Free Traffic Legal Advice

hello everyone
I moved from London to Hull and signed up to 2 gyms and spend well over 2 hours weekdays at the gym, since I work from home with computers, I hardly move. So need to make up for it


PROBLEM

A friend gave me a gym pass for pure gym in analby in Hull and asked me to meet up with him before 5pm, So I got there about 440pm. Then when he came, we share pleasantries and went in and did our workout. After I finished, I looked around and left

KINDLY NOTE:

No where in the gym does it say we have a max stay of 3 hours
None of the staff are in, after 6pm ish, as its all automated
No where in my welcome email or gym app does it say a max stay

PCN ISSUED

I got 2 tickets saying I am issued a PCN of £100 for overstaying the 3 hours limit, which I appealed to the company www.smartpartking.com, but was rejected.

I just drove to the center now, to see if there were signs displayed and yes there are signs displayed, if you look carefully. But not at the gym or entrance and it could easily be missed


Kindly advise moving forward

as I want to lodge an independent appeal


Kind regards
Ehi

this ?

POPLA Verification Code: [REMOVED BY MOD]

Apologies, I thought appealing would be a walk in the park, as I was given a free gym 5 day pass, as to be honest, I never saw the 3 hours warning, until I drove back there now

many thanks

If you have two parking charges then you should have two POPLA codes, as each is appealed separately. Have you appealed both?

Yes I have appealed both, but I only got the above rejection today. I am guessing the 2nd is on the way

Apparently, I was there for 5 days in a row, but only got 2. I am not sure, If I stayed below 3 hours in other 3 times, hence future fines are on the way.

But for now, one rejected, one pending.

tnx

hello
any advise on what to do next with my independent appeal ? many thanks

A couple of general tips for POPLA:

• Be detailed. Lead the assessor through each of your points, as if they have no prior knowledge. Leave as little room for misinterpretation as possible and explain exactly why each point means that your appeal should be upheld and the parking charge cancelled.
• Don't write your appeal in the online form. Produce it as a PDF that you will upload to the POPLA system. If you're referencing signage, include photos in-line in your appeal
• Use numbered headings for each of your appeal points to make the appeal easy to follow. Ideally read some other examples, on here and the MSE forum, to get an idea of what a good POPLA appeal looks like.
  

As this is Smart Parking, I would strongly recommend including a point on landholder authority - in the past, including this has often led to Smart withdrawing from the process, meaning you win. There's an example of how to word such a point below:

Quote from: b789 on August 18, 2024, 09:10:43 pm

No evidence of landholder authority

The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator. It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

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 “relevant 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 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 Code of Practice 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

[/quote]

I see, many thanks, as I would revert with my draft shortly.

I was given 28 days

hello
very sorry this is late, I have had some challenges. I have removed personal details and done a draft challenge which I want to submit today, kindly find attached here

I cant upload to this forum as I am told the upload folder is full and I should contact the administrator, however I have uploaded it here to my dropbox account

https://www.dropbox.com/scl/fi/4i047o9gvvlhf2420juae/PCN-Appeal-pure-gym-analby-2.pdf?rlkey=5dy0lluvruov91sn27f9ump0n&st=tp8d5ylz&dl=0


many thanks

I haven't gone through it fully but simply looking at your appeal points, you have about zero chance of POPLA accepting the appeal on mitigation.

Waffling on about what the Gym has or has not done or their staffing levels is of no consequence and will not be considered. POPLA is only interested in whether the PCN was issued correctly on points of law or the BPA CoP.

So, if the driver is still unidentified, was the PCN POFA compliant? If not, the burden of proof is on the operator to prove that the Keeper was the driver.

Do the signs conform to the requirements of the BPA CoP and do they adequately bring to the attention of the driver the charge for breaching the terms?

Were the signs able to form a contract with the driver?

Is there a valid contract flowing from the landowner to the operator?

And so on. What the Gym did or did not do is irrelevant.

I see, I have deleted all the other points, except for no 1. Which you earlier gave me. Moving forward, do you have templates for the other points ?

Do I leave the photos about the signs not being so obvious ?

many thanks

POPLA is only interested in whether the PCN was issued correctly on points of law or the BPA CoP.

So, if the driver is still unidentified, was the PCN POFA compliant? If not, the burden of proof is on the operator to prove that the Keeper was the driver.

They havnet identified me as of yet, just a letter to which I have acknowledge in my 1st faulty appeal (In which I did say, I was visiting the gym), which has been rejected.

So I have kind of roped myself in

Do the signs conform to the requirements of the BPA CoP and do they adequately bring to the attention of the driver the charge for breaching the terms?

I had attached a number of photos to my appeal, in which there are no signs, as you approach the shopping center and no clear signs as you drive in. However there are 2 signs as you turn right ( which I would argue is very easy to miss) and a sign by the side of the gym, which if you look in the photos I attached, faces another side and would not be something I would have seen. So I would say no

Also, I did visit the gym 6 days in a row and never noticed any of the signs



If you look at the google road layout, I attached, its a straightforward drive to the gym, virtually an L shaped drive, as the gym ( in question, I visited) is at the corner or the end of the road



Were the signs able to form a contract with the driver?

I would again say no, see the photos I attached. Even leaving the gym, it would be hard to see them



Is there a valid contract flowing from the landowner to the operator?
I dont know, but I dont think so, as its a shopping center and I dont believe SP owns that land



And so on. What the Gym did or did not do is irrelevant.