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

[Louise123]

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

I'm afraid not, I live in Halifax and the store is in Shipley. They claim that there are 21 signs at the carpark, I don't remember seeing them and neither does my friend. I could ask her to take some photos if you think it will help.

[mystery1]

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

If she could it'll help for sure. If she's not that close we'll go on without them.

Include small print too, if possible.

M1

[Louise123]

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

Hi, I have been informed by another friend who lives close by that there are lots of signs and cameras and he's surprised I never saw them. I think I might be struggling with this appeal!

[mystery1]

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

I think we'll win.

:okay:

M1

[Louise123]

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

My friend said they will try and get a photo of a sign next time they go to Asda, I'm not holding my breath that it'll be anytime soon. Do you think I should go ahead with the appeal with out the photo or hold out for them to send me a one?

[mystery1]

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

http://www.parkingcowboys.co.uk/popla-code-checker/

What is the last date for your appeal ?

M1

[Louise123]

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

12th Jan

[Louise123]

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

Please see attached photo

[Louise123]

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

It's say in the small print ' need longer than 2 hours just ask customer services and something about if you are disabled.

[Louise123]

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

'Site is managed by both ANPR cameras and a parking attendant.'

[mystery1]

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

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 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 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 entitled to be in but overstayed. Neither is it commercially justified because it would make no sense. 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.




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 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 free 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.








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 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/71a4eb1b5de2...essKeyId=4CB8F 2392A09CF228A46&disposition=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.




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, 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.








M1

[Louise123]

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

Thank you M1, I'm in the process of completing the POPLA online appeal form, there are four tick box options to choose from, I assume the 'I am not liable' option?


Why are you appealing? (Please tick)


I was not improperly parked.


The parking charge (ticket) exceeded the appropriate amount.


The vehicle was stolen.


I am not liable for the parking charge.

[mystery1]

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

Don't think it matters really. Pick any/all that apply.

M1

[Louise123]

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

Thank you, do I need to submit any evidence to support the appeal?

[mystery1]

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

Nope. It's their claim to prove. If, when you get their evidence pack something needs rebutted then you may need to submit evidence.

M1