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Smart Parking PCN - parked without authorisation, sort of
Posted by mysterylake on 01 Oct, 2024 14:38 -
Hi all,
My stepfather runs a small business (I'll call it "our company") and recently received a PCN (on 27 September no less) from Smart Parking in the post: https://imgur.com/a/Shf6HgA
It is a possibility that the vehicle in question could have entered this car park in order to load/unload goods hired by a contractor working for the owners of the building and adjoining car park. However, I believe the owners (Empire Property Holdings) have been having... liquidation issues... and appear to be uncontactable having disconnected their phone line.
As far as I'm concerned having seen this notice, it does not conform to POFA 2012 - mostly because it was sent too late (19 days) and also to an incorrect address - and therefore my stepfather's company is under no obligation to disclose the driver of the vehicle to Smart Parking Ltd, nor liable to pay the charge. Here's what I drafted up:QuoteDear Smart Parking Ltd,
x Ltd ("we"; "us"; "our") recently received a "parking charge notice" from Smart Parking Ltd ("you"; "your"), notice number x, relating to the vehicle x of which we are a keeper.
The validity of this charge notwithstanding, you have failed to comply with the Protection of Freedoms Act 2012.
I draw your attention to Schedule 4 of the Act.
A "notice to driver" was not provided before the vehicle was removed from the relevant land (sub-paragraph 7(4)(a), thus under paragraph 6 you must provide a "notice to keeper" in accordance with paragraph 9 in order to claim rights to recover charges from us under paragraph 4(2)(a)
You have not provided a "notice to keeper" in accordance with the requirements set out in paragraph 9, assuming your vague correspondence is intended to be interpreted as such:
- Your notice does not inform us that the driver is required to pay the parking charges (required by sub-paragraph 9(2)(b)), only stating the charge and offering various options.
- Your notice does not state that you do not know the name and a current address for the driver (required by sub-paragraph 9(2)(e)).
- Your notice does not clearly warn that if the charge remains unpaid and you do not know the name and current address of the driver, that you have the right to recover the charge from us, as the keeper (required by sub-paragraph 9(2)(f)).
- Your notice does not clearly relate to a single period of parking (required by sub-paragraph 9(3)) as you have not shown that the vehicle did not exit and re-enter the location between the claimed arrival and departure times.
- Your notice was not sent by post to a current address for service for the keeper (required by sub-paragraph 9(4)(b)) as the given address uses the incorrect postcode "x".
- Your notice was not sent by post within the relevant period of 14 days beginning on the day after that on which the specified period of parking ended (required by sub-paragraph 9(5)). This is clearly demonstrated by the issuance date of 10th September which is 19 days after the specified period ending on 22nd August.
- Your notice cannot be presumed to have been delivered on the second working day after it was posted (i.e. 12th September) as given in sub-paragraph 9(6) due to the previously-mentioned incorrect address given; the date of delivery (thus notice given to ourselves) was in fact 27 September.
Furthermore, I am concerned that pursuant to sub-paragraph 11(1)(b) (as specified in sub-paragraph 4(2)(a)), the application for our details as keeper were not made within the relevant 14-day period due to the listed issuance date, and I will be raising an official complaint to the Information Commissioner's Office over this matter.
In conclusion, as you have not fulfilled the requirements set out in the Act, we will not be held liable for any charges, and we are under no obligation to provide you with any further details. Further correspondence regarding this matter will discarded.
Regards,
[myself]
x Ltd
Maybe a bit excessive but it covers all the deficiencies I thought I found in the letter, I feel that this should be enough to be dismissed through an appeal (via POPLA if not through Smart Parking).
My stepfather says he thinks it is worth writing about the loading/unloading aspect and that the contractor should have authorised the vehicle to be in the car park -- I believe that Smart Parking Ltd likely don't give a toss about our company's involvement with the contractor as they are only working for the owner and nobody else. Of course if the owner of the car park hasn't gone AWOL I would have suggested asking them to cancel the charge...
Any feedback from anyone here (who probably knows better than I do) would be greatly appreciated.
Cheers. -
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First off, it's rare to see someone post here having done so much research into the matter, so hats off to you. Smart never comply with PoFA, and routinely cancel when charges are appealed pointing this out. If you send what you have drafted, as the keeper, they will almost certainly cancel the charge. If you wanted to keep it short and sweet, you could send something along the lines of this:Dear Sirs,
We have received your Parking Charge Notice (Ref: ________) for vehicle registration mark ____ ___, in which you allege that the driver has incurred a parking charge. We note from your correspondence that you are not seeking to hold us liable as the registered keeper, under Schedule 4 of the Protection of Freedoms Act 2012 ("The Act").
There is no obligation to name the driver and we will not be doing so. We are therefore unable to help you further with this matter, and look forward to your confirmation that the charge has been cancelled. If you choose to decline this appeal, you must issue a POPLA code.
Yours,
A couple of side points:Quotealso to an incorrect address
Smart will have acquired the keeper details from DVLA - whilst this could be an error on Smart's part, I would strongly recommend checking the V5C document for the vehicle, and making sure the address is correct. The last thing you want is for DVLA to have the wrong address.QuoteFurthermore, I am concerned that pursuant to sub-paragraph 11(1)(b) (as specified in sub-paragraph 4(2)(a)), the application for our details as keeper were not made within the relevant 14-day period due to the listed issuance date, and I will be raising an official complaint to the Information Commissioner's Office over this matter.
