Free Traffic Legal Advice

Live cases legal advice => Private parking tickets => Topic started by: Lizalfie on February 11, 2025, 12:37:00 pm

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: WhoLetTheScamsOut on February 25, 2025, 01:17:32 pm

Also may be hepful for OP during popla appeal, smart parking barely ever include landowner authorisation so make sure to point that out during your popla appeal. From the 100s I’ve gotten from smart parking over the years up to even last week, during popla they never prove landowner authorisation in their evidence pack.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 22, 2025, 10:14:08 pm

Many thanks, I have sent the complaint as advised and will let you know the outcome.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: b789 on February 22, 2025, 01:33:38 pm

I highlighted it above... you send a formal complaint to (not so) Smart Parking. You have 33 days from the date of the appeal rejection to submit a POPLA appeal but do the formal complaint in the meantime:

Quote

For the Attention of the Complaints Department 
Smart Parking Limited
Unit 43 Elmdon Trading Estate
Bickenhill Lane
Birmingham
B37 7HE 

By email to: complaints@smartparking.com

[Date]

Subject: Formal Complaint – Procedural and Legal Failings in PCN Issuance 

Reference: Parking Charge Notice [PCN Number] 

Dear Smart Parking Complaints Team, 

I am writing to formally raise a complaint regarding the issuance of Parking Charge Notice [PCN Number], which I received as the registered keeper of the vehicle. This complaint concerns multiple procedural and legal failings, including non-compliance with the Protection of Freedoms Act 2012 (PoFA) and breaches of the Private Parking Single Code of Practice (PPSCoP). 

1. Background

 
The PCN was issued in relation to an alleged parking contravention on [date], at [car park location]. The car park has recently introduced a new parking system, and the driver was unaware of the charges. The Notice to Keeper (NtK) was subsequently received, and I submitted an appeal disputing its validity based on significant legal deficiencies. Despite this, my appeal was rejected without proper consideration of the legal arguments presented. 

2. Procedural and Legal Failings

 
A. Non-Compliance with the Protection of Freedoms Act 2012 (PoFA) 
The NtK issued in this case does not meet all the statutory requirements under Schedule 4 of PoFA 2012, rendering it legally incapable of holding the registered keeper liable. Specifically: 

• The incorrect 28-day period for payment or appeal is cited on the front of the NtK. The NtK misleadingly states that debt recovery action will commence 28 days from the issue date rather than from the date the notice is deemed ‘given’ (received), as required by PoFA Schedule 4, Paragraph 9(2)(f) and 9(6). This misrepresentation invalidates PoFA compliance. 
• Although the correct wording may appear elsewhere in the NtK, misleading information takes precedence under consumer protection principles. A motorist could reasonably rely on the incorrect, prominent deadline instead of the legally correct but less visible information. 
• Without full PoFA compliance, liability cannot be transferred to the keeper. Since I have not identified the driver, you cannot pursue the registered keeper for this charge. 

B. Breach of the Private Parking Single Code of Practice (PPSCoP) 
The Private Parking Single Code of Practice mandates that: 
• All information provided in a Notice to Keeper must be clear, accurate, and not misleading. 
• The enforcement process must be fair and transparent, ensuring that motorists fully understand their obligations. 

Your failure to provide a legally compliant NtK that adheres to the correct PoFA timeframe is a direct breach of the PPSCoP. This violation alone is sufficient grounds to demand the immediate cancellation of the PCN. 

C. Unfair Commercial Practices and Consumer Protection Concerns 
The incorrect and misleading deadline on the NtK constitutes an unfair commercial practice under consumer protection laws. The courts have consistently ruled that misleading or contradictory information can invalidate contractual obligations (ParkingEye v Beavis [2015] touched on prominence and clarity in signage, which applies here). 

3. Demands for Resolution

 
Given the clear procedural and legal deficiencies outlined above, I formally demand the immediate cancellation of PCN [PCN Number]. In addition, Smart Parking must: 
• Acknowledge its failure to comply with PoFA and the PPSCoP. 
• Cease pursuing the registered keeper for this unenforceable charge. 
• Ensure that all future NtKs contain accurate information compliant with PoFA 2012. 

