Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance - WON

[Louise123]

Hi,

I recently received a PCN from Smart parking Ltd as I had overstayed. It was Black Friday and I had my two month old baby with me. I was meeting my friend who also parked in the same Carl park and stayed for the same length of time.

There was plenty of spaces despite it being busy in Asda. I did make a purchase at Asda but I did go around some other shops aswell. I was there from about 12:45 to about 16:00. I don't remember there being any warning signs but I don't doubt that there weren't any.

I appealed against the PCN with Smart parking and as expected my appeal was upheld. Would anyone be able to help me with a POPLA appeal letter? I am new to this and was originally told to ignore the PCN, however I have since been advised the best route to go down is a POPLA appeal.

Please see attached the letter I received from Smart Parking in response to my first appeal to them.

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

The above attachment is the first part of the letter.

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

The car park was in. Shipley West Yorkshire.

[mystery1]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

You're 3rd in the queue of people awaiting a popla appeal

M1

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

Ok thank you.

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

I have attached the second part of the letter Smart parking ltd sent me.

i can share the original PCN if required.

Many thanks

im hoping if I win the appeal I will be to buy a highchair for my daughter in the new year!

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

The original PCN

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

My response to the PCN to Smart parking which was upheld (rejected).

I am the registered keeper of the above vehicle and I am appealing against the above ‘Parking Charge Notice’ (PCN) from Smart Parking. This was issued on 28th November 2014 (letter dated 10/12/2014) for alleged “breach of advertised terms and conditions within ASDA store Shipley”.


I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:


1. The contract with the landowner is not complaint with the British Parking Association Code of Practice. Smart Parking have no legal status to offer parking or enforcement charges, nor pursue them through the courts.
2. No breach of contract and amount demanded is not a genuine pre-estimate of loss
3. The penalty charge is both unlawful and unreasonable.
4. The Notice to Keeper issued is not compliant with the Protection of Freedoms Act 2012


The detailed appeal points are as follows:


1. CONTRACT WITH THE LANDOWNER NOT COMPLIANT WITH THE BRITISH PARKING ASSOCIATION CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES


Smart Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. Smart Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.


I have also asked that POPLA check whether Smart Parking have indeed provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I suggest that any contract is not compliant with the requirements set out in the British Parking Association (BPA) Code of Practice.


I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. 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 was that "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.




2. NO BREACH OF CONTRACT AND NOT A GENUINE PRE-ESTIMATE OF LOSS


There was no parking charge levied, the car park is ‘free’. On the date of the claimed loss (28/11/2014) the car park was not at full capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Smart Parking lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.


The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by £30 by ‘early payment’ that it is unreasonable to begin with.




3. UNLAWFUL & UNREASONABLE PENALTY CHARGE


Since there was no demonstrable loss or damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).


The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”




4. NOTICE TO KEEPER NOT COMPLIANT WITH THE PROTECTION OF FREEDOMS ACT 2012


The ‘Notice to Keeper’ (NTK) letter I received omits the required information if it were to establish 'keeper liability' under the Protection of Freedoms Act (POFA) POFA 2012. Smart Parking have omitted all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely:


''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;
©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.''


In this case, the NTK has not been correctly 'given' under POFA2012 and due to the many omissions, it is a nullity. As the driver has not been identified for this parking event, Smart Parking do not have the right party for their alleged 'contract/breach' since they have failed to establish keeper liability.


This concludes my appeal. I appreciate you taking the above into account during your objective considered assessment.


Please do not hesitate to contact me should you require any further information or clarification.


If you choose to reject this appeal then please send me a POPLA code so that I may take this up with the independent appeals service.




Yours sincerely,


Mrs X

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

Additional info. I was shopping with my friend who lives nearly Shipley, she didn't see any warning signs either that the free parking was limited to 2hrs, she is awaiting a PCN also for the same offence.

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

I can't read the PCN I have attached myself, please let me know if you need a clearer copy posting.

[mystery1]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

I can't read the PCN I have attached myself, please let me know if you need a clearer copy posting.

Would be good :okay:

M1

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

The original PCN

[Louise123]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

I'm not sure if this one is any clearer.

[mystery1]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

I'm not sure if this one is any clearer.

I can read it :okay:

M1

[mystery1]

Re: Ticket from Smart Parking in Asda carpark - POPLA appeal letter assistance

Any chance you have pictures of the signs at Asda ?

M1