SMART PARKING PARKING CHARGE: ADVICE SOUGHT

1winglow

Hi All

I am new here and have spent some time reading through the numerous threads relating to Parking Charge Notices etc. I have some specific questions relating to the circumstances relating to this matter as it will influence exactly how I contest this charge.

1. The alleged incident happened on 27 April 26. The notice was issued 13 April 26. It was actually received on 18 April 26. Even if receipt was theoretically assumed to be 14 April 26, is the NTK invalid as it was received more than 14 days after the alleged incident, and accordingly does not comply with POFA requirements?
2. The NTK makes no reference to POFA 2012; but surely Smart are relying on POFA in order to pursue the keeper?
3. The driver was in an unfamiliar area and was late for an important appointment and entered the car park in error. They could not pay the parking fee as they had no coins and their phone battery was flat. The driver left the car park (11 mins after entry), charged their phone at a third party location and returned to the car park on foot (approximately one hour later). They attempted to call the number on the parking sign; but call was unanswered after 2 mins duration. A payment was then made via the RingGo App at 11:49. The attached receipt details the time, vehicle registration and parking location reference (21512).
4. Notwithstanding the payment was made late, is the payment adequate consideration in terms of the contract?
5. The signs displayed in the car park refer to full terms and conditions; but they are not displayed.
6. The signage shows Smart is a member of BPA but the NTK says they are an IPC approved. Does this contradictory information carry any weight in terms of the validity of the signage (BPA website suggests Smart are no longer BPA members)?

In summary, what’s best way to proceed with rejection of the claim:

i) NTK invalid.

ii) Payment (late) made;

but consideration adequate.

iii) Use both of the above.

I appreciate any rejection is likely to be rebuffed; but I think there is merit in building a defence in advance of potential court proceedings.

Gr1pr

13th May, not April !

Try and appeal if you want, but plan A is always the best option, not any appeals

At the moment they always discontinue money claims

Here is a similar case below

https://forums.moneysavingexpert.com/discussion/6666902/smart-parking-issues-advice-please

1winglow

Thank you for that Gr1pr. Yes, my typo error: NTK issued 13 MAY.

Do you have any thoughts on the specific fact that a payment for 1 hour was made for an actual parking duration of 11 mins-admittedly late?

Coupon-mad

There's no appeal worth trying with an IPC firm. Don't bother.

Try a firm complaint to whichever property company appears at the entrance or online, as running the retail park.

You'll never have to pay this. It gets even easier to see off if you await the DCB Legal Claim Form!

Gr1pr

If full payment was made by the driver for the full amount of time spent on the site, the requiring early prompt payment was banned last year, see the current Joint Code of Practice on the IPC website

The fact that the driver left and returned later may alter the saga, but if full payment covered everything then you certainly should win in the end, but I doubt that it would get that far, they never do with Smart Parking

That sign says nothing about when to pay

1winglow

As predicted, my internal appeal to Smart Parking has been rejected. The response is cursory and completely disregards the fact that payment was made, albeit after the vehicle was parked for a period of 11 mins, and the receipt was submitted. I have drafted an appeal letter. Would someone with experience of appeals kindly be willing to

look at my draft appeal letter to IAS and comment, please, on its content.

1winglow

Here is my appeal letter to IAS, unfortunately the paragraph numbers have not been copied correctly during the cut and paste process:

1. Smart Parking Ltd (the “Operator”) has issued the Parking Charge Notice SPXXXXXX (the “PCN”) to me on the basis that I am the keeper of the vehicle in question and is seeking to recover unpaid parking charges from me on that basis:
2. The PCN is titled ‘Notice to Keeper - Parking Charge’
3. There is no allegation within the PCN that I was driving the vehicle in question.
4. The form and substance of the Notice is clearly intended to allow the operator to avail themselves of the of the keeper liability provisions under Section 56 and Schedule 4 [Appendix 1] of the Protection of Freedoms Act 2012 (“POFA”).
5. The Operator concedes that they “do not know the driver's name or current postal address”.

1. This appeal must be decided with reference to the basis on which the PCN has been issued. That basis is that I am the keeper, and not that I am the driver.

1. For the avoidance of doubt, whether the Operator may, could, or might at some future point pursue me on the basis that I am alleged to be the driver is irrelevant to this appeal.

1. The explanatory notes to POFA [Appendix 2] explain that pre-POFA:
   1. “any parking contract will be between the driver of a vehicle and the parking provider”;
   2. “any tort is committed by the driver of the vehicle”; and
   3. “accordingly, the keeper may not be liable in law for the charges incurred if he or she was not the driver at the time.”

1. POFA therefore provides the only mechanism by which an Operator may recover unpaid parking charges from the keeper - rather than the driver - of the vehicle.

1. A failure to comply with Schedule 4 of POFA therefore means an Operator cannot recover unpaid parking charges from the keeper of the vehicle.

1. As set out in paragraph 1, the Operator is seeking to recover unpaid parking charges from me as the keeper of the vehicle.

1. Compliance with Schedule 4 of POFA is therefore a relevant issue in this appeal and if Schedule 4 has not been complied with, this appeal must be allowed.

1. A creditor only has the right to recover unpaid parking charges from the keeper of the vehicle under paragraph 4(1) of Schedule 4 where the criteria in paragraph 4(2) of Schedule 4 are met.

