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Hi all. Advice appreciated. A vehicle was parked on the OK diner Oswestry for around 18 mins. The location looks like a complex of KFC, Starbucks and OK diner, so one big car park was the assumption. Food was consumed in the vehicle, but not from the diner. Im told every other space was full apart from near the diner, hence parking there. A month later the keeper received a parking ticket. From memory I believe these notices are unenforceable, but hoped to check that is actually the case with the knowledgeable folk on here. Any and all advice appreciated. Thank you.
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Before you metaphorically blow both feet off with your comments above, you need to understand that the "Driver" and the "Keeper" are separate legal entities. The Driver is always liable. The Keeper is only liable if the parking operator has fully complied with ALL the the requirements of PoFA 2012 and the Driver remains unidentified/unknown.
The person who received the postal Notice to Keeper is the Registered Keeper. Smart Parking have no idea who was driving. However, because you have blabbed above the following:QuoteA month later the driver received a parking ticket.
It is easily deduced that the Keeper was also the Driver. So, if Smart Parking have not fully complied with all the requirements of PoFA, they don't need to worry because you have given them the identity of the Driver... you!!!
So, first things, never identify the the driver, inadvertently or otherwise!. Secondly, we would need to see both sides of the NtK to determine whether they have fully complied with PoFA.
Please read this before you do anything else:
READ THIS FIRST - Private Parking Charges Forum guide
Now, you also need to understand that your belief that it is not enforceable, are famous last words when it comes to recipients wondering why they suddenly have a trashed credit record because of an unknown default CCJ. Not since 2012 when PoFA was introduced has anyone been advised to ignore a PCN.
As this is a (not so) Smart Parking PCN, you should appeal with the following:QuoteI 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 predatory conduct 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. Smart Parking has relied on contract law allegations of breach against the driver only.
The registered keeper cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtK can only hold the driver liable. Smart Parking have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
They will reject the appeal but you have put them on notice that they are not dealing with low-hanging fruit on the gullible tree.
In the meantime, show us the other side of the NtK.
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Thank you for the comprehensive response. Also for highlighting the keeper / driver nuance. I have searched smart and have been reading previous posts regarding the company, since my initial hurried request. I’ve attached the rear of the letter below. I have yet to respond in any form. I also misread the date of parking. It wasn’t a month later the keeper received the letter, but have noticed it is on the limit of 14 days (if that is still a consideration) and also depending if non working days count. Again, your continued assistance with this is appreciated.
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The date you actually received the NtK is irrelevant unless you can prove the date of delivery. What is relevant is the date it is deemed "given" to the Keeper. The NtK is deemed given two working days after the date it is issued.
In this case, the contravention date was 28th November and the NtK was issued on Monday 9th December. Therefore it was deemed given on Wednesday 11th December. 28th November to 11th December is 13 days, within the requirements of PoFA.
However, the rest of the NtK is not fully compliant with ALL the requirements and therefore the Keeper cannot be liable, only the driver, which is why you have to be careful how you talk about this.
Just send the appeal as advised, making sure you do not select any option tha identifies the Keeper as the driver. For example, if you are asked were you the driver, you decline to answer because there is no legal obligation to identify the driver to an unregulated private parking company. You are appealing only as the Keeper of the vehicle. -
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Thank you so much. I’ll copy and send the response above and report back with their reply.
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Just wanted to update and say thankyou.
I copied the text recommended above and emailed it to smart parking. Today I had a reply from them cancelling the charge. Please see below.
Again, I'm really grateful for your help.
Best wishes.
“Thank you for your recent communication.
I have noted the points you raised and would like to confirm that we are cancelling the Parking Charge.
If I can be of any further assistance please do not hesitate to contact me.
Yours sincerely,
Smart Parking Ltd”
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