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PCN Charge (Smart Parking)
Kirkwill257
post Mon, 3 Oct 2022 - 18:42
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Hi,

A while since I I had to deal with one of these from the Mrs

Received a PCN 01/10/2022 from 'Smart parking' for an overstay on 06/09/2022 which the keepers registration plate is on. Car is leased if that matters so may have been issued to lease company first, unsure!

Car park is for various shops and appears to issued via anpr, no machines present as parking is free

Will add redacted letters shortly once I figure it out


Any advice would be great!
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post Mon, 3 Oct 2022 - 18:42
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ostell
post Fri, 7 Oct 2022 - 09:48
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Sirs

Ref PCN xxxxx VRM yyyyyy

I am the hirer/keeper of the above vehicle and am in receipt of the PCN you issued. I have no liability on this matter as you have failed to meet the requirements of Schedule 4 of The Protection of Freedoms Act 2012 namely, but not limited to, failing to supply the additional documents mandated by section 14 (2) (a) of the Act. You cannot therefore transfer liability from the driver at the time to me, the hirer keeper..

There is no legal requirement to identify the driver at the time and I will not be doing so.

Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Yours etc.


Sent so that it arrives just before the 21 day period so that they can't correct and reissue within the relevant time.
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Kirkwill257
post Sun, 9 Oct 2022 - 09:08
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Thanks everyone and thanks ostell for the draft and advice.

Apologies I've been away so could get access to the forum.

Will let you know how we get on
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hcandersen
post Sun, 9 Oct 2022 - 13:38
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@Sheffield Dave and Redx, with respect you are confusing wider road traffic and licensing matters with the limited scope of POFA.

IMO, the issues as regards POFA are:

Does the creditor have a right to enforce a parking charge against the driver?

If so and they are able to pursue them, then they may do so outside of POFA NB. POFA is silent on how this might be done, it only sets out the details of a NTD for the purposes of complying with their AOS scheme conditions, to apprise the driver of the charge or simply as a precursor to a subsequent NTK. Ultimately a court(in respect of a claim against the driver) would be concerned with contract issues(and possibly any limiting conditions imposed by membership of an AOS).

If the creditor has the right but does not know the driver's details then they may seek to recover the charge from the 'keeper' who is presumed to be the registered keeper. With respect, you need to look outside POFA to get a feel for how 'keepership' may be denied, it is not simply who has possession of the vehicle on the day. Tax, insurance, registration, right to repossess, 'permanence' all feature. So 'proving the contrary' is a high threshold, so high that IMO the keeper and registered keeper can be considered to be synonymous in the vast majority of situations.

Ownership, as in title, is not an issue for POFA as no liability attaches to the owner. Therefore it's not an issue for contractual claims which can only be driver/keeper/hirer.

See this link which is a very recent Environment and Traffic Adjudicator decision which quotes in detail relevant authorities:

https://www.londontribunals.gov.uk/sites/de...20Car%20Ltd.pdf

Under POFA, the registered keeper has two choices:
To pay; or
To 'transfer' liability where they are a 'vehicle hire firm' and a 'hire agreement' exists. Unlike the TMA, a hire agreement may be of any duration and not restricted to 6 months, but excludes 'hire purchase' agreements. This does not transfer keepership because the necessary permanence does not exist. This is not to say that keepership cannot be a defence, it would appear that it could, but this is a different matter because this would involve the registered keeper appealing on the grounds that they were not the keeper but that this legal entity is *** who has a hire-purchase agreement (or similar) with the firm. This sits outside POFA because unless the creditor accepts the argument and raises a separate NTK then as it involves a hire purchase agreement then it falls outside the NTH conditions and the creditor would be allowed and would be limited to pursuing the registered keeper as keeper or driver.

In summary: keepership cannot be transferred, but not being the keeper could be a defence for the registered keeper, part of the proof of which would be a hire purchase agreement which would then leave the creditor free to pursue the other party to this agreement, but as keeper, not hirer.

The creditor's insurmountable problem in this regard seems to be that a NTK must be served within a limited period (14 days) which would inevitably have been exceeded and unlike the TMA or London Local Authorities' Acts is not reset simply because the creditor accepts another party's challenge.
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Redx
post Sun, 9 Oct 2022 - 14:23
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Except Pofa doesn't apply here , just complex contract law and Smart's assumption that the actual keeper who received the PCN was also the driver of the vehicle that triggered the cameras so they proceeded on that basis, so the keeper appeals in such a manner as to not reveal who was driving ( Smart never mentioned or invoked Pofa and this has been pointed out numerous times already)

Your obsession with Pofa blinds you to the wider picture and makes you a liability here

The OP can read this thread and make their own mind up about the topic and what to do , my replies are to assist them in doing the right thing for their own benefit

This post has been edited by Redx: Sun, 9 Oct 2022 - 14:32
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Sheffield Dave
post Sun, 9 Oct 2022 - 15:28
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QUOTE (hcandersen @ Sun, 9 Oct 2022 - 14:38) *
If the creditor has the right but does not know the driver's details then they may seek to recover the charge from the 'keeper' who is presumed to be the registered keeper. With respect, you need to look outside POFA to get a feel for how 'keepership' may be denied, it is not simply who has possession of the vehicle on the day. Tax, insurance, registration, right to repossess, 'permanence' all feature. So 'proving the contrary' is a high threshold, so high that IMO the keeper and registered keeper can be considered to be synonymous in the vast majority of situations.

But keeper and RK are quite frequently trivially different, e.g. in the the case of a car just sold where the DVLA hasn't been updated. And of course hire/lease cars.

POFA completely fails to define "keeper" apart from the circular definition that it is "the person by whom the vehicle is kept", but assumed to be the RK unless the contrary is proved. You can't just take case law around the definition of "owner" in the TMA 2004 and apply it willy-nilly to "keeper" in POFA. Given the fairly unique provision in POFA to make the keeper liable for contracts the driver enters into, a very good case can be made in court, within the context of POFA, that a keeper is the person who has control over who gets to drive the car, i.e. the keeper is in a position to restrict drivers to those who they trust not to accumulate PCNs or for whom they are willing to pay out for, or to grass up.

When you hand your car over to a garage for repairs, or hand it over to a valet-collected long-stay parking service at an airport, during that time the garage/valet service has become the keeper - they get to choose who drives the car and it's completely outside your control. This is certainly what I would argue in court if such a situation came up in the context of POFA.
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Kirkwill257
post Sat, 12 Nov 2022 - 19:25
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All by way of an update many thanks to REDX and OSTELL.

The template from ostend worked and its been cancelled by smart

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Redx
post Sat, 12 Nov 2022 - 19:51
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thank you , not surprising really smile.gif
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