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Hi All,
Please can somebody assist me on this. I have seen lots of threads by M1 (if you are reading this M1 please help!).
Usual story here, I have received a PCN from Smart parking, see attached photos of the PCN! The car park in question is in STROTHERS LANE, Inverness.
I parked at the Car Park in question for 25 minutes according to the ANPR photographs. The PCN is over alleged breach of terms and conditions.
I waited for about 3 minutes until somebody approached me with a ticket that still had 3 hours remaining on it. So i accepted it and put it in clear view on my dashboard. (No loss of profit here). Signage on the car park was EXTREMELY limited and was behind a big white van, thus i couldn't clearly see the T&C's. Yesterday i went back to check if the signage detailed that tickets must be purchased in all cases and not accepted from someone else - there was nothing in writing to confirm this. According to Smart Parking LTD. (TCP):
"It is the responsibility of the driver of the vehicle to ensure they purchase a valid ticket for the correct Vehicle Registration Mark (VRM) and for the duration of their stay when using this car park. As you have failed to do this, and have therefore breached the advertised terms and conditions, we have no option but to uphold the Parking Charge Notice."
Firstly, if you look at the letter, the grammar is shocking, there is an unfinished sentence on the letter and the postcode is incorrect, they had to scribble out the postcode on the envelope then wrote it at the bottom of the envelope! Second of all on poppa.org.uk the PCN number is not valid... Have I put in the incorrect number? Furthermore, I asked them to review CCTV to confirm I had a ticket, however as they do not have CCTV on the facility, only an ANPR Camera therefore they technically can't prove that i didn't have a ticket in the car.
I was only there for 25 minutes and they are charging me (invoicing) £100 unless i pay on the 30th April, on which hand will be £60. I don't know how in the name of god they can be allowed to charge £60 when its £1 for 4 hours. Totally barbaric! I didn't even leave my car.
Please see below my response to their letter. (M1 you may recognise this because i based it on your letter to 'Louise123' I hope you don't mind!):
"To whom this may concern,
Further to my appeal made on 15 April 2015 (refer FIG 1), I am the registered keeper of
the above vehicle and I am appealing against the above ‘Parking Charge Notice’ (PCN)
number as above, from Smart Parking Ltd. This was issued on 31st March 2015 (letter
dated 10/04/2015 and received on 15th April) for alleged “breach of advertised terms and
conditions within STROTHERS LANE INVERNESS’.
SCENARIO
I pulled into ‘Strothers Lane’ car park, Inverness, whilst waiting for a relative to depart
from the train station adjacent to the car park in question. I did not, firstly, think it was
applicable to be in possession of a ticket as the time surpassed 1800 hours. The signage
was not clearly visible stating the maximum time limit. When parked, I noticed the car
park was half empty which can be visible to the CCTV footage which can be obtained
from the car park. After approximately 3 minutes of waiting, I was approached by a
gentleman coming from the train station who had a valid parking ticket which had 3 hours
approximately remaining. Therefore, I had a valid ticket and no major less has been
occurred.
CHALLENGE
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 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, unsynchronized and non-compliant ANPR system.
JUSTIFICATION
1. The charges are penalties.
The charges are represented as a Trespass. Whilst it is disputed that a contract was
entered into (see point 2) according to the BPA code "If the parking charge that the driver
is being asked to pay is for an 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"
The sum of £100 is clearly not proportionate to a stay in a car park (allegedly 26 minutes)
in which the vehicle was entitled to be in but overstayed. Neither is it commercially
justified because it would be unreasonable. You either trespass or you don't. If you allow
trespass when it suits you it's not trespass. As this is clearly a trespass scenario, although
not described as such, the charges in law need to be a genuine pre estimate of loss. May
one point out at this point that the car park, between the time of 18.01.28 hours and
18.26.07 hours on the date questionable, was not half full.
I require Smart Parking LTD 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 no 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 this case for
trespass.
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 limited time car park - and therefore I contend the elements of a contract
were conspicuous by their absence. If it is dark it is not good enough for signs just to be
present, they must be able to be seen (i.e. sufficient lighting).
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 parked 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.
Therefore, 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.
This is evident in the case study below.
Case Study A
Case No. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked below):
http://nebula.wsimg.com/71a4eb1b5de2...essKeyId=4CB8F2392A09CF228A46&dispositi
on=0&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.
Case Study B
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.
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, synchronized 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 Parking Eye v Fox-Jones on
8 Nov 2013. That case was dismissed when the judge said the evidence from 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."