Compliance with PoFA is not mandatory, and so them not sticking to the deadlines it mandates if they want to recover from the keeper does not necessarily constitute a breach of your data protection rights. Edit: also just clocked the recipient of the notice is a business, who are not generally data subjects in the same way as individuals -
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Is the Notice to Keeper (NtK) addressed to the "company" or your father as an individual?
I wouldn't even go into as much detail. You can almost guarantee that Smart don't have a valid contract that flows from the landowner that permits them to issue PCNs.
The polite appeal above is adequate. Personally I prefer the shorter version which covers the same points, has always worked and gives of the aroma of disdain for the unregulated private parking company. -
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Is the Notice to Keeper (NtK) addressed to the "company" or your father as an individual?
If the latter, simply change any references to 'our'/'we' etc. to 'I'/'the keeper'.aroma of disdain
I always wondered why your range of perfumes never quite took off...
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If you wanted to keep it short and sweet, you could send something along the lines of this
Sure, I thought I should put some details in of how it's not compliant but if it's likely to go through without that works for me.I would strongly recommend checking the V5C document
Will do. To be fair they probably didn't need to go through the DVLA as the business name is written in very large letters on the vehicle Compliance with PoFA is not mandatory, and so them not sticking to the deadlines it mandates if they want to recover from the keeper does not necessarily constitute a breach of your data protection rights. Edit: also just clocked the recipient of the notice is a business, who are not generally data subjects in the same way as individuals
Yeah, makes sense.Is the Notice to Keeper (NtK) addressed to the "company" or your father as an individual?
It's addressed to the limited company (presumably as the registered keeper).I wouldn't even go into as much detail. You can almost guarantee that Smart don't have a valid contract that flows from the landowner that permits them to issue PCNs.
Yeah, I gathered as much reading through other posts on here and MSE in the past... a lot easier to get rid of it just via PoFA non-compliance though
The polite appeal above is adequate. Personally I prefer the shorter version which covers the same points, has always worked and gives of the aroma of disdain for the unregulated private parking company.
Noted!
I'll probably just strongly suggest using a variant of the short notice then. Thanks for the help! -
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Quote
To be fair they probably didn't need to go through the DVLA
Just because a vehicle bears a company logo does not mean that company is the registered keeper. They must contact DVLA for keeper details each time they issue a charge.
Like I say, it could be Smart's error, but it'd be foolish not to check the V5C. What you don't want is for it to contain the wrong address, and other notices (such as a Notice of Intended Prosecution from the police, for example), to not turn up as a result. -
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Just a suggestion for the appeal:Quote
We are the registered Keeper of the vehicle and dispute your parking charge. Since Smart Parking does not rely on the Protection of Freedoms Act (PoFA) 2012, there is no legal basis to hold the Keeper liable for this charge.
As this PCN is addressed to a company, it should be evident that the company cannot possibly be the driver. There will be no admission as to who was driving and no inference or assumptions can be drawn. PPC has relied on contract law allegations of breach against the driver only. The 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.
Additionally, Smart Parking lack a valid contract with the landowner, undermining your authority to issue this charge. Smart have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN. -
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Thanks to you both for the help. I just thought I should give an update -- after waiting for a surprisingly long time(!), Smart cancelled the charge on appeal.
Taking inspiration from your short-and-sweet versions this is what was sent:QuoteDear Smart Parking Ltd,
We have received your Parking Charge Notice (notice number XXXXXXXXXX) for the vehicle XXXXXXX which you allege has incurred a parking charge at Newspaper House, Blackburn.
Under Schedule 4, paragraph 9 of the Protection of Freedoms Act 2012, your notice does not fall under the specified conditions for a Notice to Keeper, most notably as the date of issue (10 September) does not fall within the relevant period of 14 days from the alleged date of contravention (22 August).
Therefore, we are under no obligation to disclose driver details or settle the alleged charge. We are unable to help you further in this matter and look forward to your confirmation that the charge has been cancelled. Please note that if you wish to reject this appeal you must issue a POPLA code.
Regards,
DWMB2 -- Good call, the address on the V5 was indeed wrong! Not sure how that one happened.
b789 -- while I would love to send an appeal like your suggestion I think I'll save giving them any attitude for if I get one sent to myself
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Thanks for the update - a good result, and our collective 100% success rate with Smart continues.Quote
DWMB2 -- Good call, the address on the V5 was indeed wrong! Not sure how that one happened.
Get that changed asap if you haven't already. I always mention it when people raise issues with their address, as more often than not it turns out to be a V5C issue - we've seen plenty of cases on all 3 parts of the forum (private parking, council and criminal) go awry due to documents being sent to the wrong address! -
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My suggested appeal, verbatim, has never failed.
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I've never seen any Smart appeal that references PoFA fail. They're very much an operator that only pursues the easiest of cases.
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Smart go by the adage that they slide much further on BS than sandpaper. THere's too much ripe pickings out there on the gullible tree for them to bother with "sandpaper" such as PoFA.
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