Tweet
Re: Smart Parking Fine - ASDA carpark
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. Smart parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.
3. Smart parking have failed to adhere to the BPA code of practice.
4. Unreliable, unsynchronised and non-compliant ANPR system.
5. No keeper Liability as PoFA 2012 schedule 4 requirements have not been met.
1.The charges are penalties.
The charges are represented as a breach of contract. According to the BPA code "If the parking charge that the driver is being asked to pay is for a breach of contract or 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. The car park wasn't full so there was no intial loss. As this is clearly a penalty, 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 allows parking for free, there is no loss to Smart parking nor the landowner. 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.''
The £70 charge is to deter abuse which is clearly in line with the law on penalties and the charge, being a penalty, is unenforceable. CEL v McCafferty.
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 in any case.
2. 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.
3. 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.
4. 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 o fmy 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.
5. Failure to comply with the requirements of PoFA 2012 schedule 4 - No keeper liability
9 2 The notice must -
(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"
The PCN has time of arrival and time of departure at the cameras located at the exit/entrance and clearly the car is/was not parked at this point and thus the period of parking is not specified as required. It is also a requirement that parking is not immediate as per the BPA code of practice.
(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.
This is unclear or missing.
(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));
(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;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
As these conditions have not been met then i, as keeper, am not liable.
M1
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. Smart parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.
3. Smart parking have failed to adhere to the BPA code of practice.
4. Unreliable, unsynchronised and non-compliant ANPR system.
5. No keeper Liability as PoFA 2012 schedule 4 requirements have not been met.
1.The charges are penalties.
The charges are represented as a breach of contract. According to the BPA code "If the parking charge that the driver is being asked to pay is for a breach of contract or 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. The car park wasn't full so there was no intial loss. As this is clearly a penalty, 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 allows parking for free, there is no loss to Smart parking nor the landowner. 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.''
The £70 charge is to deter abuse which is clearly in line with the law on penalties and the charge, being a penalty, is unenforceable. CEL v McCafferty.
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 in any case.
2. 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.
3. 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.
4. 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 o fmy 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.
5. Failure to comply with the requirements of PoFA 2012 schedule 4 - No keeper liability
9 2 The notice must -
(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"
The PCN has time of arrival and time of departure at the cameras located at the exit/entrance and clearly the car is/was not parked at this point and thus the period of parking is not specified as required. It is also a requirement that parking is not immediate as per the BPA code of practice.
(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.
This is unclear or missing.
(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));
(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;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
As these conditions have not been met then i, as keeper, am not liable.
M1
Comment