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Smart Parking Fistral beach Newquay, Entred Car Park but could not find a space
smartunparked
post Tue, 12 Sep 2017 - 22:10
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I had an appeal/complaint rejected by Smart Parking after entering the car park and was simply unable to find a space. Based on looking here and elsewhere this is not uncommon although this is the fist time I have come across it.
I have therefore produced an appeal for POPLA but am not sure if it is too lengthy as my previous one to SP was very concise. Thus I wondered if anyone could have a look through this very rough draft in case I am missing something or shooting myself in the foot by accident.


Dear Sir/Madam

Upon returning home from a second visit to Newquay I received communication from a company trading as Smart Parking Ltd stating that I was parking on private land for 13 minutes on the date in question. The letter was also accompanied by photograph of my car including registration plates and an alleged entry and exit times all other details about the car was marked as unknown. I was uncertain of the entry and exit times myself as I was more concerned with beach safety as there were a lot of beach users in the area.

As I had not parked I sent a complaint as opposed to an appeal stating that I had not parked and that I was simply waiting for a suitable space to become available. I was unhappy to receive this as I had not used the car park in question (Fistral Beach Newquay) and thus wrote it as a complaint and stated that should they wish to pursue the matter they should only contact me with court documentations. Since completing the online form I did not hear anything in regards to this until 11/9/2017 (dated 7 September 2017), when I received another letter from Smart Parking as opposed to court documents.

The letter commences by stating “Having considered your appeal in detail we have decided to uphold the PCN as we believe the that it was correctly issued in accordance with the terms and conditions. As your appeal was received within the initial discounted period we have extended the discounted period until 22/09/2017.”

Firstly, the letter implies that multiple individuals have looked at the “appeal” and made a judgement. However, the letter was not intended as an appeal but as a complaint due to the fact that I did nothing wrong. Yet none of my circumstances are addressed thus I can only deduce that after a set amount of time and automatic mail merge letter is created which simply fills in times, dates and place without any human consideration. My suspicions were confirmed after having to research such issues and aside from mail merge details from data capture the letter is a generic template. I therefore put to the company that my details were not looked into at all.

The second paragraph states that the car park in question is an Automatic Number Plate Recognition (ANPR) system monitored carpark and that every possible entry and exit is managed by an entry and exit camera which as it goes on to state “takes an infra red image as the car passes by.”

This is the obvious fault in the system as with all system non are infallible but if the site had more cameras over parked cars” or a human back up then cross referencing can take place to minimise such issues. I can only advise that smart parking look into such amendments

The reality of the situation was that I was meeting my nephew (who has some mobility issues) with the intention of spending some time on the beach after unloading the surf equipment in the boot of my car. Instead after spending a while I left with my nephew and his surf equipment to attend another beach where suitable parking was plentiful because there was no suitable parking space available. Had suitable parking been available the car would have been parked as it is in other car parks and as most people do by reading the signage and paying at the meter after entering details unless I did not agree with the terms of the perceived contract on the signage in which case I would have left and yet still received the PCN.

However, the fact remains that no parking took place hence it was not possible to enter into as the positioning of signage made it not possible to read comprehend and adhere or reject whilst in a vehicle that could not effectively be parked safely without being obstructive. Similarly, the signage is too wordy to read whilst moving the car thus the positioning of signage is not fully readable without parking.

The third paragraph of the letter dated 7 September 2017 states that “we can confirm that no payment was made against your full correct registration mark K*****. As your vehicle remained on site for 13 minutes we can confirm the PCN was issued correctly.” Again no payment could have been made as described above. Additionally, 13 minutes is not a reasonable grace time to find a space in such car parks. For instance, some car parks offer 20 minutes or more.

The fourth paragraph states that “it is the responsibility of the driver to ensure they purchase a valid ticket for the correct VRM and cover the full stay when using the car park. “To this using the car park implies parking in order to agree the terms and obtain a ticket. As previously stated I did not park the car and hence the car park was not used as I was simply driving around the busy car park.

However, the paragraph continues to state “Also by parking, waiting or otherwise remaining in the car park you agree to comply with these terms and conditions. As you have failed to do this, we have no option but to uphold the Parking Charge Notice. “ By remaining in the car park although the car park is marked as a road it appears that Smart Parking ignore the concept of the feasibility of obtaining a ticket and at the risk of sounding tautological the do not confront the fact that without parking in a space a ticket cannot be obtained at this car park as that would as previously stated mean leaving the vehicle unattended and causing an obstruction and the terms and conditions cannot be read without leaving the vehicle hence this statement is ridiculous. Had Smart Parking wanted a system that charges in this manner a barrier system with terms and conditions should have been placed at the entrance. No such barrier or system to obtain a ticket whilst in the car is available at this car park rendering the terms and conditions unreasonable. Smart Parking offers no evidence of my car parked and simply relies on this unreasonable clause that they applied retrospectively as it was not feasible to read a contract for reasons previously stated.

