Smart Parking - Fistral Beach - failure to meet POFA2012 conditions?

daveb99

Please forgive me for starting another new thread on Smart Parking at Fistral but I'm after a quick answer to a simple question.

Last month during a holiday in Cornwall the vehicle in question was parked at Fistral Beach, operated by Smart Parking, on the xx October 2017 - but the PCN NTK has only just been received, 34 days after the alleged "contravention".

The vehicle is a personal lease (contract hire) car, and as such the registered keeper is the lease company. As I understand it, under POFA2012, Smart Parking must issue the NTK within 14 days of the offence - which they have clearly failed to do.

Am I right in thinking therefore that the keeper should appeal this, firstly to Smart Parking, then to POPLA if necessary, clearly stating that SP have failed to meet the POFA 2012 conditions (and obviously not identifying the driver)?

The reason I suspect for the PCN is because unfortunately time was spent in a shop at Fistral Beach (30 minutes) before the parking ticket was purchased - a simple mistake.

Any advice would be gratefully received - are there any circumstances under which Smart Parking can try to wriggle out of the 14 day NTK rule, which they have completely failed to adhere to in this case?

If not, would I be correct in saying that the fact that the vehicle was parked for 30 minutes longer than the ticket that was paid for is completely irrelevant?

Many thanks in advance.

KeithP

That 14 days is 14 days to get the NtK to the Registered Keeper.

The RK then of course has time to reply before another 14 day period starts to get a new NtK to you.

daveb99

Thanks for the very quick reply. So on that basis - are there any solid grounds for appeal?

Coupon-mad

Have you missed the NEWBIES thread where it says they are ALL worth fighting and how to appeal (with a template) and that the details don't matter? Smart Parking can't hold a keeper liable - ergo, the keeper cannot lose at POPLA.

The vehicle is a personal lease car, and as such I am not the registered keeper. As I understand it, under POFA2012, Smart Parking must issue the NTK within 14 days of the offence - which they have clearly failed to do.

Not quite, not with a hire/lease car. But hirer/lessee cases are covered in the NEWBIES thread separately, with a specific appeal.

And Smart do not have to comply with the POFA, but the NEWBIES thread tells you that as well, and why that means you win!

KeithP

Yes of course you appeal.

Send the blue template appeal from post #1 of the NEWBIES FAQ sticky/pinned thread.

Then read several other Fistral beach PoPLA appeals to get ideas.

Coupon-mad

Or the lessee/hirer version...I prefer the one by Edna Basher for lease car cases. The OP just needs to read the sticky.

Fruitcake

You need to edit two of your first post where you give away who did what. Only ever refer to The Driver and The Keeper who are two different people. Do not say who parked.

Also, edit your other post where "someone" has admitted that it was their fault.

Parking scammers monitor these fora.

daveb99

Thanks again for the replies. I have now read a fair bit of the newbies thread, paying particular attention to the Edna Basher template thread.

I'm slightly confused by the timings / dates. In this instance would the best thing to do be to simply tailor that template letter and send it to Smart Parking - given the 34 day time lapse? Or is 34 days within the allowed timescales? Is it necessary to confirm with the lease company that they provided the required documentation to the PPC first?

daveb99

Further to my reply above - given that this concerns a leased vehicle, looking at POFA 2012, Schedule 4, Paragraph 14, it mentions that the hirer must receive from the PPC the documents referred to in Paragraph 13(2):

13(1)This paragraph applies in the case of parking charges incurred in respect of the parking of a vehicle on relevant land if—

(a)the vehicle was at the time of parking hired to any person under a hire agreement with a vehicle-hire firm; and

(b)the keeper has been given a notice to keeper within the relevant period for the purposes of paragraph 8(4) or 9(4) (as the case may be).

(2)The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b)a copy of the hire agreement; and

(c)a copy of a statement of liability signed by the hirer under that hire agreement.

However - the documents mentioned in Paragraph 13 have not been received by the hirer as they were not included with the PCN - so the PPC have surely contravened the conditions of Paragraph 14 (2)(a)? :

14(1)If—

(a)the creditor is by virtue of paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and

(b)the conditions mentioned in sub-paragraph (2) below are met,

the creditor may recover those charges (so far as they remain unpaid) from the hirer.
(2)The conditions are that—

(a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b)a period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and

(c)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3)In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

(4)For the purposes of sub-paragraph (2)(c) a vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.

(5)The notice to hirer must—

(a)inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer;

(b)refer the hirer to the information contained in the notice to keeper;

(c)warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid;

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

(e)identify the creditor and specify how and to whom payment may be made; and

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

(6)The documents mentioned in sub-paragraph (2)(a) must be given by—

(a)handing them to the hirer;

(b)leaving them at an address which is either—

(i)an address specified in the statement of liability mentioned in paragraph 13(2)(c) as an address at which documents may be given to the hirer; or

(ii)an address at which documents relating to civil proceedings could properly be served on the hirer under Civil Procedure Rules; or

(c)sending them by post to such an address so that they are delivered to that address within the relevant period for the purposes of sub-paragraph (2)(a).

(7)In sub-paragraph (5)(d) the reference to arrangements for the resolution of disputes or complaints includes—

(a)any procedures offered by the creditor for dealing informally with representations by the hirer about the notice or any matter contained in it; and

(b)any arrangements under which disputes or complaints (however described) may be referred by the hirer to independent adjudication or arbitration.

Coupon-mad

You are meant to be using the lessee/hirer appeal version of appeal, written by Edna Basher, which already covers that point anyway. We know that Schedule 4 says, that's why Edna Basher wrote the special appeal (not the blue template I wrote) for your sort of case. No need to change it.

daveb99

Thanks - yes the plan is to use the Edna Basher appeal template.

So - given that 34 days has passed between the alleged offence and the receipt of the PCN by the hirer (during which time it is presumed, but not confirmed, that the initial NTK/PCN was sent to the lease company), would it be best to send the appeal letter ASAP or wait? There are 7 days remaining before the full 'higher' charge is due to be paid, so time is ticking away.

A simpler explanation of the time periods would be really beneficial, there is mention of 14 days, 21 days and 28 days in the legislation and it's a little confusing when a hire/lease company is involved also. This is key to the appeal case as the PPC should have provided the hirer with the documentation they received from the lease company - i.e. the hirer's details etc - Paragraph 13(2) - along with the PCN, but only a PCN has been received, and it's not clear how long they have to provide the rest of the documentation.

Also, is it best to lodge the appeal online, or by post? There will be no accompanying evidence as the parking ticket was disposed of. What happens if the appeal is refused and then the 14 day "discounted price" period has passed? If a POPLA code is provided by the PPC, but POPLA refuse the appeal, does that mean the higher charge is payable?