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#Post#: 57591--------------------------------------------------
Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: Lizalfie
Date: February 11, 2025, 6:37 am
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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.
[attachment deleted by admin]
#Post#: 57592--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: DWMB2
Date: February 11, 2025, 6:44 am
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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.
#Post#: 57593--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: Lizalfie
Date: February 11, 2025, 7:04 am
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These are the only signs we could see afterwards
[attachment deleted by admin]
#Post#: 57631--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: b789
Date: February 11, 2025, 9:27 am
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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?
#Post#: 57635--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: DWMB2
Date: February 11, 2025, 9:35 am
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--- Quote from: b789 link ---
>
> 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?
>
--- End Quote ---
Smart seem to have been operating on the site since at least
September 2022:
HTML https://maps.app.goo.gl/JcBhxhVhjvmGwuT69
HTML https://maps.app.goo.gl/JcBhxhVhjvmGwuT69
Will be interesting to know if the terms have changed at all
recently.
#Post#: 57639--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: b789
Date: February 11, 2025, 9:58 am
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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.
--- End Quote ---
The PPSCoP failure will be dealt with a POPLA stage.
#Post#: 57640--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: DWMB2
Date: February 11, 2025, 10:01 am
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--- Quote from: b789 link ---
>
> The NtK breaches the PPSCoP by incorrectly only giving 28 days
to pay before added fees and debt recovery action will be
commenced.
>
--- End Quote ---
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.
#Post#: 57709--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: Lizalfie
Date: February 11, 2025, 1:33 pm
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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.
#Post#: 57710--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: DWMB2
Date: February 11, 2025, 1:35 pm
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What options are available? Ideally leave it blank, or select
"Other" if available.
#Post#: 57713--------------------------------------------------
Re: Smart Parking Charge - Roy Castle Charity Shop Heswall
DIR By: b789
Date: February 11, 2025, 1:41 pm
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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.
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