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RobAllison
Hi All
I recently had a holiday to Newquay and we had a Morning at Fistral Beach which is a pay and display car park. On returning home there was a PCN from
Smart Parking for £100 for overstaying in the Fistal Beach car park. The ANPR photos show entry at 09:16 and exit at 13:34. Now i paid for a 3 hour ticket on arrival,
this was timed 09:21. We decided to stay and have lunch as Rick Stein's fish place (the fish and chips were crap) So i put another £2 in the meter which was more than the
required £1.80 for the extra hour. We finished lunch and headed off. The car park was full with cars parked all over, so much so that it took some time to try and get out from
the parking spot and attempt to exit the car park. The ANPR has our exit time as 13:34. Now going but the ticket i'm 7 minuets over the stay.
Where do i stand. I have no pictures of how bad the car park was to get out from and all the notices refer to parking charges not charges for being on the land.

I am about to fill out the appeal form on there site what do i need to put in it. I have already phoned them and they said you pay to be on the site not parking??
I also asked why they dont police the area so people can drive out without having to wait for the roads to clear because of all the bad parking and blocking of the road.

Thanks
Rob
freddy1
do not ring them again , they tell lies

grace periods:

13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Gan
That's not the reason for the parking notice

Smart operates a perverse tariff at this car park to catch motorists that want to stay an extra hour
As far as they're concerned you've parked for three hours and must extend it to five hours.
The extra payment required is therefore £4

Appeal on the grounds of the grace period and let themselves dig a hole with their response

When you do the real appeal to POPLA, raise the issue of the confusing signs
Smart will then fold

Don't identify yourself as the driver
Smart's contract with the golf club doesn't allow them to pursue the registered keeper so they can't use the Protection of Freedoms Act to pursue the keeper if they don't know who was driving
Make sure you demand that they produce it at POPLA

NEVER telephone a parking company
Returning the misery
Gan just for clarification, the Golf Club Car Park is located close to Fistral Beach Car Park, but they are separate entities. And different PPC's https://www.youtube.com/watch?v=swJ_elscsJM...eature=youtu.be



and of course, circling isn't parking.....

Case No: 3JD08399

IN THE ALTRINCHAM COUNTY COURT

Trafford Courthouse

Ashton Lane

Sale

Cheshire

M33 7WX

BEFORE:

DISTRICT JUDGE HAYES

BETWEEN:

Parking Eye Ltd 40 Eaton Ave Claimant

- and -

Mrs Nicola Hotchin Defendant

Miss Vipond on behalf of the Claimant

Mrs Hotchin, Litigant-in-person assisted by Mr Hotchin

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

No of folios in transcript 40 No of words in transcript 2,830

District Judge Hayes:

1. This is a case brought by Parking Eye Ltd -v- Mrs Nicola Hotchin. It is a claim that was issued on the 30th September 2013 in the sum of £100, plus court fees

and solicitors’ costs, and relates to an allegation that Mrs Hotchin had parked without displaying a ticket at a car park in Newquay, Cornwall, on the 30th May 2013.

2. It was said in the particulars of claim that the car entered the car park and left it

some time later without putting a pay and display ticket on. The defence, dated the 22nd October 2013 disputed the claim and referred to a number of basis for the defence.

3. Whilst admitting that Mrs Hotchin was the owner of the vehicle concerned, which had been photographed, it was said that she was unable to admit or deny the precise time she was parked in the car park as she had no recollection of this, and went on to deal with a number of legal issues in terms of whether or not there was a contract with the Claimant, whether the Claimant was the proper party to these proceedings in terms of the issue of land owner, and even if there was deemed to be a contract whether the amount was a penalty or a genuine pre-estimate of loss, and then therefore properly recoverable.

4. Both parties have, subsequent to directions being given by the Court and in fact

prior to that in the Claimants’ case, filed numerous documents with the Court. There was a reply to defence lodged which is not a document that is required by the Court Rules but is an optional one, in any event it was not dated or signed, but was later incorporated into the witness evidence of the Claimants.

5. In terms of the evidence on the court file the Claimants have filed a statement of Jonathan Langham, of the 31st January 2014 and also the 30th January 2014, one

being in response to Mrs Hotchin’s witness statement, and also a statement of John Bryant, of the 3rd December 2013. Mrs Hotchin has filed her witness statement, of the 28th January 2014, and as I have said, both parties have lodged with those statements a considerable number of documents and submissions in relation to the matters before the Court today.

6. It has to be said a large number of them are not at all relevant, but perhaps the

Defendants have fallen into the trap that many do, of having thrown absolutely everything they possibly can at this case, and many of the submissions the Court sees on a regular basis in other cases of this nature.

7. What I must do today, of course, is not focus on general principles, but on the facts of this case and in that regard the Claimants were represented by Miss Vipond today, as an agent, and Mrs Hotchin attended and was assisted and represented, in terms of a lay representative, by her husband.

8. I heard submissions from Mr and Mrs Hotchin and evidence from Mrs Hotchin in respect of some questions that I asked her. I have considered the witness statements filed by both parties, and particularly the Claimants’, although of

course none of their witnesses are here today to give any further evidence or be cross-examined.