4. Consequences of Non-Compliance

 
Should you fail to act on this complaint, I will escalate this matter as follows: 
1. A formal complaint to the British Parking Association (BPA) once your internal complaints procedure is exhausted. The BPA has oversight of its members’ compliance with the PPSCoP, and this breach will be reported if unresolved. 
2. A formal complaint to the DVLA, as any breach of the PPSCoP constitutes a breach of your KADOE contract. This could result in the DVLA reviewing Smart Parking’s access to vehicle keeper data. Your failure to comply with industry regulations will be brought to their attention. 
3. An appeal to POPLA based on all the points mentioned is highly likely to succeed, meaning that Smart Parking would be incurring unnecessary costs for an assessment. It would therefore be in both our interests to save time and money by cancelling the PCN now. 

5. Request for Response

 
I expect a full written response within 14 days, addressing all legal points raised in this complaint. Failure to provide a satisfactory resolution will result in immediate escalation to the BPA and the DVLA. 

I trust that you will take this matter seriously and respond accordingly. 

Yours sincerely,

[Your Full Name] 
Registered Keeper of Vehicle [Registration Number]

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 22, 2025, 08:18:17 am

Sorry to sound silly but what do I do now?

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: b789 on February 22, 2025, 03:26:06 am

Quote from: b789 on February 11, 2025, 03:58:32 pm

General consumer protection principles state that prominent misleading statements take precedence over less visible correct information. The courts have ruled in various consumer protection cases that misleading or contradictory information can invalidate contractual obligations (ParkingEye v Beavis touched on prominence and clarity in signage, which can be applied here).

The law requires that the notice must inform the keeper of the correct 28-day period. The use of a conflicting and misleading deadline on the front amounts to a failure to meet this requirement, as it creates uncertainty about when the 28-day period actually starts. A motorist could reasonably rely on the bold and prominent incorrect statement rather than the legally correct but less visible wording.

The PPSCoP requires that all information on the NtK must be clear, accurate, and not misleading. A misleading deadline prominently displayed is an unfair commercial practice, which should be raised in a formal complaint and then to the BPA.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 21, 2025, 04:28:17 pm

I have had the following response from them:

Dear Miss ????
Parking Charge:???
Thank you for your recent communication.
Having considered your appeal in detail we have decided to uphold the Parking Charge (PC) as we believe that it was correctly issued in accordance with the terms and conditions advertised within the area concerned. As your appeal was received within the initial discount period, we have extended the discount period until 10/03/2025.
We can confirm that the above parking charge was issued under Protection of Freedoms Act 2012 (POFA 2012). The parking contravention occurred on 24.01.2025, the registered keeper details were received on 31.01.2025, after which the PC was promptly issued within the 14 days required under POFA 2012. If you were not the driver at the time of the parking event, please provide us with the driver’s full name and current postal address using the contact details below. In the event that you fail to provide these details, we will use the provisions under POFA, 2012, and continue to pursue you the registered keeper, for the outstanding balance.
We note the comments made within your appeal however, we cannot rescind the Parking Charge on this basis. When using the car park in question you must adhere to the advertised Terms and Conditions, and it is the responsibility of the driver to ensure they acknowledge the signage upon entering the site. We can confirm that there is signage on entrance to, and around the car park grounds. All signage is BPA approved and compliant with The Private Parking Single Code of Practice.
All signs on site are compliant with the British Parking Association (BPA) and The Private Parking Sector Single Code of Practice June 2024. Signs and Surface markings must be designed, applied and maintained in such a way as to be visible, legible and unambiguous to drivers. Clause 3.1.1, of the single code states that “An entrance sign must be displayed and maintained at the entrance to controlled land to inform drivers as appropriate whether parking is permitted subject to terms and conditions, including payment, or is prohibited, unless: subject to terms and conditions, including payment, or is prohibited”. It also states in clause 3.1.3 a) that signs must be placed within the controlled land, such that drivers have the chance to read them at the time of parking or leaving their vehicle. There are several signs situated around the car park that advise of the tariff, terms and conditions, we can confirm all signage on site is BPA approved, and compliant with The Private Parking Single Code of Practice. Please be aware all signs are set to a standardised height, regulations and written in clearly and intelligible language. There is no ambiguous language or jargon on any of the Smart Parking signs at this site.
The car park is sited on private land, and the owners allow access to the public, with use subject to the Terms and Conditions of parking, which are advertised on signs situated around the site. The PC’s are enforceable under Contract Law; upon entering and remaining upon the car park you agree to the terms and conditions which are clearly stated on the signage. Your vehicle was parked in breach of these terms and conditions therefore we must advise the PC was correctly issued and remains outstanding.
We would like to advise that the site in question has a process in place whereby authorised individuals can report vehicle registration marks (VRMs) that they wish to be made exempt from the advertised terms, conditions and parking restrictions. Having thoroughly reviewed our records we can confirm that we have not received any correspondence from the site/an authorised individual regarding your vehicle, therefore your vehicle was not authorised to remain on site as stated on the advertised Terms and Conditions.
We can confirm that the contravention of unauthorised parking occurred as your vehicle remained on site for 38 minutes. We can confirm that this PC has been issued correctly and we have made the decision to uphold the parking charge. The Terms and Conditions of the car park are clearly advertised around the site and must be adhered to by all drivers.
You have now reached the end of our internal appeals procedure and therefore you now have two options, you can pay or appeal further with POPLA – you cannot do both.
The Appellant has the right to appeal to an Independent Appeals Service, POPLA (Parking on Private Land Appeals) using the POPLA Verification Number provided below. Please note, should you decide to appeal to POPLA and your appeal is subsequently rejected, the option to pay a discounted amount will no longer be available and the full amount of the PC will be due.
The verification number you will need to appeal is ??????????. If the appellant decides to appeal to POPLA, they will need to visit the website, www.popla.co.uk where further details of how to appeal (either online or by downloading the relevant forms) can be found. If the appellant is unable to access the website, please contact us for further information on how to obtain the forms. Please ensure that the POPLA Verification Number as noted above is quoted in all correspondence to POPLA. The appellant has 28 days from the date of this letter to submit an appeal to POPLA.
By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.
Alternatively, your 3 payment options are:
• By Post: Please send a cheque or postal order (payable to Smart Parking Ltd) to Smart Parking Ltd, Unit 43, Elmdon Trading Estate, Bickenhill Lane, Marston Green, Birmingham B37 7HE.
• By Web: To make a payment online with a debit or credit card, please visit www.smartparking.com and have your Parking Charge number to hand.
• By Phone: Pay via our 24 hour automated telephone payment service on 0330 057 6230. Please have your Parking Charge number to hand. Please note that calls to this number cost up to 7p per minute, plus your phone company’s access charge.
Yours sincerely,
Smart Parking Limited

