Smart Parking - PofA

WoodyBM

We've (company car) received a PCN from Smart Parking. I posted on Pepipoo about it and the advice was that Smart Parking's PCN fails to follow PofA and therefore the Register Keeper (Our Company) can't be responsible for the 'Fine'.

However this advise was given without anyone being able to read the PCN properly as the scanned text is very small. I've since copied and pasted the text on there and the advise has gone a bit quiet with the thread dying off!

So the PCN reads:

Smart Parking Ltd have the right to seek payment of the parking charge for unauthorised parking of the vehicle on the land on the relevant data as owner of the land, on the basis of a contractual right to occupy or to have possession of the land, or acting as agent of the landowner.

A Parking Charge Notice (PCN) is payable with respect to the vehicle registration mark ****** for the alleged breach of advertised terms and conditions within 'WATERWORLD, STOKE-ON-TRENT' on ******

The signage, which is clearly displayed at the entrance to and throughout the carpark, states that this is private land and the carpark is managed by Smart Parking Ltd.

By either not purchasing the appropriate parking time or by remaining at the carpark for longer than permitted, in accordance with the terms and conditions set out in signage, the Parking Charge is now payable to Smart Parking Ltd (as the creditor).

A Parking Charge Notice of £100 is now due for payment and must be paid before the end of 28 days from the date of this notice. If the parking charge notice is paid before ****** the amount of the parking charge notice will be reduced to £60. If you were not the driver of the vehicle and you wish to provide the drivers details, lodge a dispute, appeal or query this must be made online or in writing. Please follow the instructions overleaf.

Following the landmark Supreme Court ruling of Parking Eye vs Bevis, it has now bee established that a parking charge notice issued on private land is enforceable. the court rejected claims that such charges are extravagant, exorbitant or unconscionable and advised that such charges act a necessary deterrent for breach of contract. If you feel you have sufficient grounds to appeal this notice you will find full details of the appeals process overleaf.

Note there's a date at the top of the notice (5 days after the alleged parking) but it doesn't say what this relates to - I presume it's the date they issued it. The only reference to time, is an ANPR entry time and ANPR exit time.

So, is there ground for PofA? Suggested letter is:

Dear Sir,

Parking Charge Notice [xxxxxxxxxx] - Vehicle Registration [AA11AAA]
Formal Dispute of Parking Charge

We refer to the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Limited (“Smart”) to our company, [ABC Limited (“[ABC]”)] in respect of an alleged breach of Parking Terms and Conditions at Waterworld, Stoke-on-Trent on [Date of Incident]. We confirm that [ABC] is the registered keeper of this vehicle and we write to formally dispute the validity of this PCN.

In order to be able to claim unpaid parking charges from a vehicle’s keeper, an operator must deliver a Notice to Keeper in full compliance with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). There are many reasons why Smart’s PCN does not comply with POFA and consequently, Smart has forfeited its right to utilise the provisions of POFA to claim unpaid parking charges from [ABC]. In order for you to understand why, we suggest that you carefully study the details of Schedule 4, Paragraph 9 in particular.

Please provide within the timescales specified under the British Parking Association Ltd Code of Practice written confirmation of Smart’s cancellation of this charge. Alternatively, should you still believe that Smart has a valid claim, please provide us with details of the Independent Appeals Service (POPLA) and a unique POPLA Reference Number so that we may escalate our dispute.

Please note, the contact details provided are of a representative of the company and not contact details of the alleged driver.

Thank you for your cooperation and we look forward to receiving Smart’s notification that this charge has been cancelled.


Yours faithfully,



Fleet Management Department,
[ABC Limited]

Fruitcake

To be POFA compliant, the NTK must meet each and every one of the POFA 2012 requirements. The only way to do this is to compare the wording of the NTK with the wording of the relevant part of the POFA.

This will depend on whether ANPR was use or not as to which part of the POFA you need to compare.

It won't matter, Not so Smart will reject it anyway so then you will use non POFA 2012 complaint NTK as one of your PoPLA appeal points. Alternatively you will have to point out to Not so Smart where they have failed to meet POFA, and even then they will probably reject it.

Normally we recommend the use of the BPA template in blue from the NEWBIES thread for the first stage appeal, but there is nothing wrong with the one you have got. I personally don't think it will matter and you will get a rejection.

Not so Smart don't currently do court; I don't think they are clever enough to do so, but they have six years to try.

Guys_Dad

As Fruitcake says, at some point you will need to point out exactly where the Smart NtK fails to meet the requirements of POFA.

I am sure that there are threads on this forum that highlight these, assuming that they are using the same wording.

But you MUST identify their failures either with your independent adjudication or court, should it get there.

Please do a search on here for recent Smart threads.

Coupon-mad

However this advise was given without anyone being able to read the PCN properly as the scanned text is very small.

We know Smart PCNs are not POFA ones and many of us also post on pepipoo (I post as SchoolRunMum there). You can check for yourself: compare the wording, see if 9(2)f of Schedule 4 of the POFA (the warning about keeper liability after 29 days after service of the NTK) is in there. It isn't.

This is well known but do check so you understand why. Smart do not use that statue, probably because it is easier & lazier not to have to meet the deadlines. So yes, send that challenge letter but by email or online, not in the post! Parking firms lose post. Do not do it that way - and keep proof of the appeal submission.

Then if they reject, you can easily beat them at POPLA by copying one already written, by searching 'Smart POPLA no keeper liability' as keywords in this board. It would just need adjusting in the wording, to make sense from a company Fleet Manager.

But you may not need POPLA so one step at a time and trust us and pepipoo - we know what we are doing!

WoodyBM

Thank you all so much for your helpful replies - wish me luck!!

Fruitcake

Good luck.

Here is the POFA that relates to NTKs. You should compare line by line the NTK against the Act, and note every one where the strict requirements are not met. These will be some of the points you will use at PoPLA.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Note that there are two paragraphs to look at. One where a windscreen ticket or NTD was given, and one where there was no windscreen ticket or NTD.
You need to determine which one is relevant and pick holes in the NTK you have received.

WoodyBM

How long do they have to reply to the appeal? Today is the 14th day and we've not received a thing from them.

Coupon-mad

35 days - ish.

WoodyBM

That's great thank you.

Pilgrim85

I sent an appeal as shown in blue in the newbies thread after a pcn in a Matalan car park and my charge was cancelled by Smart two weeks later with no further input so it does work.

WoodyBM

Thanks to everyone for their input. You'll be pleased to read Smart Parking have cancelled the ticket.