Highview Parking 'Charge Notice'

lanchesterredandwhite

Hi, I'd be grateful for some advice - I've read around the internet a bit but haven't found a case quite the same as mine as yet.

I have received a 'charge notice' from Highview Parking. My car is on camera entering and then leaving a car park 2 and a half hours later. Apparently (the driver didn't even notice this) there is a 2 hour limit in that car park.

To put it into context, this is for a free car park, for half an hour 'too long', in a medium sized town where there is ample free parking, and no paid parking.

The recording was taken on 23 July, the date of the notice from Highview Parking was dated 2 August, and received yesterday.

I responded, giving no details, except that I challenged their notice, and asked for a POPLA code.

They came back with a standard response saying that they would not give me one until I gave them the reasons of my challenge. I have no intention of doing that.

I am not worried by any of this - it would in my view be costly and difficult for them to prove that a contract had been entered into, and then impossible for anyone to demonstrate loss from the use of a single free parking space where there are many other free spaces nearby, at a rate of

£85 per half hour = £170 per hour = £1,530 per day = £9,180 per week = £477,360 per year

However, I could basically do without the hassle.

Should I keep challenging, or just start ignoring?

Also, do you know who Highview may be working for? I see them associated with Tesco a lot, but there is no Tesco nearby.

The only shop nearby is an Iceland, but to make things even dafter, the free car park is basically in a bus station.

zzzLazyDaisy

lanchesterredandwhite wrote: »

Hi, I'd be grateful for some advice - I've read around the internet a bit but haven't found a case quite the same as mine as yet.

I responded, giving no details, except that I challenged their notice, and asked for a POPLA code.

They came back with a standard response saying that they would not give me one until I gave them the reasons of my challenge. I have no intention of doing that..

There are lots of similar cases - just put 'highview' into the MSE search engine and see what comes up.

At the moment you are playing into their hands, as the procedure is that you must first appeal to the PPC (you have not done that, simply challenging the PCN with no reasons is not an appeal for these purposes). In the meantime, the clock is ticking for you to send them an appeal.

Whatever you say in your appeal, they will refuse it, but the object is to get the POPLA code. So you need to send in a 'soft appeal' (do a search, you'll find plenty of examples.

As a by-the-by.... if you only received the PCN yesterday, I am astonished that there has been time for you to write in and challenge it AND to receive their reply, all in 24 hours. That must be something of a record :cool:

Custard_Pie

zzzLazyDaisy wrote: »

As a by-the-by.... if you only received the PCN yesterday, I am astonished that there has been time for you to write in and challenge it AND to receive their reply, all in 24 hours. That must be something of a record :cool:

I can probably beat that. I e-mailed an appeal to my PPC the day after receiving their junk mail. They rejected my appeal as not being an appeal. So, I appealed to their appeal of my appeal and finally got a PoPLA code.

In an all, four e-mails within 24 hours of receipt!

:rotfl:

zzzLazyDaisy

Custard_Pie wrote: »

I can probably beat that. I e-mailed an appeal to my PPC the day after receiving their junk mail. They rejected my appeal as not being an appeal. So, I appealed to their appeal of my appeal and finally got a PoPLA code.

In an all, four e-mails within 24 hours of receipt!

:rotfl:

WOW! I am impressed! Such efficiency!

lanchesterredandwhite

zzzLazyDaisy wrote: »

There are lots of similar cases - just put 'highview' into the MSE search engine and see what comes up.

At the moment you are playing into their hands, as the procedure is that you must first appeal to the PPC (you have not done that, simply challenging the PCN with no reasons is not an appeal for these purposes). In the meantime, the clock is ticking for you to send them an appeal.

Whatever you say in your appeal, they will refuse it, but the object is to get the POPLA code. So you need to send in a 'soft appeal' (do a search, you'll find plenty of examples.

As a by-the-by.... if you only received the PCN yesterday, I am astonished that there has been time for you to write in and challenge it AND to receive their reply, all in 24 hours. That must be something of a record :cool:

Thanks (I think!) - yes, things moved fairly quickly - got the fake PCN on Monday night, emailed them Monday night, got a response refusing the POPLA code, yesterday lunchtime.

I appreciate the clock may be ticking on an appeal, but I suppose that at the heart of my query is whether I should even appeal to the PPC, and go down the PPC - POPLA route?

I could do, but then I'm balancing the time I would spend on a POPLA appeal with the fact that Highview never take people to the Small Claims Court to start with. Then even if it did get that far (surely a tiny possibility), there is no way that they could prove that level of consequential financial loss on the facts of the case (even if they could demonstrate the driver entered and then was in breach of a contract, which I would also challenge). Also, I'm slightly concerned that an unsuccessful POPLA appeal may actually give them some encouragement.