9. I set out at the outset of today that the burden of proof to prove their case is upon

the Claimant, and the burden is on a balance of probabilities.

10. The Claimants’ case is very straightforward. They pursue Mrs Hotchin in respect of a charge imposed for entering into a car park and staying within the confines of that car park for 31 minutes before leaving on the day in question, and say that no ticket was purchased. They base this on the fact that the machine requires customers to enter a registration number when purchasing a ticket.

11. The Defendant’s case was clarified today as being essentially on three basis, first that Parking Eye had no right to bring this claim and to be Claimant in these proceedings, that that lies with the land owner. Secondly, that if that fails the terms and conditions the Claimants rely on were not incorporated into a contract with Mrs Hotchin, and thirdly, if they were, that in any event then the charge being pursued is not a genuine pre-estimate of loss but a penalty and should not be enforceable.

12. I dealt with each of those in turn. I have already given an indication that I was satisfied that on the basis of contract that was exhibited to the documents between Parking Eye and the leaseholder of the land, that there was clearly a contractual relationship between them and that this entitled Parking Eye to deal with the parking charges and therefore to pursue this claim.

13. Mr Bryant’s statement simply dealt with that issue and I did not see that as being controversial in this case. I am therefore satisfied that Parking Eye could bring this case against Mrs Hotchin.

14. The second issue was the most controversial in terms of whether terms and conditions that the Claimants say were part of the contract were incorporated into a contract with Mrs Hotchin.

15. The Defendant’s position in respect of the events of the day were, as said in their

Defence, that simply Mrs Hotchin was unable to admit or deny the precise time she was parked in Fistral Beach as she has no recollection of this. In the witness statement of the 28th January she says at paragraph 1:

“I am defending the case on the following grounds, it is unlikely on the balance of probabilities that my vehicle was parked on the date of the event and Parking Eye have failed to offer evidence to the contrary.”

16. Mrs Hotchin’s case today started on the basis that it was said that the position was that they cannot say for sure whether she was parked or circling the car park, and that then became a more definite assertion; and that if they were circling the car park, as ‘we believe we did’ it is impossible to read the signage. The Defendant’s case, therefore, is that certainly as of the evidence today, they were circling the car park.

17. On re-reading Mrs Hotchin’s witness statement I see at paragraph 8 she dealt with

the issue of the busy-ness of the car park, and said:

“It is likely that my vehicle was not parked at all, but on this occasion it is likely that my vehicle was driving around the car park with the driver looking for a suitable spot to park, prior to leaving.”

Perhaps it is unfair to say, therefore, that the first occasion upon which the issue of circling was raised today, it does appear to have been raised as a likelihood, I put it no stronger than that, in the witness statement of Mrs Hotchin, which is dated the 28th January.

18. There are other references in that witness statement to the busyness of that car park in terms of, particularly, a day in August. I am not sure that necessarily assists me in ascertaining whether or not Mrs Hotchin parked on this occasion.

19. Of course it is the case that the Claimant cannot offer indisputable evidence that the Defendant did park because all they are able to offer in terms of evidence is the time when the car entered the car park and when the car left the car park, and they are 31 minutes apart and although Mr Hotchin attempted to raise some issue with regard to the reliability of that evidence none of that was put in the Defence and I accept that that was the period that the car was within the boundaries of the car park.

20. The Defendants also referred to there being a one hour free period at other times of the year, and suggested that this applied on this occasion as this would be classed as spring. It was pointed out by Miss Vipond, quite fairly, that this was not an issue raised in the defence.

21. Mr Langham’s statement deals with the issue of the different tariffs at the different times of year, and in his statement indicates that Parking Eye’s signage at this site alternates between summer and winter tariffs. During winter tariffs motorists are allowed one hour free parking. The signage is not different in spring or autumn, and at this time summer tariffs were in place. There is no evidence that suggests otherwise and it seems likely that in late May that would be classed as "summer".

22. The Defendant made a point that the signage is not clear and that the small writing that is referred to as the terms and conditions may not be visible as one is in one’s car, it seems to me that it is clear that one must pay for parking, and the Defendant herself, in her own witness statement, says that she was aware of parking charges locally and makes an appropriate allowance for that in her holiday budget. There is no suggestion by the Defendant that it was a free car park.

23. Reference was made to the provision of a grace period of 20 minutes. This is referred to in particular by the Defendant, in an excerpt from a local newspaper, and indeed it is also conceded by the Claimant that there is that grace period.

24. There is no evidence before me that this is brought to the attention of anybody visiting the site and certainly not on any of the signs that I have been referred to, and as I say, the only reference to it was in a newspaper article and in the statements that have been filed for the purposes of these proceedings.

25. This is perhaps particularly pertinent in this case, where the Defendants are said to have circled the car park, not to have parked, and to have left without parking within the 31 minutes.

26. It seems to me I must establish my position in respect of the Defendants’ evidence that they did not park, and circled the car park. Is it reasonable that Mrs Hotchin would circle for 31 minutes and then leave?

