes. Is it incompetence or are there targets in play ?
M1Comment
Comment