PCN - Smart Parking (Asda) - sent to debt recovery during open appeal - won

[Bbarker]

Hello! Really hoping I can get some advice, if at all possible! I used Asda's car park (Kings Heath) on 24/3/15. I had just ended my employment at a marketing distribution company and had many very old boxes of leaflets and brochures to dispose of. I went to the car park to use the recycling facilities as they have 2 large recycling bins meaning I could get it all in. After this I did my weekly shop. On 3/4/2015 the owner of my former address contacted me to say she had received a letter addressed to me. I asked her to open it and she informed me I had received a PCN from smart parking. The letter stated they wanted £40. If that wasn't paid in 14 days it went up to £70 and if that wasn't paid in 28 days another £10 would be added. The limit in the car park states 1.5 hours. I had thought it was 2.

I immediately appealed to them that I hadn't been parked for the alleged time and that they could check their CCTV surely. ( the PCN shows 2 pictures of my car driving in the cp but not parked). I also asked that they do not use my former address for any further correspondence. I received a an email asking for a receipt from ASDA on the day in question. I replied that I did not still have my receipt and heard nothing further until...

on the 26/6/2015 I received a letter from DEBT RECOVERY PLUS LIMITED. This was a request for £120 with no explanation of where the extra amount had come from. The letter also contained a threat that my driving license having my previous address on will lead to a further fine of £1000. I have no idea why this has been said as my new address is very much the one registered with the DVLA. Surely this is how the debt recovery agency got my address????

Anyway, my appeal was not closed and I did not receive the POPLA code I had requested in my initial appeal.

I contacted the British parking Association and explained what had happened and they said:

'The operator confirmed they received your appeal and requested further information. Unfortunately they did not receive the further information and therefore continue to collect the debt.
I have advised Smart Parking that if they did not receive the additional evidence they still need to send a formal response either accepting the appeal or rejecting it. In view of this, Smart Parking have confirmed they will be sending out a rejection letter today which will contain your POPLA verification code. This will allow you 28 days to appeal to POPLA – the independent appeals service.'

So therefore I need to spend more of my time on this silly matter, and need some points to make to POPLA. ( other than what is this £120 made up from!!??)


Thank you in advance for any help or advice!!!!

[mystery1]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

I'll do a popla appeal this weekend.

M1

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Thank you ever so much!!!! That really would be incredible!!

I've just realised as well, I have no idea/ information as to how much I am being requested to pay or how much the reduced rate/ full amount they are asking for is. I only know the 'debt recovery' was for £120. I haven't even been told where to send any money to!! I'm not sure what it is that's being upheld......

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

I'll do a popla appeal this weekend.

M1

I've been back to the car park and the 'warning' signs do not mention that the time in the car park includes using the recycling facilities. It only refers to being 'parked'.

[mystery1]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Did you take pictures ?

Do you have the original PCN and a copy of your appeal ?

M1

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Did you take pictures ?

Do you have the original PCN and a copy of your appeal ?

M1

Hiya, yes I have pictures, will upload when I get home - sorry for the delay.

The original PCN should have been delivered by now, I have had to have it forwarded as they couldn't be bothered to tell the DVLA they had been given the wrong address for me. I will get a copy of this uploaded asap.

Unfortunately and incredibly stupidly I don't have a copy of the original appeal - can I ask smart for a copy of this? I thought a copy would be sent to my email. As someone that usually backs herself up I feel really silly!! I most definitely requested a POPLA code in my original reply.

I really didn't think there would be a problem, I assumed they had cameras to reference that I was using the recycling facilities!!

Why do they state that if I choose to appeal to POPLA I can't have the reduced rate?! Surely that's not allowed!?

[mystery1]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Unfortunately and incredibly stupidly I don't have a copy of the original appeal - can I ask smart for a copy of this? I thought a copy would be sent to my email. As someone that usually backs herself up I feel really silly!! I most definitely requested a POPLA code in my original reply.

Really it was only to see if you said i did this, i did that which effectively informs them that you were drivingrather than the driver did this, the driver did that.

Why do they state that if I choose to appeal to POPLA I can't have the reduced rate?! Surely that's not allowed!?

They are correct. It costs them £27 + vat if you appeal and the discount is part of the ruse to pressure payment under threat of higher costs.

They'll probably get feck all though

M1

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Yes, unfortunately I referred to myself as the driver. To be honest I just thought they would have footage of me recycling and this would all be over - how naive!!

I have attached (hopefully!) the PCN, the Debt Recovery Letter and the photograph of the only notice in the car park that wasn't 15 ft up a lampost!!


THANK YOU

[mystery1]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

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.


1.The charges are penalties.

The charges are represented as an overstay. The driver on the day went shopping in store and then went to the recycling area to dispose of some waste in an area which is not part of the car park and has no marked bays but is clearly desgned for vehicles to unload. 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 was allowed to park for 1.5 hours with longer available and an area designed for unloading which is not for parking. Neither is it commercially justified because it would make no sense to restrict customers time to shop 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 longer a driver stays in the various shops then the more profit is made. £70 is clearly a penalty. The £70 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. £70 cannot be so as the figures quoted include business costs.


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 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.''

When one looks at the sign one sees that blue badge holders are not allowed to park in disabled bays without displaying a badge and are charged £70 if they do then it becomes even clearer that £70 is to deter people from misusing disabled bays and that £70 is an arbitrary amount charged for all transgressions and as such is an unenforceable penalty.




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

The driver did not see the signage and thus no contract was formed.


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 nothing and had they seen the signs they would have asked Asda for more time. 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 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/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&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. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear.

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"

There were no entry signs at the time or at least they were no obvious enough to be seen.


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 inParkingEye 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

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Thank you so much!!! I really hope I can repay the favour! I will submit this now and let you know the outcome ASAP.

THANK YOU

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

This is really fantastic. Thank you so much for all that effort!

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Still awaiting a decision....

[Kati]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

Still awaiting a decision....

fingers crossed it won't be much longer x

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

My case now 'fell into a list to be considered' a month ago :o

[Bbarker]

Re: PCN - Smart Parking (Asda) - sent to debt recovery during open appeal

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.


The Assessor’s reasons are as set out.


The Operator should now cancel the parking charge notice forthwith.


Reasons for the Assessor’s Determination
It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: “Over free time”. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
It is the Appellant’s case that:
a) The parking charge does not represent a genuine pre-estimate of the loss which could have been caused by the alleged breach.


b) There was insufficient signage on site to bring the terms of parking to the attention of motorists.


c) The Operator does not have sufficient authority to issue a parking charge notice in relation to the land in question.


d) The Operator has not demonstrated that its Automatic Number Plate Recognition technology was correctly calibrated.


Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.


The Operator has produced part of its contract with Asda to provide car parking services; however, the site in question is not mentioned at any point. There appear to e several appendices not produced one of which, “Car Parks” seems likely to list the sites covered by the agreement. Without any evidence that the Operator has the authority of the landowner to manage this site, I cannot find that the Operator has proven it case.

Consequently, I must find that the Operator has failed to produce sufficient evidence to refute the Appellant’s submission that it did not have authority to issue a parking charge notice.


Accordingly, I must allow the appeal. I need not decide any other issues.

- - - Updated - - -

Thank you M1 you are a godsend to us all!!!