27. The Claimant, in response to her witness statement, in which it was asserted that

she thought it was likely that that had happened, says, and this is Mr Langham’s statement of the 30th:

“Parking Eye operates a fair and reasonable grace period that allows motorists to enter and exit the car park. Parking Eye considers it likely that the vehicle was parked. It is unlikely that the driver stayed within the car park for 31 minutes without parking.”

28. There is reference, to parking in the defence, and I think that is perhaps the only reference to parking, but that is made in respect of the Defendant being unable to admit or deny the precise time she was parked at the beach. She said she has no recollection of this. That case was on the basis, it seems to me, of the fact that she could not recall what happened on that occasion.

29. There is no way of the Claimant disputing whether or not the Defendant parked or not, and it seems to me that it is likely that the car park may well be busy and that it might be necessary to circle for some time before finding a space, and it seems to me that the provision of a grace period accepts that to some extent, that that might be necessary.

30. Is it reasonable to do that for 31 minutes and then leave? One might look at it the other way. Is it likely that having gone to the car park during Whit half term week to find a space that one would park and then leave within 31 minutes? It seems to be more likely that the 31 minutes were spent driving around the car park looking for a space, bearing in mind this was Whit half term in May and therefore, it seems to me, more likely to have been busy than on other occasions and I accept, therefore, what the Defendant says about that.

31. I accept, therefore, that the Defendant did not park. That is not the end of the matter because the Claimants say that even if they did not park they are still caught by the terms and conditions, and Mr Langham, in his statement, says at paragraph 6, this is his statement of the 31st January:

“Terms and conditions are clearly set out on the signage. Here it states ‘This is a paid parking car par, please enter full correct

vehicle registration into the payment machine when purchasing your ticket. Failure to comply with terms and conditions will result in a parking charge of £100’. We can confirm the signage was in place on the site at the date of the parking event, there were also various warning signs on site reminding motorists that ANPR cameras are in use and payment can be made at the end of stay.”

And paragraph 7:

“Once it had been confirmed the vehicle had broken the terms and conditions on the signage a fee paying application was made to DVLA.”

32. I have had referred to me numerous copies of the signage on that occasion and whilst I can see reference to what Mr Langham says on, I think it is sign 1(a), which says:

“By parking, waiting or otherwise remaining in the area”

That is in quite small writing at the bottom, as the terms and conditions.

33. As I have already indicated there can be no dispute this is a paying car park. It cannot be said that the signs are unclear in that regard, but would somebody circling the car park know that they were liable to pay by being in the car park for, as Mr Langham states, longer than 20 minutes? Well I have no evidence to suggest they would know that.

34. There is another sign, sign 1(e), which is the sign that says:

“An automatic number plate recognition system is operating on site for the purposes of managing the car park.”

The enlarged version of that provides in the small writing at the bottom:

“By parking in this car park”

It does not refer to waiting or otherwise remaining in this car park.

35. It seems to me a customer who enters that car park, cannot find a space and leaves the car park is not aware that if they are doing that for more than 20 minutes they are liable to a charge. It seems to me that the signage makes it clear that if you park you are liable to pay a charge.

36. The difficulty for the Claimant here is they cannot prove whether this car was

parked or not and I have got to consider the matter on the balance of probabilities.

37. On that balance of probabilities, as I have indicated, I am satisfied the Defendant was not parked and I am not satisfied that it was clear to the Defendants that by parking or entering or remaining within the area covered by Parking Eye Ltd they

were liable for a charge, that the signage does not make that clear in my view unless one gets out of the car, walks up to it, by which point it seems to me one would be parked, and even if this was not the case, even if there were signs saying that, I cannot see that a charge for driving around a car park can in any way be a genuine pre-estimate of loss as opposed to actually parking.

38. For those reasons, in this case, I find that the claim has failed and the Claimant has not satisfied me. As I say every case is dealt with on its merits and the vast majority of the documents submitted have been completely irrelevant and unhelpful in this case, it turns on the evidence here and that particular piece of evidence in this case was that whether or not the Defendant was parked. It seems to me that that was fundamental here and was raised in the statement of the end of January.

39. Those are my reasons, I therefore dismiss this claim.
RobAllison
Right then done the appeal and quoted the section 13 guidance and the required 10 mins grace time and how difficult it is to get out of the car park on a peak day
Gan
The land is owned by the golf club

The grace period has nothing to do with the parking notice

Having checked the tariffs again, your £1-80 + the 20p meant that you had paid a total of £7 and were entitled to stay until 6.30 pm

A more likely explanation is a mistake entering a registration number when buying one of the tickets
RobAllison
The reg numbers on both tickets are correct and the same as there ANPR picked up. Yes i did over pay the second ticket so in theory i should have had longer
than the time they said i was there for.
In total i paid £7 which is the all day price, but they say it should be paid in one transaction only. As i made 2 then that was not the same.
But there sign does not say anywhere that this is the case i.e. "Slingle transactions only and not cumulative".

After all it says "Smart Parking" on there signs
Jlc
Common sense should dictate that you've paid the 'full' amount. However, with PPC's such common sense isn't always in their minds as they are trying to grab large sums of cash.

