Hi,
I am after some advice. Today I have received a £100 charge from Smart Parking (reduced to £60 if paid in 14 days). The date of the charge was 20/11/2024 and as mentioned the letter arrived today (14 days later, although the issue date on letter is 27/11/24). On the date I had paid for parking from 1500-2300hrs via the Just Pay app and paid the £5. My time leaving the car park was 2335hrs so 35 mins over.
£5 was the max charge in this car park regardless of time, so had I booked the parking from 1000-2345 hours it was still only £5 so there is not even a loss of earnings to the parking site!
I have sent an appeal to the Smart Parking people stating the above but I hold no hope that they will see any sort of common sense. Should the appeal fail what is the best next steps? (I wish I hadn't messaged them before asking!!)
Cheers
Rich
Please show us exactly what you put in your appeal to Smart. Please tell us whether the driver has been identified.
It's a pity you did not come here for advice before submitting an appeal as (not so) Smart do not comply with PoFA and as such, cannot hold the Keeper liable unless the Keeper has admitted to also being the driver. Smart have no idea who the driver is unless the Keeper blabs it to them, inadvertently or otherwise. There is no legal obligation on the Keeper to identify the driver to an unregulated private parking company.
Hi - thanks for the reply. On the picture they have of me entering the car park you can clearly see me as the driver.
Anyhow - My response to them is as below
Hi - I have received the above parking notice charge today. I paid for 1500-2300 hr. I was slightly early arriving and slightly late leaving (At total of 19 mins prior and 35 mins after). If I had paid for 1400-2345 it was the exact same price to park (£5.99 incl the Just Park Fee). Anytime above 4 hours is the same price to park. I don't believe this is a justifiable charge based on the fact the the car park has not incurred any loss to earnings. The £5.99 is the maximum charge even if I was booking for 17 hours! Given this I hope that this PCN can be quashed on this occasion.
The PCN states that I did not pay for adequate parking but I paid the £5 max fee which would cover me for longer then the parking required that I entered in to Just Park when booking
On the picture they have of me entering the car park you can clearly see me as the driver.
How would they know it was you? They have no idea what you look like.
Either way, what's done is done. Your next step is to start drafting up a POPLA appeal. Can you get evidence of the tariffs? One point can then be that you paid a tariff of sufficient value to cover the duration of your stay, and as such penalising you for a minor input error regarding the times is not pursuing a legitimate commercial aim, making the charge an unenforceable penalty.
Whilst this is Smart Parking, you should also include a point challenging them to prove they have a valid contract with the landowner to enforce parking at the site. Smart have had issued with this in the past, and often discontinue when it is raised in an appeal. Here's some wording you can use for this point:
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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.
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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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
OK - Ty for this - yes true they have no idea what I look like - Most learn to think before acting sometimes.
I will see what they say and then go from there. Many thanks for the help so far
Rich
Ah yes, I'm getting ahead of myself, hadn't noticed they've not yet rejected you.
I am sure the rejection is only a matter of time
Agree x 1
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