Smart Parking PCN, Ammanford, POPLA Appeal WON!

noiseyparker

Easy win at POPLA for Smart Parking PCN issued for an ANPR (number plate camera) only carpark.

The PCN arrived outside the 14 day time limit for notice to keeper where no ticket was stuck to the car (the case for post of these most ANPR tickets). As long as you never tell them who was driving there is nothing they can do.

Decision: Successful

Assessor Name: J*** K***

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

Assessor summary of your case

The appellant’s case is that the Notice to Keeper was not sent within the timeframe required by The Protection of Freedoms Act (PoFA) 2012. They have reiterated their grounds of appeal in their comments on the operator’s evidence pack.

Assessor supporting rational for decision

In this case, I cannot see that the driver of the vehicle has been identified at any point in the appeals process. As such, the operator is seeking to pursue the appellant as the registered keeper of the vehicle. In PoFA it states under section 9 4(b) that the notice must be given by sending it by post, to a current address for service for the keeper, so that it is delivered to that address within the relevant period. Under section 9 (5) it states the relevant period for the purpose of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. The date on the PCN is 12 January 2022. This is 24 days after the parking event, and so the Notice to Keeper was not given within the required timeframe. Accordingly, I allow this appeal.

noiseyparker

My grounds for POPLA appeal...

The recovery of unpaid parking charges is within the scope of the Protection of Freedoms Act, 2012,‘The Act’ from hereon.

According to paragraph 6 (1) (b) of The Act, where a notice to driver has not been provided prior to removal of the vehicle from relevant land at the end of the period of parking (for example handed to the driver, or fixed to the vehicle), the requirements of paragraph 9 of The Act apply.

Paragraph 9 (4) of The Act states that the notice to keeper must be received by the keeper within a relevant period of 14 days starting from the day after the end of the alleged period of parking, specified by paragraph 9 (5). The appeal must be allowed because...

 No notice to driver was given prior to removal of the vehicle from the relevant land at the end of the alleged period of parking. No notice was fixed to the vehicle or handed to the driver.

 The notice to keeper was received 28 full days after the alleged period of parking. The alleged period of parking occurred on 19/12/21 whereas the notice to keeper is dated 12/01/22 (23 full days later) and was received on 17/01/22 (28 full days later).

 The Parking Charge notice to keeper was not served within the 14 day relevant period

prescribed by The Act and is not legally compliant or enforceable.

 The keeper is under no obligation to name the driver at the time of the alleged contravention and shall not be doing so.

The content of the notice to keeper furthermore does not comply with The Act by failing to properly inform the keeper that the creditor does not know the identity of the driver.

According to paragraph 9 (1) (2) (e) of The Act, the notice to keeper must...

“state that the creditor does not know both the name of the driver and a current address for service for the driver...”

The notice to keeper contains no such statement and therefore does not comply with The Act.

patient_dream

Well done .....  proving once again that SMART IS NOT SMART ?

noiseyparker

Parking company evidence.

noiseyparker

their evidence contd.

noiseyparker

more of their BS...

noiseyparker

My comments...

The material uploaded by the private parking company fails to address the grounds for appeal. The appeal is made on the basis that the PCN is a notice to keeper but does not comply with the Protection of Freedoms Act 2012 (POFA 2012). It is therefore invalid as such, giving rise to no keeper liability whatsoever.

The parking company evidence mentions that ‘No driver detail (sic) were disputed’. However, the notice to keeper mentions no driver details to dispute. The keeper has been entirely silent regarding the identity of the driver and is absolutely within their rights in law to be so.

The PCN states in relation to driver identity…

“If you were not the driver of the vehicle and you wish to provide the drivers (sic) details, lodge a dispute, appeal or query (sic) this must be made online or in writing. Please follow the instructions overleaf.”

As a consequence of there being no obligation in law for the keeper to identify the driver, and indeed of the above PCN wording, the keeper would remain silent in the case that they were not the driver and did not wish to provide the driver’s details. It follows that the parking company can draw no conclusions whatsoever about the driver’s identity from the keeper’s silence in this matter.

It is a matter of fact that the parking company does not know the identity of the driver, that the PCN has been issued to the keeper and that the PCN fails to comply with POFA 2012. The PCN is invalid as a notice to keeper, does not lead to keeper liability and must be cancelled on this basis alone.

D_P_Dance

Read what Pete Wishart MP said recently in the House of commons about Smart Parking.and complain to your own MP>.

"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.

patient_dream

What a farce ..... you do realise that it's the likes of Smart Parking, a BPA member, again, that the new code of practice will be introduced soon

noiseyparker

Their hopeless PCN...

Umkomaas

@noiseyparker, you absolutely nailed this like an experienced veteran of this stuff. You weren't intimidated by that forest of irrelevant guff Smart Parking shovelled out. Not sure if that was to bamboozle you or POPLA. Whichever, they didn't fool you and you hit the right nail on the head with POPLA. 

Well done, a great win. 👍🥂