There's a discussion around how many contracts were formed. Whilst the (total) consideration paid covers a whole day's parking it could be argued that 1 contract was completed and another was breached. Likewise there was only 1 parking event - but is a contract formed by the payment or the parking?

On the appeal I'd stick to the strong points.

The driver must not be revealed - they no longer bother with PoFA and 'keeper liability' so they often cancel on this point alone. However, the total tariff paid covers a whole day so there was no loss.

They don't currently issue court claims and this definitely isn't their strongest case - but they have 6 years to pursue and there's always a chance it will end up with one of the bottom-feeding 'debt purchasers' who may issue a speculative claim. It's always easier to resolve the matter early.
Gan
The signs say that you can top up before leaving

If you initially pay for two hours and top up by an hour, they regard it as one transaction because 2 + 1 hours is cheaper than 3 hours and you've therefore underpaid
They can't have it both ways

Appeal it to POPLA that you followed the instructions on the sign and paid for all day

Tell POPLA that if the signs are unclear, it must follow the contra proferentem rule :
If a contract can be interpreted in more than one way, it must be interpreted in the way that is least favourable to the person that wrote it

POPLA will "No Contest" it and save the £27 fee for a decision, having wasted your time

POPLA is getting fed up with this abuse of their system

They could put a stop to it tomorrow if the parking company was invoiced as soon as the code was used - even better if a "No contest" resulted in the payment passing to the motorist in compensation

Jlc
QUOTE (Gan @ Fri, 5 Aug 2016 - 11:04) *
The signs say that you can top up before leaving

Do we know what the signs currently say?

From a scan some say 'You can purchase additional time (if required) at the payment machines or by phone before leaving', others 'You can purchase additional time, if required at the payment machines'. However, the 'Summer' one seems to have lost this 'concession'?
VolvoXC90
QUOTE (RobAllison @ Wed, 3 Aug 2016 - 00:48) *
Hi All
I recently had a holiday to Newquay and we had a Morning at Fistral Beach which is a pay and display car park. On returning home there was a PCN from
Smart Parking for £100 for overstaying in the Fistal Beach car park. The ANPR photos show entry at 09:16 and exit at 13:34. Now i paid for a 3 hour ticket on arrival,
this was timed 09:21. We decided to stay and have lunch as Rick Stein's fish place (the fish and chips were crap) So i put another £2 in the meter which was more than the
required £1.80 for the extra hour. We finished lunch and headed off. The car park was full with cars parked all over, so much so that it took some time to try and get out from
the parking spot and attempt to exit the car park. The ANPR has our exit time as 13:34. Now going but the ticket i'm 7 minuets over the stay.
Where do i stand. I have no pictures of how bad the car park was to get out from and all the notices refer to parking charges not charges for being on the land.

I am about to fill out the appeal form on there site what do i need to put in it. I have already phoned them and they said you pay to be on the site not parking??
I also asked why they dont police the area so people can drive out without having to wait for the roads to clear because of all the bad parking and blocking of the road.

Thanks
Rob


Hi Rob,

Came here to find out about a very similar case. We parked in this car park the 3rd August. The ANPR shows us arriving at 13.08 and we didn't buy a ticket til 13.34 (no spaces) where we paid £5 which took our ticket up to 16.34.

The ANPR picture shows us leaving the car park at 16.38 so 4 minutes late, I'm sure it took that long to wind our way back up the hill past the hordes of people heading back to the car with buggies and surf boards.

Will be interested to hear how you get on!

Rachel
RobAllison
Rachel, This is my understanding of how they run there system.
As you enter the car park the ANPR takes your number and time of entry. Then as you exit it takes your time.
The time on your parking ticket then needs to cover this time, not the time you park. The small print seems to indicate this
but it is unclear. So you entered at 13:08 and left at 16:38. You then need a ticket to 3 1/2 hours for the stay, in there eyes.

The requirement for them is to follow the British Parking Association Code of Practice. Within that is the grace period section

13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.

13.4 now states a minimum of 10 minuets


The bit that gets me is everything refers to "parking".. Now as they dont want to manage the parking with a warden (They say they do by the way) The ANPR system is used. This is a photo of you driving not parked.
So there are no photos of any parking offence, just entering and leaving the area. I'm not sure how all this stands in law ??

Anyway i am waiting to hear back from them.
Umkomaas
QUOTE (VolvoXC90 @ Fri, 12 Aug 2016 - 18:54) *
QUOTE (RobAllison @ Wed, 3 Aug 2016 - 00:48) *
Hi All
I recently had a holiday to Newquay and we had a Morning at Fistral Beach which is a pay and display car park. On returning home there was a PCN from
Smart Parking for £100 for overstaying in the Fistal Beach car park. The ANPR photos show entry at 09:16 and exit at 13:34. Now i paid for a 3 hour ticket on arrival,
this was timed 09:21. We decided to stay and have lunch as Rick Stein's fish place (the fish and chips were crap) So i put another £2 in the meter which was more than the
required £1.80 for the extra hour. We finished lunch and headed off. The car park was full with cars parked all over, so much so that it took some time to try and get out from
the parking spot and attempt to exit the car park. The ANPR has our exit time as 13:34. Now going but the ticket i'm 7 minuets over the stay.
Where do i stand. I have no pictures of how bad the car park was to get out from and all the notices refer to parking charges not charges for being on the land.