To be honest, I'm looking at this and not seeing a compelling reason why I should start the appeal, other than I would avoid 5 - 6 nasty letters. But as they don't frighten me, my instinct is to ignore.

I know advice has shifted more towards appealing, but on the facts of this case, am I missing something?

zzzLazyDaisy

You are right in that Highview does not have a history of issuing proceedings. But neither did Parking Eye until a couple of months ago, now they are issuing hundreds of claims a month. Court proceedings are a whole lot more time and hassle than POPLA (which is a simple paper appeal with no attendance by either party) - and the PPC has 6 years from the date of the alleged breach to issue proceedings, so they could easily change tack further down the line.

Added to that, the regular posters have a 100% success rate at POPLA for posters who follow their advice, whereas there are no guarantees in litigation, and if you lose in the small claims court, you need deep pockets to appeal.

For me POPLA is a no-brainer, but you may take the opposite view, and both views are perfectly valid.

lanchesterredandwhite

zzzLazyDaisy wrote: »

You are right in that Highview does not have a history of issuing proceedings. But neither did Parking Eye until a couple of months ago, now they are issuing hundreds of claims a month. Court proceedings are a whole lot more time and hassle than POPLA (which is a simple paper appeal with no attendance by either party) - and the PPC has 6 years from the date of the alleged breach to issue proceedings, so they could easily change tack further down the line.

Added to that, the regular posters have a 100% success rate at POPLA for posters who follow their advice, whereas there are no guarantees in litigation, and if you lose in the small claims court, you need deep pockets to appeal.

For me POPLA is a no-brainer, but you may take the opposite view, and both views are perfectly valid.

Thanks, that's helpful, I follow the logic, and understand the risks of not going down the POPLA route.

You mention that

"the regular posters have a 100% success rate at POPLA for posters who follow their advice"

It may be a naive question, but where is, or how do I get, that advice? I can see the sticky at the top of the form with decisions, which is dead helpful as a starting point, but of course no two cases have exactly the same facts.

Thanks again

zzzLazyDaisy

As I explained before, the first thing is to appeal to the PPC. That's a 'proper' appeal, not just a 'give me a code' letter (which they will reject out of hand, as you have found out).

So go back to my advice in post 2 and draft an appeal. Post it here and one of the regulars will help you to finalise it.

Once you've sent the appeal off, and while you are waiting for the POPLA code, have a read of the POPLA decisions thread, starting with the most recent. In fact you may even find this thread helpful in preparing your appeal to the PPC - but don't go overboard as they are not going to take much notice of it anyway - The object is to do enough to get the verification code.

You will soon see a pattern emerging on what sort of points win at POPLA. Prepare your first draft and, as if by magic, one of the regulars will come along and help you with it. We don't do template letters, and we don't do it for you, but we will help you to prepare your own appeal.

D

lanchesterredandwhite

OK - had a bash at my POPLA appeal. I'll put a very brief, soft appeal into Highview, so this is what I intend to take to POPLA when I get to that stage.

Comments welcome.

Parking Appeal

Sir/Madam,

I appeal against the decision from Highview Parking, on three grounds:
a. That the driver of the car did not enter a contract with them;

b. That even if they did, Highview Parking have not provided evidence of breach of that contract; and

c. That even if they did enter into, and breach, that contract, Highview Parking suffered little or no consequential financial loss, and certainly not the levels being claimed.

