To appeal or not?

confuseddotcom80

I entered a private car park operated by Smart Parking with NPR cameras, on 16/04/23

13:16: Entered car park

13:19: Purchased paper ticket from machine entering registration. Paid for 4 hours which is the maximum allowable stay in this car park - I still have the ticket for evidence.

17:40: Exited car park, 4hrs 24mins after entry (4hrs 21mins after ticket purchase).

I accept I was 21-24mins late leaving the car park, although hoped a reasonable grace period would be granted given I had paid for the maximum time allowed and had no option to extend.

On 6/6/2023 I received a notice from Debt Recovery Plus (DRP), chasing payment of an unpaid PCN relating to the above parking. I had received no PCN previously so this was the first notice I had of a PCN existing.

Rather than engaging with DRP, I reviewed the PCN on the Smart Parking website from the details provided by DRP and decided to appeal the PCN with Smart Parking on the basis:

1. I had not received the PCN (the first notice of it existing to me was 6/6/2023 via DRP)
2. The PCN date was 3/5/2023, 17 days later than the parking incident - not sure how relevant this is but I understand 14 days is a key metric here. Not that I received it anyway.

The response from Smart Parking to my appeal, dated 13/07/2023, stated:

•  "..we have no hold over Royal Mail postal services however we can confirm that the PCN was posted to you 3/5/23."
• that "as a gesture of goodwill we have pulled the PCN back from the Debt Recovery and reinstated the initial discount amount of £60 which is now valid until 28/7/23"
• "that we have no option but to uphold the PCN." since "the contravention occurred as our payment system confirms no payment was made for your vehicle registration for the 264 minutes the vehicle was on site."

I am now faced with a choice, pay the discounted penalty by 28 July or raise an appeal via POPLA (no further appeal allowed direct to Smart Parking).

Reasons to appeal:

• I maintain that I did not receive the PCN in good time, the DRP letter was the first I knew. Smart Parking blames the Royal Mail but I wonder whose responsibility it is to ensure the PCN gets issued and received by the relevant party?
• The PCN was dated 17 days after the contravention. 
• As it turns out the PCN is for no payment whatsoever, which is incorrect. I paid for the maximum time. I was just late leaving.

Reasons not to appeal and pay discounted penalty:

• To avoid the risk of having to pay a higher penalty fee
• I was late leaving the car park, which is still a contravention, even though this is not what is stated on the PCN/appeal response. (If I'd received a PCN specifically for an overstay (rather than non-payment) within 14 days I'd have probably, reluctantly paid up).

To appeal (via POPLA) or to pay? That is the question!

Umkomaas

I am now faced with a choice, pay the discounted penalty by 28 July or raise an appeal via POPLA (no further appeal allowed direct to Smart Parking).

You won't get access to POPLA now, because access can only flow from the issue of an in-date verification code resulting from the rejection of the initial appeal by Smart Parking.  Just ignore anything and everything from DRP, Smart Parking won't take this further, they have shown no appetite to litigate against motorists with single PCNs. 

Instead of the to-ing and fro-ing with Smart, had you come here first, the following appeal would have killed this dead. 

This is an appeal by the registered keeper - no driver details will be given. Please do NOT try the usual Group Nexus trick of asking for driver details in order to get around the fact that your NTK does not comply with POFA. As there is no keeper liability then liability cannot flow from the driver to the keeper and is an automatic win at POPLA. Please therefore cancel the notice, or issue a POPLA code at which stage you will withdraw.

Simple as that. 

confuseddotcom80

Thanks for prompt response, with hindsight I appreciate I should have come here first!

Smart's response to my appeal did state the option of appealing further with POPLA and gave me a verification code to use, so it would seem POPLA is still an option (at least according to Smart), I think they've simply moved the dates to allow this or the option of a discounted penalty to apply.

Umkomaas

confuseddotcom80 said:

Thanks for prompt response, with hindsight I appreciate I should have come here first!