1. Paragraph 4(2)(a) requires that the conditions in paragraphs 5, 6, 11 and 12 (so far as applicable) are met.

1. Paragraph 9(4) of Schedule 4 of POFA requires that, where the notice is sent by post, it is DELIVERED (not just sent) within the relevant period.

1. Paragraph 9(5) of Schedule 4 of POFA provides that the relevant period for delivery is 14 days, beginning with the day after the parking event.

1. The alleged parking contravention was on 27/04/2026. Taking 28/04/2026 as the first day, that means 11/05/2026 is the 14th day - i.e. the last day on which the Notice could be DELIVERED and meet the requirement of Paragraph 9(4).

1. The notice is dated 13/05/2026. This is, in any event, outside the 14-day period.

1. The notice is deemed to be delivered (unless the contrary is proved) on the second working day after posting.

1. The 1st working day after posting is 14/05/2026. The second working day after posting is 15/05/2026.

1. It is therefore deemed to have been delivered on 15/05/2026, which is after 11/05/2026 and therefore outside the permitted 14-day period for DELIVERY.

1. The Notice to Keeper was therefore not DELIVERED in accordance with paragraph 9(4) of POFA and therefore the right of recovery under paragraph 4(1) of Schedule 4 of POFA does not apply.

1. As the Operator is seeking to recover unpaid parking charges from me as the keeper of the vehicle, and they have failed to comply with Schedule 4 of POFA, this appeal must be allowed.

1. Additionally, the PCN is in breach of Clause 8.1.1 of the Single Sector Code of Practice [Appendix 3] because the PCN, in its design and/or language, states that the keeper is liable where they cannot be held liable. The keeper cannot be held liable in these circumstances because the PCN was not given in accordance with Paragraph 9(4) of Schedule 4.

1. In so far as it is relevant because either the Operator or the IAS assert otherwise, there is no legal presumption that the keeper of the vehicle was also the driver.
   1. On 25th April 2023, His Honour Judge Mark Gargan gave judgment in Vehicle Control Services v Ian Mark Edward [Appendix 4]. This was a case in which an Operator brought proceedings to recover a parking charge from the keeper of a vehicle, circumstances which are manifestly relevant to this appeal.

1. His Honour held (at paragraph 34) that “the evidential effect of establishing that the defendant was the relevant keeper, does not produce any inference, rebuttable or otherwise, that the defendant was driving on this particular occasion”. He continued: “Therefore, there is no material inference for the defendant to rebut. As there was nothing to rebut, it does not seem to me to be right to draw an adverse inference from his failure to engage in seeking to rebut it”.

1. Furthermore, he gave 3 other reasons to justify his decision (at paragraph 35):

1. That that finding is consistent with the underlying purpose of Schedule 4 [of POFA]
2. That his decision “preserves and respects the important general freedom from being required to give information, absent a legal duty [to do so]”
3. That “simply because somebody is a registered keeper, it does not mean on balance of probability that they were driving on this occasion”.

1. VCS v Edward clearly demonstrates that there is no legal presumption that the keeper of the vehicle was also the driver.

1. However, to head off either the Operator or adjudicator attempting to cite Elliot v Loake [Appendix 5] as precedent otherwise, that case is clearly distinguishable on the facts from the present appeal. In that case:

1. Forensic evidence showed that the defendant had lied to the police
2. The defendant stated that he had given no one else permission to drive the vehicle
3. Griffiths LJ held that the Magistrates regarded “the evidence he was the owner of the car, COUPLED WITH THE UNTRUTH WHICH THEY FOUND THAT THIS DRIVER TOLD TO THE POLICE OFFICER, as sufficient evidence to satisfy them that he was in fact the driver of the car on the evening in question”.

1. Elliott v Loake is a case which turned on its own facts. The facts of that case are materially different to the facts in this matter and cannot be relied upon as authority for the proposition that there is a legal presumption that a keeper is the driver.
2. Notwithstanding the foregoing, the Operator has failed to address the specific points in the keeper’s internal appeal letter dated 4 June 2026 [Appendix 6], submitted to the Operator, online.
3. The Operator’s letter to the keeper, dated 17 June 2026 [Appendix 7], in paragraph 1 states: “it was correctly issued in accordance with the terms and conditions advertised within the area concerned” without detailing the terms and conditions referred to.
4. Paragraph 3 of the Operator’s letter states: “We can confirm that the Parking Charge was issued due to insufficient time paid”. Paragraph 4 states: “As clearly stated on the car park signage…. the Terms and Conditions have been breached.” The Operator has chosen to disregard the proof of purchase [that clearly shows the parking location, registration and amount paid] dated 27 April 2026 and submitted with the online internal appeal on 4 June 2026.

Coupon-mad

Yes send that.

Then post the laughably 'bent' IAS decision in my IAS decisions thread please…

You will never have to pay this but the IAS is worth a punt ONLY because operators sometimes offer 'no contest' and we have seen that already from Smart, since they forum-shopped to the IPC (aka IAS).

BTW did that rejection arrive by email or by post?

1winglow

Thanks for that, Coupon-mad. The internal appeal rejection letter from Smart Parking was sent by email.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82045571#Comment_82045571

Thought so.

They appear to have lied to another poster that they 'posted one second class' that mysteriously never arrived. They seem to be up to their old tricks of ghost rejection letters - investigated and exposed by the BPA - but are now (reportedly) pretending they posted the missing ones.

1winglow

Had an email from IAS and appeal successful. Thanks to all here for the advice and particularly those who did the “leg work” on the drafts.