PCN just arrived from Smart Parking - preparing appeal

jhiker

Hi,
I'm a long time member of MSE but this is my first post in the Parking forum.
A 'Notice to Keeper' PCN has just arrived and I intend to appeal this speculative invoice. I've done a lot of legwork here and at both 'Parking Cowboys' and 'Fightback Forums' and I'd really appreciate someone taking the time to advise on the first appeal to Smart Parking.
Here we go with the facts...

Private Parking Company: Smart Parking
Date of 'contravention': 01/09/15
PCN through my postbox: 15/09/15 (notice is dated 11/09/15), I can't see a postmark anywhere.
Place: Matalan car park Northwich, Cheshire
There's no ticket machines, it's all done by ANPR.
The driver overstayed by 31mins.
There was no 'Notice to Driver' at the time and the PCN has arrived by post as a 'Notice to Keeper'. They're asking for £85, reduced to £50 if paid before the 24th Sept.
The PCN was correctly addressed to the vehicle keeper.

There's no reference to The Protections of Freedom Act 2012 anywhere on the notice thus I believe the notice is not in accordance with the strict requirements of Schedule 4, Para 9.

Incidentally, the driver was shopping at Matalan that day and has receipts to prove it and so we intend to contact the store manager and express our displeasure. The driver shopped elsewhere after Matalan, hence the overstay.

I'm going to appeal to Smart Parking in the first instance and take it to POPLA if they refuse to cancel it.

I'm more than happy to use the template letter included in the NEWBIES sticky if that's the recommended best 'first approach'. i.e.

Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car, on these main grounds:

a). The sum is disproportionate, does not represent a genuine pre-estimate of loss, nor is it a core price term.
b) The sum is extravagant and unconscionable and cannot be justified.
c). There is no evidence that you have any interest in the land. I will complain to the landowner about your aggressive ticketing.
d). Your 'Notice' fails to comply with the POFA so there can be no keeper liability.
e). I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract to pay this charge, which is a penalty.

Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 or cancel the charge. I will only appeal further if you offer POPLA, the only independent ADR with a scrutiny panel and trained Assessors. The 'IAS' offered by IPC firms will not be used, for well-documented reasons.

''Drop hands'' offer
The charge is baseless but I realise that you may have nominal postage costs. Equally, I have incurred costs for responding to your junk mail dressed up to mimic a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15 so this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days and I will not pursue you for my costs.

Breach of CCRs
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered nor expressly agreed. This 'contract' is cancelled and any obligations now end.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

Do I need to add anything else or be specific about which parts of Schedule 4, Para 9 it doesn't comply with at this stage - (reproduced below)

Finally, I intend to close [FONT=Arial, serif]by telling them they [/FONT]can either:
[FONT=Arial, serif]1. Cancel the notice.
2. Pursue the driver and stop pursuing the keeper.
3. Reject this challenge and provide a POPLA code[/FONT]

Sched 4, Para 9 follows:
(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

(d)specify the total amount of those parking charges that are unpaid, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

Thanks for taking the time to read this. Have I got all my ducks in a row, and have I overlooked anything?
Finally, is it best to appeal to Smart Parking by letter or via the online facility? I'm thinking a letter might come in handy if/when we go to POPLA.
Can I respond to Smart at any time now?

Thanks in advance for any comments, reassurances, criticisms, etc.
Regards,
JRH

The_Deep

It really does not matter what you say to the PPC, they will reject it, all you need from them is a PoPLA code, keep your powder dry for the PoPLA hearing.


http://parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html


In any event, the last two paragraphs of your crib are nonsense.

Coupon-mad

Yep you don't need to add anything in detail yet.

But at POPLA stage, now that the Ombudsman Service is running it, that's when to be VERY careful when answering the 'new POPLA' webpage questions (which are written as if you must be the driver, in some cases*) and one appeal point will certainly be the NTK flaws so you can't be held liable.


*in the 2 I've submitted on new POPLA so far, cursing at the stoopid questions as I went, I just put things like:


'I am appealing as registered keeper and the operator has failed to identify the driver so I cannot be sure whether a permit was displayed/the car overstayed. The onus falls upon the party demanding money from a consumer, to prove contravention, the existence of a contract, and potential liability. See my attached PDF full appeal which shows the charge term fails to pass the Aziz Test and is not based upon any loss. In any case, Smart Parking 'Notice to Keeper' wording cannot hold a keeper liable (failure to comply with Schedule 4 of the POFA, see my full appeal PDF).'

And make sure at POPLA stage, you do attach the PDF and take a screenshot because you can't add anything later, apparently, and I can tell you the final summary page makes it look almost as if you've attached nothing...


...horrible new POPLA system so far but it's the decisions that count.

jhiker

The_Deep wrote: »

In any event, the last two paragraphs of your crib are nonsense.

You mean the 'Drop hands' and the 'Breach of CCRs' which form part of the template letter recommended to Newbies in the sticky?

The_Deep

Indeed, the PPC will have seen them time and time again over the last year. As far as I know they have never responded, so why include the, it marks you down as an easy target.

jhiker

Well, I included them because they are in the MSE recommended template letter. The Newbies thread is the first place I looked.
Does it need updating if those paras are irrelevant.
Easy target - why do you say that?

jhiker

OK - first appeal to Smart Parking Ltd prepared. Much cribbing from the Newbies template.
How does it look - have I missed anything?
Many thanks.

Name
Address
Date

Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car, on these main grounds:

a) Your Notice To Keeper fails to comply with the strict requirements of POFA 2012 so there can be no keeper liability.
Consequently you have forfeited any right to hold me, as keeper, liable for any charge.
For example, sections 2(e) and 2(f) have been ignored completely. There are other non-compliances.
b) The sum is disproportionate and does not represent a genuine pre-estimate of loss.
c) It is a ‘ free’ car park without ticketing. Your loss is nil. The sum is extravagant and unconscionable and cannot bejustified.
d) There is no evidence that you have any interest in the land.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract
to pay this charge, which is a penalty.

Formal challenge:
There will be no admissions as to who was driving and no assumptions can be drawn.
You must either;
1) Cancel the notice
2) Pursue the driver and stop pursuing the keeper.
3) Reject this challenge and provide a POPLA code

Yours faithfully,
Etc..

Extract from POFA 2012 Sched 4, Para 9 follows:
....goes on to quote a couple of relevant clauses....

jhiker

Received PCN cancellation from Smart Parking this morning.
Thanks to all on the forum.

Guys_Dad

jhiker wrote: »

Received PCN cancellation from Smart Parking this morning.
Thanks to all on the forum.

Further proof that a "War and Peace" length appeal is not always (or usually !) necessary.

Well done.

Bipex

I have received a parking charge notice from Smart and will be appealing it, but a word of info for those accessing the Smart website to so so. I have tried three times in the last week to use their appeal button and each time have received the message
"We are unable to process this appeal. Please try again in 24 hours"
It seems to me that their website is set up to allow one to pay the notice, but NOT to appeal, rather to delay any appeal - what a surprise! I warrant the pay process works just fine!
Is this fair comment?
Anyone else found this issue?
I intend to appeal in writing, btw!
Thx in advance for any feedback.

zardoz70

Make sure you take a screenshot each time with date and time visible.