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 12, 2025, 03:51:08 pm

OK I have selected other and sent the message as above.
Will let you know how I get on.
Thanks.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: b789 on February 11, 2025, 07:41:14 pm

No one is telling you to lie if you were the driver. They do not know who the driver is. They only know that you are the Keeper. As the Keeper you only refer to the driver in the third person. If you have to select any option on their website you choose only "Keeper" or "other". There is no other choice that doesn't force you to admit also driving then either don't use their appeals website and send the appeal by email or as a formal complaint where they are obliged to consider it as an appeal anyway or add a comment to your appeal confirming you are the Keeper and only selected an option because there was no other relevant option in order to progress the appeal.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: DWMB2 on February 11, 2025, 07:35:00 pm

What options are available? Ideally leave it blank, or select "Other" if available.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 11, 2025, 07:33:31 pm

Many thanks for this.
When they ask the reason for appeal I assume I use the " I was not the driver of the vehicle on the date of contravention "tab but then obviously not give them the drivers details.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: DWMB2 on February 11, 2025, 04:01:53 pm

Quote from: b789 on February 11, 2025, 03:58:32 pm

The NtK breaches the PPSCoP by incorrectly only giving 28 days to pay before added fees and debt recovery action will be commenced.

Well-spotted. They seem to have got the rest of the PoFA blurb on the back correct. One for us to keep an eye on for any future Smart notices.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: b789 on February 11, 2025, 03:58:32 pm

The NtK breaches the PPSCoP by incorrectly only giving 28 days to pay before added fees and debt recovery action will be commenced. The 28 days must commence from the date the NtK is received which would be at least two working days after it was posted. Even assuming it was posted on the same day it was issued the 28 days would not commence until 6th February.

This error does nullify PoFA compliance. Under Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), specifically Paragraph 9(2)(f) for ANPR-issued Notices to Keeper (NtKs), the parking operator must include a correct statement informing the keeper that they have 28 days from the date the notice is given to either pay or provide details of the driver. The term 'given' is defined under Paragraph 9(6) as two working days after posting, unless proven otherwise.

If the NtK incorrectly states that the 28-day period to pay runs from the date of issue rather than the date of deemed service, this is a clear failure to comply with PoFA. Even though the correct wording under PoFA 9(2)(f) appears on the back, the prominent and misleading statement on the front of the NtK still nullifies PoFA compliance.

