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Parking at Ship Inn Horncastle
billoddy
post Thu, 9 Aug 2018 - 12:43
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Hello
I as registered keeper have been issued with a parking charge notice from Smart parking. This was a complete surprise as the ticket was for 1 hour and the driver left after 16 minutes. They claim on the notice that "by either not purchasing the appropriate parking time
or by remaining at the car park longer than permitted" the charge is now payable. In a fit of pique (and incorrectly) I went online and used their system to say that "I contest the charge as a ticket was purchased for the time spent in the car park" At no point did I mention
Who bought it. I can only assume that the entered registration number was incorrect? What should be my next step? Please keep any advice really simple! I've checked out the money saving expert website, are his templates any good? I'd really appreciate some sound advice.
Thank you

This post has been edited by billoddy: Thu, 9 Aug 2018 - 13:03
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post Thu, 9 Aug 2018 - 12:43
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billoddy
post Mon, 10 Sep 2018 - 09:40
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The letter was posted on the 4th second class and it was received on the 6th
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ostell
post Mon, 10 Sep 2018 - 12:06
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Well that original PCN did not comply with the requirements of POFA and so the keeper cannot be held liable. You point out all the errors to POPLA and POPLA should find in your favour.

Here's POFA Go through paragraph 9 and see what isd missing and tell POPLA about it. I presume there is nothing on the back.
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billoddy
post Mon, 10 Sep 2018 - 12:37
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No there was nothing on the back. Paragraph 9 seems to have a lot in there! I'm not sure what part of it they have not complied with and seems to be very legalese.

This post has been edited by billoddy: Tue, 11 Sep 2018 - 07:32
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cabbyman
post Mon, 10 Sep 2018 - 12:40
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It's in English. Tick off each point they comply with. Put a 'x' against each point they miss.

You will need to be reading threads outside of this one, particularly Smart Parking, and build a modicum of understanding about how the process works. YOU need to do some work!


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billoddy
post Fri, 14 Sep 2018 - 07:32
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Ok so this is my draft for POPLA, hoping it will catch Smartparking on POFA? Any help greatly appreciated.


POPLA CODE: xxxx

On xxxx I received a Notice to Owner from SmartParking alleging a parking offence on xxxx, and demanding a charge to be paid. My appeal to the Operator, SmartParking was rejected on xxxx. I am the registered keeper of vehicle registration xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:




1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3) Insufficient signage
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5) Failure to show evidence of reliable ANPR system


1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 9, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:


6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)(b)has given a notice to keeper in accordance with paragraph 9.

The NTK must have been delivered to the registered keepers address within the relevant period which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9 they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescripted warning about 'keeper liability' were not properly given.

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot; they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability: There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:



In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:




This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one. This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.'' From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself. The letters seem to be no larger than .40 font size going by this guide:


As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:



''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1 to 2 inch letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3 inches or even larger.''


''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:


This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

SmartParking signage at the Ship Inn car park states; Motorists must enter their full, correct vehicle registration when using the payment machine; (figure 1). This only refers to the pay machines installed in the car park. Signage should make clear reference to correctly entering their registration plate in the phone and pay app also.



4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement

5) Failure to show evidence of reliable ANPR system

Also SmartParking have provided no evidence that the ANPR system is reliable. The 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 the 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 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.
SmartParking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

A correctly calibrated ANPR system should be able to know if a registration plate being entered by the customer using the car park has in fact entered the car park. In this case a payment was made for a car registration incorrectly entered and therefore never existed on the ANPR system however a payment for the correct amount covering the period stayed was still accepted. In these circumstances when a number plate entered does not match up with the ANPR system a warning should be generated by the system. A simple character recognition software or even a human being could then attempt to match the number plate recorded by the ANPR to the most closely matching number plate registered and paid for by the customer. To ensure accuracy of this simple yet effective measure the time the customer entered the car park could be correlated with the time the payment was made.

I would like to draw your attention to the following case where a motorist received a parking ticket as a result of them entering their registration number in wrong

Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

The judge ruled - that the case hinged on whether the motorist had paid or not, and that the burden of proof lay with Park With Ease to show that the motorist hadn't. As he felt they hadn't been able to show that without any doubt the claim was dismissed.
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ostell
post Fri, 14 Sep 2018 - 08:12
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For POPLA and POFA then you must specify the actual section that is not complied with. POPLA will not look. State the date of the alleged breach and the date the NTK received and the number of days it took. Treat POPLA as 5 year old who needs everything explained in simple terms.

You could add that as the number entered di not match with any of the cars known to be in the car park then accepting the money meant that the parking were agreeing by acceptance to a variation of their terms and conditions.
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billoddy
post Fri, 14 Sep 2018 - 11:58
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So if I was to add the following as the start of paragraph 1?

1) The PCN fails to comply with the requirements of Schedule 4 of The Protection of Freedoms Act 2012, namely, but not limited to, 9 (2) (f), failing to give the keeper notice of possible liability. I cannot have any liability in this matter. I have no requirement in law to provide details of the driver.
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ostell
post Fri, 14 Sep 2018 - 12:12
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You need to list ALL the failures
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nosferatu1001
post Sun, 16 Sep 2018 - 10:35
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Indeed, list all. You cannot add more failures later.
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