Entering into a contract
The signs in this car park advising of the ‘terms and conditions’ are extremely unclear. The only two terms and conditions listed are that ‘this parking area is for customers only’ and ‘customers may park in this parking area for a maximum of two hours only’.
Yet this land is in a town centre, surrounded by shops and businesses. The land adjacent to the car park would appear to be in multiple ownership: on the northern edge of the car park is a Bus Station; on the eastern edge of the car park is the busy B6308, with a range of shops, pubs, and services, on the southern edge of the car park is the Victoria Centre, and on the western edge is the town centre, with a range of shops and services.
It is not at all clear, therefore, in whose ownership the car park lies, or, when the notice refers to ‘customers’, which shops or services the customers must be using. The many people who use the car park to get a bus connection? The many people who use the car park to visit the shops and services on Medomsley Road? The many people who use the car park to visit the Town Centre, and facilities such as the theatre, banks, and department stores which are not in the Victoria Centre?
It is not clear from signage at the car park who is entering into the contract, or the scope of that contract. Indeed, even now, the driver of the car does not know who owns the car park, or who Highview are working for. It is not, therefore, possible for anyone using the car park to make an informed choice as to whether they are able to, or wish to, enter a contract on the scant terms and conditions on the signs, or who that contract is with.
Finally, to enter into a contract, there must have been consideration (in the legal sense of the term) by both parties. The fact that this is in a free car park in a town full of free parking will be returned to later on, but no consideration was offered by the driver of the car in order to enter into this contract.
I would therefore challenge whether a contract has been entered into, because
a. The driver of the car still does not know who the contractual offer is from or with;
b. Because the contractual ‘offer’ is from an unknown party, the ability of Highview Parking to enter into a contract on that party’s behalf is challenged, and not can be clarified verified via an understanding of their likely relationship with that party (in a way that it could if, for example, this was a car park within the cartilage of a supermarket) ;
c. The driver of the car (or any user of the car park) does not know the scope of the contract, and therefore the fundamental terms of the contract;
d. No consideration has been offered by the driver;
e. No informed choice can be made for the reasons set out above.
Breach of contract
To breach a contract, one must have been formed in the first place. This is not accepted, for the reasons set out above.
However, even if a contract has been entered into, it is my view that there is no evidence of breach of contract in this case.
The only evidence supplied in this case is a photo of a car, for which it is claimed that I am registered keeper, entering into the car park (at xxxxxxxxxxx), and then a photo of a car leaving the car park at xxxxxxxxxxxxx on the same date.
It may well be the car for which I am the registered keeper. Yet on neither photo is the registration number clear. The smaller photos apparently showing the numberplates of my car are misleading. They are not close ups of the larger photographs: they are clearly from different angles and in the case of the departure photograph, the numberplate on the rear of the car is yellow, whereas the photograph in the close up of the registration number is white! While the car in the pictures may well be mine, this photographic evidence is ambiguous enough to place doubt in my mind about the accuracy of their recording systems. Where and when were the photograph of the registration numbers taken (if indeed they were and they are not some form of mock-up)? If the photograph of the registration number has been inserted, how am I or the courts to know whether the same applies to the times on the top of the pictures of the car?
Entering and then leaving the car park at those times does not constitute breach of contract, even if one has been entered into, on the terms and conditions set out. The terms and conditions of the alleged contract relate clearly (it is the only thing they are clear on) to the length of time for which the car is parked. The ambiguous photographic evidence of ‘breach’ relates only to entrance and exit of the car park. These are different matters.
For example, any time spent driving to and selecting a parking place, having entered the car park, or reversing from the parking place and driving out of the car park – both at slow speed in a town centre car park – is time that was not spent in any breach of the terms of the ‘contract’.
Also, as the driver of the car was dropping off a number of passengers, and themselves that day, I understand that they may have spent some time stationary but not in a parking place (and therefore not covered by the terms of the ‘contract’) dropping off passengers at a convenient point so that they could go to their nearby destination (the local theatre). I also understand that the driver may have spent some time, having left the parking bay, waiting for the same passengers to return from their show. For this period of time, the driver of the car was not in breach of the terms of ‘contract’.
Furthermore, any time spent reading the terms and conditions of parking would also be time spent not in breach of contract.
Of course it is not certain on this occasion how much time was spent in the car park, but not in a parking bay, but when considering a breach of contract based on a period of 31 minutes, it may easily, and reasonably, have been a significant proportion of this time. The onus is on Highview Parking to demonstrate breach of contract. Their ‘charge notice’ claims that ‘the vehicle was in violation of the terms and conditions displayed on the signage’.
Yet they have provided no such evidence of breach of contract, just ambiguous, misleading evidence of a car entering into a car park and then leaving a car park.
The level of financial loss
As set out above, this is a free car park, in the centre of a town with a population of 27,394. It is surrounded by a wide range of uses, on all sides, and with the entire town centre within 5- 10 minutes comfortable walk. The car park is used as one of the main town centre car parks for visitors to the town – not just for customers of a particular shop or shopping centre (not least because it is not made clear who the car park belongs to, or is managed by).
Even if it is found that a contract has been entered into (which is challenged), and even if Highview Parking’s evidence is felt to be sufficient to justify that breach has occurred, I now turn to the issue of financial loss and that dynamic – of a free car park servicing the entirety of a town centre in the absence of any indication to the contrary – is critical to understanding the levels of loss suffered.
First, I understand from the driver of the car park that the car park was not full on that date. That is not particularly surprising: this was a weekday morning / lunchtime. The town has very ample free parking. Indeed there are no paid spaces anywhere in the town, and a number of free car parks in close proximity.
So how could any financial loss have been incurred? There is no revenue from parking charges in a free car park, so the parking of the car for which I am registered keeper in a parking bay at the car park can only have caused any financial loss (to any landowner or land agent) if it prevented another person from parking and then spending money in those shops.
Yet if there were spaces available, free of charge, elsewhere in the car park, and, on top of that, ample other free parking in close proximity, how could any loss have possibly been caused?
Also, it is clear for a number of reasons that the charge which Highview Parking are trying to levy is effectively a fine (which they are not able to do, rather than any estimate of loss that was actually incurred.
This is why the signage in the car park refers to a parking charge of £85. This appears to be a flat fee that is charged to any user of the car park, regardless of whether any loss is caused or not.
There is no gradation of that, because there is no assessment of loss. For example, someone who parks all day, from 6am until 8pm (12 hours more than they are ‘allowed), on a Saturday, when the car park may be full, is clearly being charged the same sum as someone who arrives at 17:55 on a Sunday and leaves at 8pm on a Sunday, when the car park is deserted, and no shops are open. Because there is no loss, this is being imposed as a fine, and one for which I can not therefore be liable.
To further demonstrate how ridiculous this assessment of loss is with regard to the facts of my particular case.
It is the contention of Highview Parking that the owners of the car park have lost £85 through the car of which I am registered keeper being parked in a bay there.
Suppose, for a moment, that my car being parked there prevented anyone else parking there (that assumes that the car park was full, which it was not).
The rate of loss, from lost revenue, which Highview Parking are claiming, works out at £85 for 31 minutes in this case (again, to be helpful to Highview Parking, this erroneously assumes that breach began at the moment the car entered the car park, and ceased at the moment the car left the car park). This estimate of £85 loss for 31 minutes equates to an hourly rate of income which the owner of the car park anticipates from that one space of £164.51 per hour. On the 14 hours a day which is covered by these parking ’terms’, that equates to £2,303.22 per day. On the 7 hours a day which is covered by these parking ‘terms’, that equates to £16,122.58 per week. On the 52 weeks of the year which is covered by these parking ‘terms’, that equates to £838,374 per year.
Now, especially bearing in mind that this car park is a free car park, servicing the entirety of a town centre in a deprived town in County Durham (in the absence of any clarity on whose customers the car park is for), is it a serious contention from Highview Parking that the average spend accruing from one parking space is at a rate of £164.51 per hour?
Furthermore, bear in mind that any money spent on any land for which Highview Parking have no interest can not be counted in these figures. So, for example, if Highview are working on behalf of the owners of the Victoria Centre (a small centre with a pretty meagre shopping offer comprising budget stores and a number of void properties), and if, for example, only 10% of the people who park here use those shops, then that hourly rate of spend which Highview have allegedly calculated would be £1645.10 per hour. Clearly I do not know on whose behalf Highview operate, because there are no indications of this. But it is very clear that there is no rational basis for assessing loss at these rates.
It is my strong contention that parking in a town centre with ample free parking, in that and adjacent car parks, can not have caused financial loss.
The well advertised flat fee, the ludicrous rates of loss being claimed on the facts of this case, and the lack of any evidence to suggest that any specific calculation has been made in my case, mean that the claim from Highview Parking is unfair and unfounded.
Summary
The key points of my appeal therefore are as follows:
· No contract was ever entered into:
[FONT=&quot]o [/FONT]It was not clear who the contracting party is (and still isn’t);
[FONT=&quot]o [/FONT]No consideration was offered;
[FONT=&quot]o [/FONT]Given the lack of clarity on scope of the ‘contract’ no informed choice on accepting the offer can be made;

