Parking Ticket Dispute - Smart Parking

rolloverbeethoven

I received a PCN from Smart Parking for overstaying on a retail park location. The car park is ANPR operated and the first 45 minutes is free and does not require a ticket to be printed.
I did not think I had exceeded my free 45 minutes but the PCN shows a duration of 56½ minutes which after allowance of 10 minutes grace is 1½ minutes. I had no way of knowing at what time is was clocked entering the park.
The contravention (their terminology) was on 8th March and the PCN was issued on 21st March.
and received on 28th March. I submitted an appeal on the grounds that the PCN was received outside the prescribed timeframe (this was before I had found this Forum).  Smart have rejected my appeal on 19th April as they say:

"We would like to clarify that as per the BPA code of practice February 2024, paragraph 22.7 "To give drivers early notice of your claim, you should apply to the DVLA for the keeper details promptly. Usually this would be applying to the DVLA no more than 28 days after the unauthorised parking event." And 22.9, "you must post the parking charge notice to the keeper as soon as possible. Your target is to send the parking charge notice to the keeper of the vehicle no more than 14 days after receiving the keeper data from the DVLA.". We can confirm that the contravention occurred on 08.03.2024, the registered keeper's details were provided to us on 21.03.2024, and the PCN was promptly issued. Therefore, this is within the time frames as stipulated by the BPA. Additionally, please be advised that we have no hold over Royal Mail postal services, once our letters are sent out".

This does not appear to be in line with POFA and there is no reference to POFA on the PCN. However as Smart are a member of BPA should they adhere to the same requirements as POFA.

I Having looked at the BPA Code of Practice, under 'Use of Photographic Evidence" S21.5a) states "photographic evidence must not be used by you as the basis for issuing a parking charge unless (a) at least one of the images captured incudes a clear record of the vehicle's VRM to which the parking charge is deemed to apply (b) the images bear an accurate time and date stamp applied at the point the picture was taken"

The PCN/NTK does show my number plate but there is no time stamp shown against it.

I am unsure how to proceed and would welcome guidance/advice.

Gr1pr

There is no mandatory requirements for parking companies to abide by POFA, its optional for them, but if they don't then they cannot use it to enforce against a keeper, POFA protects a keeper when claimants fail to comply with it 

So appeal to Popla using that and other points as seen in other recent Smart parking threads on here, as keeper, but no disclosures about who was driving 

Use any and all points, including BPA CoP failures etc, plus POFA 

Coupon-mad

I really hope you DIDN'T tick 'driver' when appealing & relying on the fact it's non-POFA ... which is 100% a winning point but ONLY if you didn't tick or add words that said "I did this/that" such that you revealed who was driving.

If you did, you've shot some toes off.

rolloverbeethoven

I didn't reveal who the driver was.
Can I put forward other reasons for disputing in my submission to POPLA that I didn't include in my dispute to Smart.

Gr1pr

Use every possible point in your Popla appeal, appealing as keeper, same as all the other examples on here 

Coupon-mad

You can win at POPLA v Smart Parking, merely with the 2 winning points:

- non POFA NTK

- no landowner authority.

But we also throw in the unclear signs point too because that's always worth including.  Please see the third post of the NEWBIES thread.

rolloverbeethoven

Thank you everyone for guiding me in the right direction. I have looked at similar cases posted here and have pout together my appeal to POFA which is worded as below. I would appreciate opinions as to whether this is suitable:

As the registered keeper of the above vehicle, I received a letter dated 21st March 2024 acting as a notice to the registered keeper. My appeal to the parking operator Smart Parking Ltd. was submitted and acknowledged on 6th April but subsequently rejected by an email dated 19th April.

I contend that as the keeper I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

 (1)   No evidence of Landowner Authority – the parking operator does not have a contract in it’s own name to issue PCNs at the site in question

 (2)   No evidence of period parked – the NTK does not meet PoFA 2012 requirements and contrary to the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NTK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Smart Parking Ltd’s NTK simply claims that the vehicle “arrived  at 11:52:24 and departed at 12:48:56. At no stage does Smart Parking Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012. Smart Parking Ltd uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering  and leaving the area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Smart Parking Ltd, however, does not provide any direct evidence of its alleged violation. It is not permissible for Smart Parking Ltd to substitute “entry/exit” or “length of stay” in place of the PoFA requirement - “period of parking”  and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Smart Parking Ltd are not able to definitively state the period of parking. I require Smart Parking Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NTK.

 (3)   The alleged contravention took place on 8th March. The NTK was issued on 21st March and received on 28th March. PoFA Schedule (4), Para 9(6) requires that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The second working day after the date of issue was 25th March and therefore the NTK was not compliant, neither was it compliant with the BPA Code of Practice 21.4a.

(4)   Vehicle images contained in PCN are non-compliant with BPA Code of Practice

 The BPA Code of Practice, Point 20.5a stipulates:

“when issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photograph must refer to and confirm the incident you claim was unauthorized. A date stamp must be included on the photograph. All photographs used for evidence must be clear and legible and must not be retouched or digitally altered”.

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all). The time and date stamp has been inserted into the letter underneath (but not part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Smart parking Ltd. to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

Coupon-mad

Why not just say the wording of the NTK is non-PoFA (as it obviously is)?   Really easy to see.  Please don't only talk about the dates.  It's not only about the dates!

rolloverbeethoven

Email received from POPLA today 
"The operator has contacted us and told us that they have withdrawn your appeal"
Thanks everyone for your input.

Coupon-mad

Yay, that's a win. Congrats!