General consumer protection principles state that prominent misleading statements take precedence over less visible correct information. The courts have ruled in various consumer protection cases that misleading or contradictory information can invalidate contractual obligations (ParkingEye v Beavis touched on prominence and clarity in signage, which can be applied here).

The law requires that the notice must inform the keeper of the correct 28-day period. The use of a conflicting and misleading deadline on the front amounts to a failure to meet this requirement, as it creates uncertainty about when the 28-day period actually starts. A motorist could reasonably rely on the bold and prominent incorrect statement rather than the legally correct but less visible wording.

The PPSCoP requires that all information on the NtK must be clear, accurate, and not misleading. A misleading deadline prominently displayed is an unfair commercial practice, which should be raised in a formal complaint and then to the BPA.

Easy one to deal with… as long as the unknown driver's identity is not revealed. There is no legal obligation on the known keeper (the recipient of the Notice to Keeper (NtK)) to reveal the identity of the unknown driver, and no inference or assumptions can be made.

The NtK is not compliant with all the requirements of PoFA, as it incorrectly states that debt recovery action will commence after 28 days from the date of issue, rather than from the date the NtK is given (received). This misleading and contradictory information on the front of the NtK nullifies PoFA compliance, meaning that if the unknown driver is not identified, the parking operator cannot transfer liability for the charge from the unknown driver to the known keeper.

Use the following as your appeal. No need to embellish or remove anything from it:

Quote

Subject: Appeal – Parking Charge Notice [PCN Reference]

I am the keeper of the vehicle and I dispute your 'parking charge'. I deny any liability or contractual agreement, and I will be making a complaint about your misleading and unfair practices to your client landowner.

As your Notice to Keeper (NtK) does not fully comply with ALL the requirements of PoFA 2012, you are unable to hold the keeper of the vehicle liable for the charge. Partial or even substantial compliance is not sufficient. There will be no admission as to who was driving, and no inference or assumptions can be drawn.

Your NtK contains contradictory information regarding the timeframe for payment and liability, as it clearly but incorrectly states on the front that debt recovery action will commence after 28 days from the issue date rather than from the date the NtK is given (received), as required by PoFA Schedule 4, Paragraphs 9(2)(f) and 9(6). This misleading and prominent error invalidates PoFA compliance.

The registered keeper cannot be presumed or inferred to have been the driver, nor pursued under any misinterpretation of the law of agency. Your NtK can only hold the driver liable. You have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.

The PPSCoP failure will be dealt with a POPLA stage.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: DWMB2 on February 11, 2025, 03:35:41 pm

Quote from: b789 on February 11, 2025, 03:27:09 pm

How recently was this "new" parking system introduced? Was it within the last 4 months? Was there a different parking system in place before this new system was introduced?

Smart seem to have been operating on the site since at least September 2022: https://maps.app.goo.gl/JcBhxhVhjvmGwuT69 (https://maps.app.goo.gl/JcBhxhVhjvmGwuT69)

Will be interesting to know if the terms have changed at all recently.

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: b789 on February 11, 2025, 03:27:09 pm

You are under no legal obligation to identify the driver and under no circumstances should do so, even if know who it is. There is no legal obligation on the Keeper to identify the driver to an unregulated private parking company. Even if the Notice to Keeper (NtK) is fully PoFA compliant (I haven't checked it yet), you'd have better legal protection as the Keeper.

How recently was this "new" parking system introduced? Was it within the last 4 months? Was there a different parking system in place before this new system was introduced?

Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 11, 2025, 01:04:58 pm

These are the only signs we could see afterwards

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Title: Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: DWMB2 on February 11, 2025, 12:44:13 pm

Are you able to show us some photographs of the signage at the site?

For the first time I've seen, this appears to be a Smart parking charge where they are actually seeking to use Schedule 4 of the Protection of Freedoms Act to hold the keeper liable, so we might have to do slightly more work to help you challenge this.

Title: Smart Parking Charge - Roy Castle Charity Shop Heswall
Post by: Lizalfie on February 11, 2025, 12:37:00 pm

Hi,
As the registered keeper of the vehicle I received a Parking Charge Notification from Smart Parking.
The car park in question has recently installed a new parking system and the driver was unaware of the charges.
At this point I am not sure who the driver was although with some digging I could possibly find out.
Do I have to pay the charge or give them details of the driver?
If not how do I respond\appeal ?
Any help would be greatly appreciated.


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