Smart's response to my appeal did state the option of appealing further with POPLA and gave me a verification code to use, so it would seem POPLA is still an option (at least according to Smart), I think they've simply moved the dates to allow this or the option of a discounted penalty to apply.

When is that verification code dated. It expires in around 32 days from the date of rejection. If it is still current, can we see - verbatim - what you've written to Smart in all your correspondence with them please?

confuseddotcom80

The verification code is dated 13/07/23 and I am told I have 28 days (from 13/07/23)  To lodge an appeal with  POPLA using the code.

I sent one correspondence to Smart, using their online PCN appeals form and they sent their response via letter. Regrettably, I did not keep a copy of my text, however, I can be confident it would not be too dissimilar to the following. I was careful with the information I offered and simply asked them to cancel the PCN and debt recovery. I did not state who was driving, nor did I admit to any contravention, however, in appealing I did acknowledge the PCN:

Appeal sent via Smart Parking website, 12,06/2023:
"I am writing to appeal this PCN on the basis that I did not receive it. The first I knew of it existing was in a letter from Debt Recovery Plus (DRP), dated 6/6/23, chasing for payment. I used the information in the DRP letter to find the PCN on your website.

Furthermore, I note that the issue date of the PCN is shown as 3/5/23, 17 days after the alleged contravention.

I request that the PCN is canceled and DRP are instructed to call off the recovery of the charge."

Coupon-mad

But did you tick 'driver' on their dropdown menu (and ruin your 100% guaranteed win as keeper) or did you appeal as registered keeper?

confuseddotcom80

I don't recall any such dropdown/option. The form looked like this:

confuseddotcom80

I completed the relevant details and did not upload any supporting documentation (next page). So they do not know if I am just the registered keeper or driver, as far as I am aware.

Umkomaas

The verification code is dated 13/07/23 and I am told I have 28 days (from 13/07/23)  To lodge an appeal with  POPLA using the code.

Actually it does last for 32/33 days, but if you can complete and submit by day 28, there's no risk of missing the deadline. 

Furthermore, I note that the issue date of the PCN is shown as 3/5/23, 17 days after the alleged contravention.

That's going to be your slam dunk appeal point - a PoFA non-compliant NtK. Use that as your very first POPLA appeal point, incorporating it into the PoFA failure near-template from the NEWBIES FAQ Announcement, third post.  As often posted by forum stalwart @Fruitcake, these are the key points to include in any POPLA appeal:

1) Non-PoFA compliant NTK/NTH
2) Not the driver/not the person who may be liable for the charge
3) Not the landowner
4) No standing to issue charges in their own name
5) Inadequate signage
6) BPA CoP failures

confuseddotcom80

confuseddotcom80 said:

I completed the relevant details and did not upload any supporting documentation (next page). So they do not know if I am just the registered keeper or driver, as far as I am aware.

that said, I was the driver (even if they don't know this right now). In case this is known or has been unintentionally inferred what is my best course of action?

How strong do you think are my grounds for appeal based on either:
1) the delayed/no PCN notice issued/recieved? or
2) the alleged contravention (complete non payment) is the wrong one, my actual contravention was overstaying the maximum stay (that I have evidence of paying for) by 21-24mins.

Or do I just ignore from now on and hope it will eventually go away?

Umkomaas

confuseddotcom80 said:

confuseddotcom80 said:

I completed the relevant details and did not upload any supporting documentation (next page). So they do not know if I am just the registered keeper or driver, as far as I am aware.

that said, I was the driver (even if they don't know this right now). In case this is known or has been unintentionally inferred what is my best course of action?

How strong do you think are my grounds for appeal based on either:
1) the delayed/no PCN notice issued/recieved? or
2) the alleged contravention (complete non payment) is the wrong one, my actual contravention was overstaying the maximum stay (that I have evidence of paying for) by 21-24mins.

Or do I just ignore from now on and hope it will eventually go away?

When Smart Parking see your full-blown POPLA appeal, they will withdraw and save themselves their POPLA fee of £30 chasing an impossible 'win'.