Free Traffic Legal Advice

Received PCN from Smart Parking (attached).


I’m the registered keeper. The driver was driving long distance with two young children when one of them fell ill. The driver stopped briefly at a hotel to briefly use the facilities, after explaining to the hotel staff and asking if the children could use the toilet.


A few weeks later, I receive the notice from Smart Parking. Obviously the driver had no idea there was a charge for parking, or she would have paid it. The notice shows the time in the car park as 11 minutes.


Naively, I thought a simple explanation to Smart Parking would clear things up,thinking I’d reach a human being with common sense and decency, but obviously not. The appeal was rejected. Naively, I also identified the driver.


I’m after some advice please. Do I go to POPLAR? Just ignore?


I read something about asking them to prove they have the consent of the landowner? Another thing about the ANPR times not being valid to show the time it was actually parked - only entry/exit.


The hotel isn’t local so I have no idea what the signage was like, but the driver obviously didn’t notice them or they genuinely would have paid.


Note: there is ZERO chance of me paying this “invoice” unless a court instructs me to.

I can’t upload the google street view photo either, but here’s a link
https://maps.app.goo.gl/G2J2ZdW82ubuF5z86?g_st=ic

Have you complained to the hotel and asked them to get their agent to cancel the PCN?

What exactly did you put in your appeal? Where is the other side of the NtK

Read this thread on how to show images: READ THIS FIRST - Private Parking Charges Forum guide

A simple appeal by the keeper telling Smart Parking where to go, would have seen this off at POPLA stage. Now it is doubtful that will be successful and you will have to hope that a judge would agree with you that the driver did not breach any terms of parking.

Your only hope at POPLA is that Smart don’t have a valid contract flowing from the landowner that permits them to issue PCNs in their own name and the signs at the location are incapable of forming a contract.

If you are the keeper and you were not driving and you didn’t transfer liability to the driver by actually naming them, then you have a very good defence with POPLA. Please confirm that the PCN is in your name as the keeper.

You actually have 33 days, not 28, from the date of the appeal rejection to submit your POPLA appeal, so you have a bit longer than you thought. It is all done on line so you can literally do it at the last minute, if necessary.

Smart Parking PCNs are never compliant with PoFA which means that only the driver can be liable for the charge. Smart have no idea who the driver is unless the keeper, the person who receives the PCN, blabs the drivers identity to them, inadvertently or otherwise.

If Smart wanted to be able to hold the keeper liable because they don’t know the identity of the driver, they would have to fully comply with all the requirements of PoFA. They haven’t.

POPLA will not care one iota about mitigating circumstances, so, pleading about needing comfort breaks for little children carries zero weight. POPLA assessors only look to see if the PCN was issued correctly and will only consider points of law and the operators own Code of Practice (CoP).

In the POPLA appeal, you, the keeper, are appealing on the following points:

1. You are the keeper and there is no legal obligation for you to identify the driver and you decline to do so. If you definitely were not the driver, then say so. Do not lie. Refusing to identify the driver is not lying. However, denying you were the driver when you really were, is lying.

As the PCN is not compliant with all the requirements of PoFA, there can be no keeper liability.

2. The operator has not shown that the person they are pursuing is the driver. The burden of proof is on the operator to show that the person they are pursuing is the driver. Unless the keeper has identified as the driver, they have no way of knowing who is the driver. Only the driver can be liable for a non-PoFA compliant PCN. So, if the keeper has not identified the driver, Smart cannot pursue the keeper and POPLA will say that the PCN has been issued incorrectly.

3. You will put Smart to strict proof that they have a valid contract flowing from the landowner that allows them to issue PCNs in their own name. Whilst POPLA have been known to accept a signed statement that a contract exists, you must insist that a copy of the actual contract is evidenced. Almost always, Smart never have a valid contract.

4. If the driver did not know about the charge for parking at the location, that means that the signs were not sufficient to bring the charge to the attention of the driver. If the signs were not prominent, obvious or sufficiently clear, then no contract can have been entered into by the driver. Do you have any photos of the signs? Are there any in GSV? You will put Smart to strict proof that their signs were easily seen, prominent and fully compliant with their AoS CoP.

In your POPLA appeal, point out that you are appealing as the keeper. If you were not the driver, say so otherwise simply decline to identify the driver. List the points of your appeal and then expand on each point and lead the assessor through the reasoning on each point.