· Highview Parking have not demonstrated breach of contract because
[FONT=&quot]o [/FONT]The ‘evidence’ provided by Highview Parking of breach of contract is misleading and ambiguous;
[FONT=&quot]o [/FONT]The ‘evidence’ provided by Highview Parking, at best, demonstrates length of time between entering and exiting the car park – it does not demonstrate breach of the advertised terms of the contract;

· No financial loss was suffered by Highview Parking as a result of the car for which I am registered keeper being parked in a free car park with ample free car parking, in that and other nearby car parks;

· The rates of loss – at £85 per half hour (in this case) – are totally unrealistic in a town centre location with multiple nearby land ownership , and have not been calculated with any reference at all to the actual loss incurred in this case;

· By advertising a flat rate attempted charge on this site, regardless of the length of time spent in a parking bay in the car park, it is clear that this is a penalty / fine which Highview are attempting to charge me for.

Yours sincerely

Coupon-mad

Please don't waste your time sending a 'very soft, brief' appeal to Highview. You need a enough substance to the appeal to hook a POPLA code out of them:

https://forums.moneysavingexpert.com/discussion/comment/62827554#Comment_62827554

And at the same time, complain, complain, complain, to the Store Manager of the Retailer you used or the managing agents of the retail park (Google to find their contact email/number if it's not a single Tesco Store onsite):

http://forums.moneysavingexpert.com/...php?p=62837690

If the Managers don't cancel it then let us know when you get your POPLA code and start reading up about POPLA appeals on the forum now (once you have sent your first challenge, not implying who the driver was of course, as per the first link). These are some POPLA appeal examples to mull over:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

https://forums.moneysavingexpert.com/discussion/comment/62523345#Comment_62523345

You could copy & paste most of both stages of appeal and still win so it's not too difficult or time-consuming and it costs Highview £27 plus VAT to fund you at POPLA stage, for an appeal that is only binding on them, not you!