I am about to fill out the appeal form on there site what do i need to put in it. I have already phoned them and they said you pay to be on the site not parking??
I also asked why they dont police the area so people can drive out without having to wait for the roads to clear because of all the bad parking and blocking of the road.

Thanks
Rob


Hi Rob,

Came here to find out about a very similar case. We parked in this car park the 3rd August. The ANPR shows us arriving at 13.08 and we didn't buy a ticket til 13.34 (no spaces) where we paid £5 which took our ticket up to 16.34.

The ANPR picture shows us leaving the car park at 16.38 so 4 minutes late, I'm sure it took that long to wind our way back up the hill past the hordes of people heading back to the car with buggies and surf boards.

Will be interested to hear how you get on!

Rachel

Rachel. While watching how Rob's case progresses, you need to be getting on with dealing with yours. You only have a small window of opportunity to appeal this and get to the POPLA stage, otherwise your prospects of killing this off become significantly more difficult for you. ParkingEye, the most litigious PPC in the country, sue 30,000 motorists every year in the county court.

If you miss the deadlines for appeal, you could well be dealing with court papers coming through your letterbox in the next few weeks. The job then becomes much harder. A 'do nothing' strategy is not recommended.
Gan
A couple of lines that I've started using at POPLA

Their signs do not make clear that their ANPR calculates the stay from the entry into the area to the exit and not the ordinary understanding that it includes only the period parked.
The Consumer Rights Act 2015 S.69 states that when a notice can have alternative meanings, the one most favourable to the consumer is to prevail
Some other members of their trade association make the grace period clear on signs and there is nothing to prevent **** doing likewise
Lynnzer
Waiting isn't parking.
Get this into your defence stuff.
Returning the misery
Still a bit confused over which car park still.

If you post something on the "Newer Newquay" facebook page, there will be a whole host of people who will photograph the signs for you.
RobAllison
Just got this. Now what



SchoolRunMum
POPLA of course, where registered keeper appeals v Smart Parking, win.

Search this forum and MSE for 'Smart POPLA' to find the most recent examples to crib from. There is no template but copying from recent ones is the same thing, as long as you make it suit your case. Show us your hybrid version for critique, you have 28 days.
nosferatu1001
Rejection wasnt unexpected. POPLA appeal smile.gif
RobAllison
Just wanted to know if there signage is misleading. As they state parking charges, yet they quote site access?



hoohoo
Their rejection states you have paid for £240 minutes (4 hours)

But you paid £5 + £2 = £7 which is enough for all day parking.

A slam dunk at POIPLA, surely.

SchoolRunMum
Yes, good point hoohoo. The sign does not stipulate how the £7 has to be paid and it was paid before the car left. So there was no contravention of the terms as stated on the sign = £7 was paid in full. There is not even any ambiguity here, there was no underpayment.

You can add that point (padded out a bit, without saying who was driving) to the usual stuff you will find on MSE and here when you search 'Smart POPLA'). Find one that also covers 'BPA Grace periods', crib from the usual points and show us your hybrid draft POPLA appeal.
RobAllison
I'm struggling with sorting the POPLA appeal, as to what needs to be in and is relevent. But i am not sure if i have spotted something about their photos.
With just a google street map view i noticed that the ANPR photo is from outside the area, as i believe. is this a point to add as the times on the site are then incorrect.
or is this the carpark also?? The entry photo can bee seen as to where it is due to the double yellow lines. The exit photo could be anywhere as it only show the car

The images are attached with arrows to show the double yellows

SchoolRunMum
QUOTE (RobAllison @ Wed, 31 Aug 2016 - 22:48) *
I'm struggling with sorting the POPLA appeal, as to what needs to be in and is relevant.


QUOTE
... the usual stuff you will find on MSE and here when you search 'Smart POPLA')



QUOTE
With just a google street map view i noticed that the ANPR photo is from outside the area, as i believe. is this a point to add as the times on the site are then incorrect.

Yes indeed, like point #3 of this Berry Head POPLA appeal where the photos also show the car outside, on the road:

http://forums.pepipoo.com/index.php?showtopic=107241

HTH
RobAllison
I have started to put together the beginning of the appeal. added in attached pdf
It seems its going to be long winded
Returning the misery
Don't know where these lot get off on the 10 minute bit.

As far as I could make out from our case "circling isn't parking" the law allows a time to enter the car park, read the terms and conditions, and then exit the car park, if one didn't then agree with those terms and conditions.

