Sunday, 26 May 2013

Prankster to lose persistent evader status?

The Parking Prankster recently learned that he has been labelled a 'persistent evader' by Smart Parking.

The Prankster feels this is a little harsh, especially as the appeal process has not yet completed for most of these tickets. He feels quietly confident in his appeals to POPLA, especially as the signs in the car park were in the name of Town and City Parking Ltd, and the tickets were issued in the name of Smart Parking Ltd. He has asked Smart Parking to produce their contract with the landowner ASDA, to show they, and not Town and City Parking Ltd, can issue parking charges and pursue them to court. This is a requirement for the BPA Ltd code of practice:

7.1 If you do not own the land on which you are carrying
out parking management, you must have the written
authorisation of the landowner (or their appointed
agent) before you can start operating on the land in
question. The authorisation must give you the authority
to carry out all the aspects of the management and
enforcement of the site that you are responsible for. In
particular, it must say that the landowner requires you
to keep to the Code of Practice, and that you have
the authority to pursue outstanding parking charges,
through the courts if necessary.
 7.2. The written authorisation should include certain information. See the Operators’ Handbook for more details

As Smart Parking have not produced either their authorisation or the relevant sections of the Operator's Handbook to POPLA, The Prankster feels quietly confident the adjudicator will be consistent with previous judgements such as here, post #7.

The Appellant made representations, submitting that the case of VCS v HMRC held that the Operator needs rights of occupation or possession in order to have authority to issue parking charge notices. The Appellant submits that the Operator does not have this authority.
Membership of the Approved Operator Scheme does require the Operator to have clear authorisation from the landowner (if the Operator is not the landowner),to manage and enforce parking. This is set out in the BPA Code of Practice.Therefore the Operator is likely to have authority to issue parking charge notices. 
The Operator also submits that they have a contract with the landowner that authorises them to issue parking charge notices. 
However, as the point was raised by the Appellant, then the Operator should address it by producing such evidence as they believe shows that they do have authority. A copy of the contract the Operator submits they have with the landowner has not been produced. 
Having carefully considered all the evidence before me, I must find as a fact that,on this particular occasion, the Operator has not shown that they have authority to issue parking charge notices. As the Appellant submits that the Operator does not have authority, the burden of proof shifted to the Operator to prove that they do. The Operator has not discharged the burden. 
Accordingly, this appeal must be allowed.

The Prankster suggests that anyone with a ticket from Smart Parking might also ask when appealing to POPLA to see the relevant documentation from the Operator, satisfying 7.1 and 7.2 of the BPA Ltd code of practice.

Exciting News

Anyway, back to the actual subject of this blog. Exciting news! The Prankster has just received notice that Smart Parking themselves have cancelled one of these tickets, taking the number of outstanding tickets down to 3. The Prankster therefore has high hopes that he might now be downgraded from 'persistent evader' to 'occasional evader' or even 'might be an evader, but most likely we accidentally ticketed him without any legal basis for doing so'.

Here is The Prankster's successful appeal.

Dear Smart person,
I have received the invoice referred to above and as my car was not parked at this location between the times stated I wish to invoke your appeal process.
Your parking charge notice shows pictures of my car at 06:22 and 18:54. I enclose a copy of a parking charge notice from one of your friends showing pictures of my car at 09:38 and 16:14. Obviously my car cannot be at both places at the same time.
I require you to respond within 14 days, then either cancel the invoice or issue me with a POPLA code within 35 days. Any communication with me other than acknowledging this letter, cancelling the invoice or issuing a POPLA code will be treated as harassment.
Yours faithfully
The Parking Prankster,

Phew! What a relief it will be when I finally get downgraded to 'parker'.

Of course, The Prankster still has the parking charge from the other company to worry about. They haven't cancelled yet, but The Prankster is sure they will see sense rather than cost themselves £27 at POPLA.

Happy Parking

The Parking Prankster

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