Please can somebody assist me on this. I have seen lots of threads by M1 (if you are reading this M1 please help!).
Usual story here, I have received a PCN from Smart parking, see attached photos of the PCN! The car park in question is in STROTHERS LANE, Inverness.
I parked at the Car Park in question for 25 minutes according to the ANPR photographs. The PCN is over alleged breach of terms and conditions.
I waited for about 3 minutes until somebody approached me with a ticket that still had 3 hours remaining on it. So i accepted it and put it in clear view on my dashboard. (No loss of profit here). Signage on the car park was EXTREMELY limited and was behind a big white van, thus i couldn't clearly see the T&C's. Yesterday i went back to check if the signage detailed that tickets must be purchased in all cases and not accepted from someone else - there was nothing in writing to confirm this. According to Smart Parking LTD. (TCP):
"It is the responsibility of the driver of the vehicle to ensure they purchase a valid ticket for the correct Vehicle Registration Mark (VRM) and for the duration of their stay when using this car park. As you have failed to do this, and have therefore breached the advertised terms and conditions, we have no option but to uphold the Parking Charge Notice."
Firstly, if you look at the letter, the grammar is shocking, there is an unfinished sentence on the letter and the postcode is incorrect, they had to scribble out the postcode on the envelope then wrote it at the bottom of the envelope! Second of all on poppa.org.uk the PCN number is not valid... Have I put in the incorrect number? Furthermore, I asked them to review CCTV to confirm I had a ticket, however as they do not have CCTV on the facility, only an ANPR Camera therefore they technically can't prove that i didn't have a ticket in the car.
I was only there for 25 minutes and they are charging me (invoicing) £100 unless i pay on the 30th April, on which hand will be £60. I don't know how in the name of god they can be allowed to charge £60 when its £1 for 4 hours. Totally barbaric! I didn't even leave my car.
Please see below my response to their letter. (M1 you may recognise this because i based it on your letter to 'Louise123' I hope you don't mind!):
"To whom this may concern,
Further to my appeal made on 15 April 2015 (refer FIG 1), I am the registered keeper of
the above vehicle and I am appealing against the above ‘Parking Charge Notice’ (PCN)
number as above, from Smart Parking Ltd. This was issued on 31st March 2015 (letter
dated 10/04/2015 and received on 15th April) for alleged “breach of advertised terms and
conditions within STROTHERS LANE INVERNESS’.
SCENARIO
I pulled into ‘Strothers Lane’ car park, Inverness, whilst waiting for a relative to depart
from the train station adjacent to the car park in question. I did not, firstly, think it was
applicable to be in possession of a ticket as the time surpassed 1800 hours. The signage
was not clearly visible stating the maximum time limit. When parked, I noticed the car
park was half empty which can be visible to the CCTV footage which can be obtained
from the car park. After approximately 3 minutes of waiting, I was approached by a
gentleman coming from the train station who had a valid parking ticket which had 3 hours
approximately remaining. Therefore, I had a valid ticket and no major less has been
occurred.
CHALLENGE
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 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, unsynchronized and non-compliant ANPR system.
JUSTIFICATION
1. The charges are penalties.
The charges are represented as a Trespass. Whilst it is disputed that a contract was
entered into (see point 2) according to the BPA code "If the parking charge that the driver
is being asked to pay is for an 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"
The sum of £100 is clearly not proportionate to a stay in a car park (allegedly 26 minutes)
in which the vehicle was entitled to be in but overstayed. Neither is it commercially
justified because it would be unreasonable. You either trespass or you don't. If you allow
trespass when it suits you it's not trespass. As this is clearly a trespass scenario, although
not described as such, the charges in law need to be a genuine pre estimate of loss. May
one point out at this point that the car park, between the time of 18.01.28 hours and
18.26.07 hours on the date questionable, was not half full.
I require Smart Parking LTD 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 no 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 this case for
trespass.
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 limited time car park - and therefore I contend the elements of a contract
were conspicuous by their absence. If it is dark it is not good enough for signs just to be
present, they must be able to be seen (i.e. sufficient lighting).
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 parked 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.
Therefore, 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.
This is evident in the case study below.
Case Study A
Case No. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked below):
http://nebula.wsimg.com/71a4eb1b5de2...essKeyId=4CB8F2392A09CF228A46&dispositi
on=0&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.
Case Study B
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.
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, synchronized 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 Parking Eye v Fox-Jones on
8 Nov 2013. That case was dismissed when the judge said the evidence from 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."
Attached Files
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