Show us what you intend to send so that it can be critiqued. Create it as a PDF file which you will be able to upload on the POPLA website. Don’t use the web form because that has a character limitation and removes all formatting. Simply say “see attached PDF file”.

That’s a bit feeble. I gave you 4 points to use and you’ve only shown 3. You need to expand on each point and lead the assessor to a conclusion. PoFA is a very important point, so you need to explain to the assessor (imagine that they are dim witted) why the keeper cannot be liable.

The Notice to Keeper (NtK) does not fully comply with ALL the requirements of PoFA 2012, and therefore, the operator is unable to hold the keeper of the vehicle liable for the charge. Partial or even substantial compliance is not sufficient. The keeper was not the driver and I am under no legal obligation to identify the driver to an unregulated private parking company. No inference or assumptions can be drawn to suggest that the keeper must also be the driver. The operator 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. There is ample persuasive case law to validate that point. The operators non-PoFA NtK can only hold the driver liable.

You then have to explain that as the keeper cannot be liable, the burden of proof is on the operator to show that you must have been the driver. They can’t, but you have point that out to the assessor in no uncertain terms. The conclusion to that point is that the PCN must have been issued incorrectly and should only be addressed to the driver. Catch-22.

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In this case with a keeper appellant, yet no PoFA “keeper liability” to rely upon due to the above mentioned failures, the POPLA Assessor must first consider whether they are confident that they know who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, as explained due to the failure of the operator to fully comply with PoFA, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NtK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not fully complying with PoFA Schedule 4 as pointed out above. This applies regardless of when the first appeal was made and regardless of whether a purported 'NtK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of PoFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The GSV you have shown is 3½years old. You’d have to use images that are much more recent. Put the operator to proof that they have all the required signs at the entrance and throughout the car park and that they all comply with the CoP requirements.

Inadequate signage leading to failure to adhere to PoFA 2012 and breach of the BPA Code of Practice

The operator is put to strict proof that any signs at the location are able to form any alleged contract. The driver has informed me that no signs were visible which means that they obviously did not to comply with the Code of Practice (CoP) of the operators Approved Trade Association (ATA), the British Parking Association (BPA).

Notably, the operator has failed to show that the signs are legible from all parking spaces and, specifically, there is insufficient notice of the sum of the parking charge. Section 19.3 of the BPA CoP states:

“You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle… Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Section 19.4 of the BPA CoP states "If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes:

• specifying the sum payable for unauthorised parking
• adequately bringing the charges to the attention of drivers, and
following any applicable government signage regulations.”

The signs at this location fail to prominently give adequate notice of the specified sum payable. Considering that this operator often relies on the Supreme Court appeal decision in the Beavis case, the signage at this location fails miserably when compared to the signage in that case which clearly showed the charge prominently. It should be noted that within PoFA it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge.

POFA defines “adequate notice” as follows:

2(2) The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).”

“2(3) For the purposes of sub-paragraph (2) ‘adequate notice’ means notice given by:

the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or

where no such requirements apply, the display of one or more notices which:

specify the sum as the charge for unauthorised parking; and
are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”.

Even in circumstances where PoFA does not apply, as in this case, I believe this to be a reasonable standard to use when making an independent assessment of the signage in place at the location. The minuscule font used in the signs at this location fail, miserably, to provide adequate notice of any charges.

Considering the signage in place at this particular site against the requirements of Section 19 of the BPA Code of Practice and PoFA, it is beyond any doubt that the signage is not sufficient to give adequate notice of the charge and bring the parking charge to the attention of the motorist.

Talking about “fleshing out” the appeal, how about something like this regarding the contract:

No evidence of landholder authority

The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator.  It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

The operator is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the “relevant land” then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules.

A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply.

Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and, of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement). Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
who has the responsibility for putting up and maintaining signs
the definition of the services provided by each party to the agreement

OP, where is their rejection of your representations?

The PCN makes no attempt to invoke keeper liability. It's not that it tries and fails, it doesn't and SMART don't. Your case is run-of-the-mill as regards SMART.

So where's their rejection? I cannot imagine for one moment that they've stated that they're looking to hold you liable as keeper and if you confirm this then this MUST included in any appeal IMO.

Withdrawn at POPLA. Thanks everyone for your help.

Yes, SMART withdrew.