The letter continues to state that “you have reached the end of the appeals process” and references your organisation although it states if I do contact yourselves the early payment period will have expired which appears deliberate. It continues by reference the Ombudsman Services but then states that they choose not to use them and the only method given if you have a problem paying is a phone number.

Finally, a number of methods are given to pay however based on the details above I will not pay and have opted to contact yourselves in relation to this matter.

Furthermore the practice of unreasonable parking terms appears to be very common in both this and other car parks for instance. On 17th March 2014 a judgment was made in court for the same issues at the same car park. As a regular visitor to Newquay I can confirm that no major changes have taken place to the physical layout of the car park or cars in general meaning that the circumstances of the details given in 2014 in my case are the same. The only difference is that the landowner now uses Smart Parking and the time that was spent looking for a suitable place to park.

The prior company offered a 20 minute grace period. My car was only present according to Smart Parking’s records for 13 minutes! There has to be reasonable time to park read the offer, understand, consider and accept or reject as previously mentioned. Again this was not possible.

In the case referred to the defendant was alleged to have overstayed by 31 minutes. The judgment ruled in the favour of the defendant. In light of this I am shocked that Smart Parking have the authority to operate the car park and I request to see a copy of the contract between the land owner and Smart Parking.

[indent][/indent]Parking Eye Ltd 40 Eaton Ave and Mrs X Defendant Miss Vispond on behalf of the Claimant Mrs X , Litigant-in-person assisted by Mr X. Judgment date: 17th March 2014 Judgment as approved by the Court The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038. Available at: http://nebula.wsimg.com/c289944f81b4afb375...p;alloworigin=1


Underneath is a hyperlink which links to a google earth position of the area of the parking area where I intended to park but was unable to as in the above case the wording is still difficult to see especially in a busy car park and you will also note it is not possible to obtain a ticket from the machine whilst in a car. Neither is possible to easily notice camera or their purpose on a busy day as I did not notice any in the whole parking area.

https://www.google.co.uk/maps/@50.418386,-5...3312!8i6656

This video was taken outside of the summer period by someone’s but highlights how busy the car park is. Please forward to 2:30 https://www.youtube.com/watch?v=swJ_elscsJM

Furthermore, if I may refer you back to Smart Parking’s statement in regards to “parking or otherwise remaining in the car park you agree to comply….” Not only was this unreasonable and not accessible at the time but as Smart Parking should be aware it was judged that waiting to park did not count as time parked.
3JD08399 ParkingEye v Ms X. Altrincham 17/03/2014,


Thus in summary I refuter the charge on the following grounds
1 No parking took place and hence no contract was made.
2 The rules on waiting/looking to park are unfair as demonstrated above
3 The signage was inadequate to fully read and accept or reject whilst still in a vehicle.
4 My complaint to Smart Parking was not dealt with appropriately and no evidence of actual parking could be produced as it did not take place.


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post Tue, 12 Sep 2017 - 22:10
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ostell
post Wed, 13 Sep 2017 - 06:44
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You've already got the info

This post has been edited by ostell: Wed, 13 Sep 2017 - 06:46
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nosferatu1001
post Wed, 13 Sep 2017 - 08:36
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POPLA appeals weigh in at over 4000 words, so no its actually short.
DId you reveal the drivers identity? If so then carry on, however SMART dont use POFA so they cannot hold th keeper liable.
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Jlc
post Wed, 13 Sep 2017 - 08:47
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Unfortunately, POPLA only really look at whether the PCN was correctly issued.

If Smart show them the T+C's and the evidence of the car then they are likely to conclude it was correctly issue and you are liable.

Bizarre but true. POPLA do not entertain legal discussions any more and see the court system as the ultimate arbiter. There is a very good argument of no contract here.

Fortunately, Smart don't go to court currently although they have 6 years to hoover up. But changes to the pre-court protocol are coming soon which will make it harder for roboclaims.

Any Judge should see this for what it is but it is unlikely they pursue this far. It appears you've admitted being the driver as they not do rely on the Protection of Freedoms Act so they are easy to beat on a technicality at POPLA but still play the rejection game because they can.

This post has been edited by Jlc: Wed, 13 Sep 2017 - 08:47


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Wed, 13 Sep 2017 - 08:52
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I disagree with JLC on some parts

POPLA DO look at legality, but only as a byproduct of the BPA CoP. So you attack landowner contract not being in place - if SMART dont produce it, then thety cannto show they met the BPA CoP which requires one.
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Jlc
post Wed, 13 Sep 2017 - 08:57
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Ok, yes - I was more referring to arguments around frustration of contract and the like.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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