Took this vid last night, fairly late on in the evening. It would be dangerous to do all of the above in 10 minutes....

exiting Fistral
ostell
You did read post #4 didn't you? If you are driving how can you read the terms and conditions and therefore there can be no contract.
RobAllison
The BPA code of practice is pretty poor for the reading the terms bit. It's almost, drive past the sign and you are acknowledging the trend of the contract. But who I. There right mind would sign a contract without reading it?
So therefore is the reading time the parking companies or the customers?
Why don't they just set out these times clearly. The exit grace time has been at 10mins but the parking firms have got you as you go in.
southpaw82
It's an objective test. Would the reasonable man say that a contract had been formed? What the BPA writes in its guidelines is irrelevant to that.
ostell
The BPA CoP grace period is a MINIMUM time.
RobAllison
More added


Vehicle Registration Number: *******
PCN Reference TC********
POPLACODE: **********
Issued by Smart Parking Ltd.
I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Ltd in respect of an alleged breach of Parking Terms and Conditions at Fistral Beach Car Park on 23-07-2016. I confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).
I the registered keeper of vehicle registration ******* and I contend that I am not liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:
Background information:
The appellants are alleged to have entered onto the Fistral Beach car park, Newquay at 09:16:53 am on 23rd July 2016 as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
At 09:21am a Parking tariff was paid to the value of £5 as per receipt 1 (submitted as evidence). A further payment was made for £2 at 12:27pm to extend parking, receipt 2 (submitted as evidence).Totaling £7
The appellants returned to the vehicle within what they believed was the allotted time purchased for parking and moved from the marked parking bay. Due to the extremely busy car park, they were hindered by traffic and vehicles not parked within the allotted parking bays/marked areas. Appellants allegedly exited car park at 13:34:53pm as seen on Image 1, supplied from Smart Parking Ltd ANPR camera. (Submitted as evidence).
On 30-07-2016 a Parking Charge Notice was received from Smart Parking Ltd alleging a parking offence on 23-07-2016, a parking charge notice of £100 is due, letter 1(Submitted as evidence). The Parking charge Notice detailed an apparent contravention for an overstay at the car park Fistral Beach car park Newquay.
An appeal to the Operator, Smart Parking Ltd was lodged on 03-08-2016 via their online system. No acknowledgement was received from Smart Parking Ltd for the appeal. An appeal rejection letter was received on 25-08-2016 along with the POPLA appeal code, Letter 2(Submitted as evidence). SMART Parking Ltd refused allow the appeal on the grounds that: “Having checked our payment systems we can confirm a payment was made against vehicle registration ******* for a total duration 240 mins: However the vehicle was on site for 258 mins.” SMART parking Ltd claim in their Letter (submitted in evidence as Letter 2) that this was in excess of the time purchased and no further payments were made.
The appellants state that they are not liable for the parking charge issued by SMART Parking Ltd for the following reasons:
1. The Operator has failed to “acknowledge or reply to the appeal within 14 days of receiving it” are per: BPA code of practice 22.8. “You must acknowledge or reply to the appeal within 14 days of receiving it. If at first, you only acknowledge the appeal, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the appeal in writing”
The appeal rejection letter was dated 23-08-2016 with a postmark date 24-08-2016, and received by the keeper on 26-08-2016. Letter2 with Envelope, submitted as evidence.

2. No evidence or sufficient detail of contravention. The registered keeper cannot make an informed decision based on two photos of a vehicle entering and exiting a car park at different times with no clear explanation of the alleged contravention. The Operator is relying simply on images taken of a vehicle at first entry and then again on exit. These images show no evidence at all of actual parking, waiting or whether a vehicle remained in the car park for the duration or indeed as might have happened, exited and then returned within the recorded timescale. Image 1 (submitted as evidence) clearly shows double lines at the curb edge. The only markings relevant to this are outside the Fistral Beach car park area on the public highway and therefore the vehicle ******* has not entered the car park on the photo (Image 1, submitted as evidence) from Smart Parking Ltd ANPR system. The timing of entry is therefore not as the ANPR system indicates and cannot be used as a basis of entry into the site. For reference (Image 2, submitted as evidence), shows the entrance to Fistral Beach car park, viewed from the ANPR camera area. The double line at the curb edge have been arrowed for comparison to Image 1. The exit time also cannot be confirmed from the ANPR Image 1, as there is no reference as to the vehicles location. If as per the entry image, the vehicle is outside the car park the ANPR times are incorrect and the total time for the vehicle on the site that Smart Parking Ltd claim is also incorrect.

3. The ANPR system is neither reliable nor accurate
The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Smart Parking Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of supposedly entering and leaving Fistral Beach Car Park, it is vital that Smart Parking Ltd produces evidence in response to these points.
In addition to showing their maintenance records, I require Smart Parking Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle activating the system, 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 the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Smart Parking Ltd to strict proof to the contrary.
Further to this I also require Smart Parking Ltd to provide evidence that there is planning permission for the ANPR cameras used in this notice. It is a criminal offence to obtain data using illegal equipment

4. Smart Parking Ltd does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
I question Smart Parking Ltd authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Smart Parking Ltd legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own Fistral Beach or its car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles in the car park, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Smart Parking Ltd is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Smart Parking Ltd are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“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.''
I put Smart Parking Ltd to strict proof of compliance with all of the above requirements and provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
So, I contend that the contract - if this operator produces one – provides only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).






