Oh dear... the low-hanging fruit are about to be plucked from the gullible tree! Why on earth do you imagine that you are at fault? This is exactly the kind of thinking that these scamming firms make all their money on.
Even though (not so) Smart’s Notice to Keeper (NtK) name-checks PoFA and paragraphs 9(2)(b) and 9(2)(f), it still fails the basic requirement in 9(2)(a) to specify a “period of
parking”. All they have shown is time on
site from ANPR entry and exit images. ANPR records movement across a boundary, not
parking, and does not evidence any actual stationary “
period of parking”. Because PoFA is a strict statutory regime, partial or substantial compliance is not enough; Smart must meet every mandatory sub-paragraph if they wish to transfer liability from the
unknown driver to
known Keeper. Their NtK specifically states that it is a "
Parking Charge", not a "Time on site charge".
The consequence is that there is no Keeper liability at all under PoFA. Only the
unknown driver could ever be liable. As long as the Keeper does not identify the driver, (not so) Smart Parking can pursue their allegation only against the driver and cannot rely on PoFA to hold the keeper liable. As there is no legal obligation for the Keeper to identify the driver, how do you think they could know the drivers identity unless you blab it to them, inadvertently or otherwise.
On that basis it is entirely appropriate to appeal as the Keeper only, denying liability and pointing out the PoFA failure. For an IPC member like (not so) Smart, the second stage would be the kangaroo court that is the IAS, but the core point remains that this is a non-PoFA notice because it specifically Staes that they can only rely on PoFA subject to their compliance, so any attempt to hold the Keeper liable is misconceived.
A suitable initial appeal to (not so) Smart Parking as Keeper would be:
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 predatory conduct to your client landowner.
Your Notice to Keeper does not fully comply with all the requirements of Schedule 4 of the Protection of Freedoms Act 2012. In particular, it fails to specify any “period of parking” as required by paragraph 9(2)(a); ANPR entry and exit times are not evidence of a period of parking. Partial or even substantial compliance is not sufficient. You are therefore unable to hold the Keeper of the vehicle liable for this charge.
There will be no admission as to who was driving and no inference or assumptions can be drawn. Smart Parking Ltd 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 any supposed law of agency. Your Notice to Keeper can only ever hold the driver liable and you do not know who that was.
If you refuse this appeal, you are invited to issue a rejection letter and an IAS code, but you have no realistic prospect of success given the above, so you are urged to cancel the PCN now and avoid a complete waste of everyone’s time.
Come back when they reject that appeal (all initial appeals are rejected, irrespective of the content) and we can give you a suitable IAS appeal that will get the IAS adjudicator aroused enough to wet themselves into possibly actually considering the legal points raised, but don't hold out for success from this kangaroo court.
I can assure you with greater than 99.9% confidence that if you follow the advice you receive here, you will not be paying a penny to (not so) Smart, even though it is likely to go all the way to a county court claim, which we will assist in defending and it WILL either be struck out or discontinued before any hearing ever takes place.
