Smart Parking - Astle Retail

Hyslop123

Hello all, long time reader here.

I am currently helping out a friend who's mother, the registered keeper of a vehicle, has received an NTK / PCN from Smart Parking due to an event which occurred at the Astle Retail Park.

On the date in question the driver has entered the Astle Retail Park which is monitored with ANPR cameras. The driver has then purchased a P&D ticket for 1 hour from the machine however for some reason the ticket has printed with the correct registration, but prefixed by two further letters; possibly an input error. The driver did not notice this but displayed the ticket in the vehicle, then left the site 58 minutes after entering; well within the paid period and any applicable grace periods.

Luckily the driver kept the ticket which has now been handed to my friends mother (keeper)

The Notice to Keeper is not compliant with POFA 2012 as it fails to meet the conditions on a number of counts, although it was issued within the applicable time period.

I understand that Smart Parking are a BPA member thus our aim here is to appeal to Smart, who will likely reject, and then appeal to POPLA. I have read the "NEWBIES" thread in full. I understand that there is a template appeal however I have adapted it to mention the parking ticket being purchased and failure to comply with POFA, on the basis that we have a small chance of getting Smart to cancel the ticket without needing to even go through POPLA. I wondered if you'd be so kind as to review it and advise whether it would be suitable?

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Dear Sirs

Re: PCN No. XXXXXXX

I dispute your 'parking charge,' as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a formal complaint about your predatory conduct to your client landowner and to my MP.

Please note that the driver of the vehicle on the day (who I am under no obligation to identify) has provided me with a copy of a pay & display ticket purchased at your site, which covered one hours parking (the vehicle was only on site for 58 minutes.) Due to an unknown error (potentially with your PDT machine) the registration was incorrectly input as “DDXXXXXXX” as opposed to the correct registration “XXXXXXX.” This will be recorded on your systems and can easily be verified by yourselves.

Please note that this is clearly a minor error and a period of parking has been paid for in full, thus any court claim is for this matter is “de minimis” with absolutely no loss being incurred, and thus will almost certainly fail and be classed as vexatious.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence, i.e.:

- If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

- If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. If you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end.

- in all cases, you must include a close up actual photograph of the sign you contend was at the location on the material date.

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (yourselves – Smart Parking) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 5, 6, 11, and 12. It is my belief that you have failed to fulfill the conditions of paragraph 6; which states that you must have provided myself as the registered keeper with a notice in accordance with paragraph 9(2). Paragraph 9(2) states:

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).

You have omitted in your Notice to Keeper to state:

- The period of parking alleged (please note, merely entry and exit times to the site do not constitute a period of parking);
- That the driver is required to pay the parking charges;
- 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 to pay the charges or notify the creditor of the name and address for the driver;
- Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given, the amount of the unpaid parking charges has not been paid in full, and 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;

This means that you have failed to act within the legislation set out (meet all applicable conditions under the Schedule as per Schedule 4, Paragraph 9(2)(f)) in the Protection of Freedoms Act 2012 and as such can not pursue me, as the registered keeper, for any unpaid parking charges.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Formal note:

Should you later pursue this charge by way of litigation, note that service of any legal documents by email is expressly disallowed and you are not entitled to assume that the data in this dispute/appeal remains the current address for service in the future.

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Many thanks!

Redx

as long as the driver is not identified , then yes you could try the above, if it fits in any appeal method (its extremely long for a 1st appeal) , appealing as KEEPER

normally we would just tell you to use the blue text template "as is"

so the choice is the keepers to make , long or short ? up to them

as POFA has not been complied with , then the keeper has no liability anyway, no matter what happened on the day

keep the original and a copy of the ticket safe , plus take a picture of it too

The_Deep

Have yo read what Pete Wishert MP said in the House of Commons about Smart Parking recently?

"I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process.
…
The BPA does not have the ability to regulate these companies and has shown no sign whatsoever that it is trying to get on top of some of the sharper practices. The BPA gives a veneer of legitimacy to some of the more outlandish rogue operators by including them in their membership, allowing them to continue to operate. The Bill will oblige operators such as Smart Parking to amend their practices."

and complain to your own MP.

On 15th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Hyslop123

Redx wrote: »

as long as the driver is not identified , then yes you could try the above, if it fits in any appeal method (its extremely long for a 1st appeal) , appealing as KEEPER

normally we would just tell you to use the blue text template "as is"

so the choice is the keepers to make , long or short ? up to them

as POFA has not been complied with , then the keeper has no liability anyway, no matter what happened on the day

keep the original and a copy of the ticket safe , plus take a picture of it too

I agree that it does seem a bit long! I may shorten it, remove some of the POFA stuff. Something like this:


Dear Sirs

Re: PCN No. XXXXXXX

I dispute your 'parking charge,' as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a formal complaint about your predatory conduct to your client landowner and to my MP.

Please note that the driver of the vehicle on the day (who I am under no obligation to identify) has provided me with a copy of a pay & display ticket purchased at your site, which covered one hours parking (the vehicle was only on site for 58 minutes.) Due to an unknown error (potentially with your PDT machine) the registration was incorrectly input as “DDXXXXXXX” as opposed to the correct registration “XXXXXXX.” This will be recorded on your systems and can easily be verified by yourselves.

Please note that this is clearly a minor error and a period of parking has been paid for in full, thus any court claim is for this matter is “de minimis” with absolutely no loss being incurred, and thus will almost certainly fail and be classed as vexatious.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence, i.e.:

- If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

- If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. If you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end.

- in all cases, you must include a close up actual photograph of the sign you contend was at the location on the material date.

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (yourselves – Smart Parking) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 5, 6, 11, and 12. It is my belief that you have failed to fulfill the conditions of paragraph 6; which states that you must have provided myself as the registered keeper with a notice in accordance with paragraph 9(2). Paragraph 9(2) states:

You have omitted in your Notice to Keeper to state:

- The period of parking alleged (please note, merely entry and exit times to the site do not constitute a period of parking);
- That the driver is required to pay the parking charges;
- 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 to pay the charges or notify the creditor of the name and address for the driver;
- Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given, the amount of the unpaid parking charges has not been paid in full, and 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;

This means that you have failed to act within the legislation set out (meet all applicable conditions under the Schedule as per Schedule 4, Paragraph 9(2)(f)) in the Protection of Freedoms Act 2012 and as such can not pursue me, as the registered keeper, for any unpaid parking charges.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Formal note:

Should you later pursue this charge by way of litigation, note that service of any legal documents by email is expressly disallowed and you are not entitled to assume that the data in this dispute/appeal remains the current address for service in the future.

================================================== ==========

Coupon-mad

Whatever wording you use will win, as Smart do not use the POFA.

As long as the driver is never implied, it's a win.

Hyslop123

My friend received a letter or email from Smart today, they have cancelled the charge.

Woohoo!

Coupon-mad

Course they did - easy when you know how isn't it? Never in doubt! :T