5. No contract was offered by the Operator as their signage does not comply with BPA Code of Practice. The appellants saw no adequately sized signage whilst driving into the car park. The driver was focused solely on controlling the vehicle’s speed and direction whilst observing both pedestrians and potential hazards (as advised by the Highway Code and fundamental to passing all UK driving theory and practical tests.) Any passengers were either unable to see any signs from their position in vehicle or due to their age could not read. Signs in the car park fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance to the car park. Thus the necessary elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking and not formed after the vehicle has already been parked.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the
question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver entered but was obvious when paying for parking at the end, and where the plaintiff had parked often before.
He said: “He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.” In addition, to suggest a breach of contract, SMART Parking Ltd is required to prove that the driver actually saw, read and accepted the terms, which they cannot do. The driver insists they saw no signs detailing these terms.
To comply with contract law and the BPA Code of Practice, SMART parking are required to use clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park, if they wish to try to establish a contract requiring payment in exchange for a parking space. See Image 3 pay machine used by the appellants during their visit. The signage states “Please see full terms and condition signage”. Yet no terms and condition signage are easily or clearly visible. This google street view image will show the 360 degree view from the pay machine, although from a high view point. https://goo.gl/maps/b78aMmrtvwr Please use this view show that it was not possible for the appellants to find the terms and condition signage. Images on google are 12 months old but still relevant as no changes have been made to the site, Image 3 was taken in august 2016
It is argued that there was no contract between SMART Parking Ltd and the appellants. If there had been a contract then it is suggested this contract would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999 Terms:
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. ''Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation."
On the basis of all the points raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999 and basic contract law.







RobAllison
Can anyone comment on this section for my appeal. Hopefully make sence


The Operator did not specify the reasonable period permitted for the appellants to find a space to park (sometimes referred to as a “Grace Period”) or give any reasonable period in which to leave the car park prior to taking the enforcement action. Due to the poor signage and unreasonable positioning of the “Terms and conditions Board” as referred to on the pay machine used. It was only when a resident supplied photographs after being contacted via Facebook that a photo of the supposed “Terms and conditions Board” was seen (Image4 submitted as evidence).The only time period stated is 10 minutes to leave if you do not agree their terms. Please not that this signage was not seen by the appellants due to its location shown in Image5 submitted as evidence.
In addition, the appellants make reference to the second letter sent by SMART parking Ltd (submitted in evidence as Letter 2) who claim the total duration that the appellants were in the car park was 258 minutes. Total duration on the site therefore is 18 mins longer than the time Smart parking Ltd claim was purchased. The appellant would therefore ask, how long is the “grace period”? And to what extent does this take into account: finding and selecting a parking space, time taken to purchase a ticket, and time taken to leave the car park? How does this differ for those with young children who may require slightly longer? And why is this, being such an important detail, not displayed on their signs? Is it unreasonable that it would take 9 minutes to find a parking space, unload 2 young children, read what parking information was available at the pay machine, and then make payment? On leaving is it unreasonable to take 9 minutes to exit an extremely busy and apparently uncontrolled site allowing vehicles to park anywhere causing slow exit from the car park.
Smart Parking Ltd state in their appeal rejection letter, Letter2 submitted as evidence. That there system shows a payment was made against the vehicle registration ****** for the total duration of 240 minutes. The appellants believed that the payments made met and exceeded the required Parking time. The parking tariffs listed on the signage do not state the manner in which payments had to be done. It was believed by the appellants that the additional £2 payment (Recipet2, submitted in evidence) purchased was added to the initial payment of £5 (Recipet1, submitted in evidence). This was due to another misleading sign on the site Image6, submitted in evidence. The appellants were of the opinion that the £7 paid was indeed the same as the all-day parking tariff Smart Parking Ltd state. Also if as Smart Parking Ltd appear to claim the only 240 minutes were purchased then the £2 payment made exceeded the 1 hour tariff which was £1.80. Nor the pay machine or signage stated exact money required or no change would be given therefore extra payment was made.
VolvoXC90
QUOTE (Umkomaas @ Sat, 13 Aug 2016 - 06:23) *
QUOTE (VolvoXC90 @ Fri, 12 Aug 2016 - 18:54) *
QUOTE (RobAllison @ Wed, 3 Aug 2016 - 00:48) *
Hi All
I recently had a holiday to Newquay and we had a Morning at Fistral Beach which is a pay and display car park. On returning home there was a PCN from
Smart Parking for £100 for overstaying in the Fistal Beach car park. The ANPR photos show entry at 09:16 and exit at 13:34. Now i paid for a 3 hour ticket on arrival,
this was timed 09:21. We decided to stay and have lunch as Rick Stein's fish place (the fish and chips were crap) So i put another £2 in the meter which was more than the
required £1.80 for the extra hour. We finished lunch and headed off. The car park was full with cars parked all over, so much so that it took some time to try and get out from
the parking spot and attempt to exit the car park. The ANPR has our exit time as 13:34. Now going but the ticket i'm 7 minuets over the stay.
Where do i stand. I have no pictures of how bad the car park was to get out from and all the notices refer to parking charges not charges for being on the land.

I am about to fill out the appeal form on there site what do i need to put in it. I have already phoned them and they said you pay to be on the site not parking??
I also asked why they dont police the area so people can drive out without having to wait for the roads to clear because of all the bad parking and blocking of the road.

Thanks
Rob


Hi Rob,

Came here to find out about a very similar case. We parked in this car park the 3rd August. The ANPR shows us arriving at 13.08 and we didn't buy a ticket til 13.34 (no spaces) where we paid £5 which took our ticket up to 16.34.

The ANPR picture shows us leaving the car park at 16.38 so 4 minutes late, I'm sure it took that long to wind our way back up the hill past the hordes of people heading back to the car with buggies and surf boards.

Will be interested to hear how you get on!

Rachel

Rachel. While watching how Rob's case progresses, you need to be getting on with dealing with yours. You only have a small window of opportunity to appeal this and get to the POPLA stage, otherwise your prospects of killing this off become significantly more difficult for you. ParkingEye, the most litigious PPC in the country, sue 30,000 motorists every year in the county court.

If you miss the deadlines for appeal, you could well be dealing with court papers coming through your letterbox in the next few weeks. The job then becomes much harder. A 'do nothing' strategy is not recommended.


I just saw an old email about this and thought I would I update to I contested my case via POPLA and won. No charges for me. Yay.
RobAllison
Although I won I did also hear that someone took the matter of illegally obtained information to the DVLA and I thought nice idea to do that too. Don't know if that is correct??
nosferatu1001
Make a complainmt to the ICO that your data was obtained and processed unlawfully, as no contravention occurred. They plainly shouldnt have obtained your data. If you get a complaint upheld, then you sue the parking company smile.gif
Lynnzer
QUOTE (RobAllison @ Wed, 19 Apr 2017 - 20:52) *
Although I won I did also hear that someone took the matter of illegally obtained information to the DVLA and I thought nice idea to do that too. Don't know if that is correct??

Claim for breach of the Data Protection Act for unlawfully accessing and/or using your personal details.
You will find more about this here.
Jlc
What was POPLA's reasoning?

Just because an appeal was upheld at POPLA doesn't necessarily mean they didn't have reasonable cause to access the DVLA to pursue the matter. (Especially here which is why an ICO opinion would be extremely helpful, or not)

Alternatively, you can send them a love letter with a 'threat' - they have been known to fold early. Here (For Fistral no less)
southpaw82
QUOTE (Jlc @ Thu, 20 Apr 2017 - 09:28) *
Just because an appeal was upheld at POPLA doesn't necessarily mean they didn't have reasonable cause to access the DVLA to pursue the matter. (Especially here which is why an ICO opinion would be extremely helpful, or not)

Exactly. Or are we saying every lost court case results in a DPA claim? Nobody has answered this point despite me asking about it for months.
Lynnzer
QUOTE (southpaw82 @ Thu, 20 Apr 2017 - 09:40) *
QUOTE (Jlc @ Thu, 20 Apr 2017 - 09:28) *
Just because an appeal was upheld at POPLA doesn't necessarily mean they didn't have reasonable cause to access the DVLA to pursue the matter. (Especially here which is why an ICO opinion would be extremely helpful, or not)

Exactly. Or are we saying every lost court case results in a DPA claim? Nobody has answered this point despite me asking about it for months.

I doubt if there's an answer to this issue. It really comes down to how a number of things stack up. Lack of compliance to the KADOE Contract and the ATA Code of Practice which results in a double whammy since the KADOE Contract makes it an obligation to work within the C.O.P.

Reasonableness of accessing the DVLA database is determined in a court itself so can swing either way, even though the DPA says that mistakes that may lead to unlawful access aren't an excuse. Take the double dip scenario. Failure of the ANPR to pick up accurate entry and exit times aren't excused if the first exit is obscured by another vehicle.

From my own perspective I would only make a claim for damages if I could positively show that a failure of some sort had occurred, either in processing data or with processes involved, including I will add, that signs had not been approved for use. That is a breach of KADOE anyway for unlawful activity.

In the case of residential claims I would claim for every charge laid against an OP as long as he/she had a copy of the rights on the lease or rental agreement to show primacy of contract.

I have the feeling that a complaint to the ICO will not always go smoothly either. Especially if it involves some sort of reliance on the DVLA. They are in cahoots.

Still comes down to the judge though who may not be at all clued up on these sorts of cases.
Jlc
QUOTE (southpaw82 @ Thu, 20 Apr 2017 - 09:40) *
QUOTE (Jlc @ Thu, 20 Apr 2017 - 09:28) *
Just because an appeal was upheld at POPLA doesn't necessarily mean they didn't have reasonable cause to access the DVLA to pursue the matter. (Especially here which is why an ICO opinion would be extremely helpful, or not)

Exactly. Or are we saying every lost court case results in a DPA claim? Nobody has answered this point despite me asking about it for months.

Not that either - but there are some cases where the 'abuse' of PII is clearer than others. But in recent days we have seen more out of court settlements (even from the big boys) so they aren't keen for matters to be heard in court but more out of financial reasons as opposed to any admission of a bonefide breach one suspects. (Although they often talk about claiming their huge costs due to the unreasonable claim they know that's extremely unlikely at small claims even if they 'won')
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