Highview Parking: help with appeal letter to POPLA

descrownes

I as the registered keeper received a 'charge notice' from Highview Parking, with pictures of my car showing entry and exiting Tesco Woolwich on 14 October 2013. According to them, that totals 4 hours 4 minutes and they demanded £70 (£40 if paid within 14 days) instead of maximum stay of 3 hours.
I followed their appeal process stating there was no evidence that the car was parked at location (only entry and exiting), and that the car might have been moved out of the location more than once during that time (which was indeed was happened - but Highview parking provides only the two sets of images above). I also queried the £70 as not proportionate, even if the car has overstayed by one hour at a free car park. Note, not once did I mention who was driving, only that I was appealing as the Registered Keeper, to whom they wrote in the first instance.
Yesterday, I received their response, rejecting my appeal and citing no mitigating circumstances. Note: I did not claim any mitigating circumstances.
I am now appealing to POPLA and have drafted the letter below. I would be grateful for any assistance with the letter. I have adapted points from other letters on the forum. Thanks a lot.
===
[FONT=&quot]POPLA Reference Number:
Vehicle Reg:
PPC: Highview Parking Ltd.
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN: 25 October 2013

I as the registered keeper received an invoice from Highview Parking Ltd. requiring payment of a charge of £70 (discounted to £40 if paid within 14 days) for the alleged contravention of exceeding the duration of maximum stay permitted at TESCO Woolwich Extra 6785. This issue date on the invoice is 25 October 2013.

As the registered keeper, I would like to appeal this notice on the following grounds:[/FONT]
[FONT=&quot]1 Charge not a genuine pre-estimate of loss
2 No authority to levy charges
3 No Creditor identified on the Notice to Appellant[/FONT]
[FONT=&quot]4. Signage
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Business Rates[/FONT]
[FONT=&quot]8. Summary[/FONT][FONT=&quot]

1. Charge not a genuine pre-estimate of loss[/FONT]
[FONT=&quot]The demand for a payment of £70 (discounted to £40 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states: The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I require Highview Parking Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

[/FONT]
[FONT=&quot]2. The amount of the charge is disproportionate[/FONT]
[FONT=&quot]The amount of the charge is disproportionate to the loss incurred (off which there is none as this is a free car park) by Highview Parking Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because being a free car park it is impossible to pay for any overstay. There can have been no loss arising from this incident. Neither can Highview Parking Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking, as the parking meter rate in the corresponding area is £2.50 per hour. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.[/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.

[/FONT]
[FONT=&quot]3. No authority to levy charges[/FONT][FONT=&quot]
A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. Highview Parking Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles Highview Parking Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the Highview Parking Ltd. to strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the Highview Parking Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the Highview Parking Ltd.[/FONT] [FONT=&quot]Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Highview Parking Ltd. and the owner/occupier, containing nothing that Highview Parking Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot]
4. No Creditor identified on the Notice to Appellant[/FONT]
[FONT=&quot]Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Highview Parking Ltd. Ltd., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.[/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot]
5. Signage[/FONT][FONT=&quot]
The sign at the entrance to the car park is positioned on a pole on the passenger side of a standard right-hand drive vehicle. This makes the sign difficult for a driver to see from inside the car, regardless of which side of the road the entrance of the car park is approached from. It is also difficult to view this sign without impeding the flow of traffic and pedestrians behind. I enclose photograph that demonstrate the entrance signage. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background”.[/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed

6. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.[/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. ANPR Accuracy
Highview Parking Ltd. are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Highview Parking Ltd. to present records as to the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times – it’s vital that Highview Parking Ltd. produce evidence in response to these points.

8. Business Rates
As this car park is now being used for the purpose of running a business by HIGHVIEW PARKING LTD., which is entirely separate from any other business the car park services, and generates revenue and profit for HIGHVIEW PARKING LTD., I do not believe that HIGHVIEW PARKING LTD. has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put Highview Parking Ltd. to strict proof that they have so registered the business they are operating at TESCO Woolwich Extra 6785 car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]9. Summary[/FONT]
[FONT=&quot]On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Yours faithfully[/FONT]

Coupon-mad

Can't go wrong with that - it will beat Highview. Nice draft POPLA appeal.

You can also complain to the Store Manager at Tesco and see if it's him or POPLA that cancels this first!

Guys_Dad

GOOD APPEAL.

See if there is anything here you want to add - particularly witness statement point.

https://forums.moneysavingexpert.com/discussion/4816165

descrownes

Thanks C-m!

descrownes

Guys Dad, this is also very helpful. Thanks.

descrownes

Thanks to all who helped. POPLA heard the appeal case yesterday and informed me of their decision a few minutes ago: We won against Highview Parking Ltd!

The Operator issued parking charge notice number XXXXXXXXXX
arising out of the presence at Tesco Woolwich Extra, on DATE, of a vehicle with registration mark XXXXXXX.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.
Reasons for the Assessor’s Determination
The Operator submits that the parking charge notice was issued for
exceeding the maximum stay. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
It is the Appellant’s case that;
- the charge sought is not a genuine pre-estimate of loss,
- the Operator has no authority or legal standing over the land in question,
- no creditor was notified on the notice to keeper,
- ANPR was not accurate, and
- the charge is a Penalty.
Membership of the Approved Operator Scheme does require the parking
company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement.
This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.
The Operator has not produced any evidence to demonstrate that it is the
land-owner; or, that it has the authority of the land-owner to issue parking
charge notices at this site. Once the issue is raised by an Appellant, it is for the Operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.
Consequently, I must find that the Operator has failed to produce sufficient evidence to refute the Appellant’s submission that it did not have authority to issue a parking charge notice.
I need not decide on any other issues.
Accordingly, I must allow the appeal.
Marina Kapour
Assessor

Umkomaas

An excellent POPLA appeal descrownes, followed by a very predictable, yet nonetheless welcome, win for you, helping us to maintain our 100% record.

Well done!

Coupon-mad

Well done!

teejaybee

I'm sure that my initial appeal, using template found here, will be rejected. So thanks in advance for your POPLA template. I was hit today for a charge for a free parking site, so here goes

ryan3067

I wrote to High View Parking on behalf of my sister regarding a charge notice received on a car park in Hanley, stoke on trent. After they refused to back down I used the template letter posted on here and took my appeal to POPLA and today I got this response.

"The appellant made a number of representations, but I need only deal with the one upon which I am allowing the appeal, which is that the operator lacks authority from the landowner for their activities.
The operator rejected these representations, stating on the authority issue that they had authority from the landowner for their activities.
Considering the evidence before me, I find that the operator has produced what purports to be a witness statement confirming that the operator has the authority of the landowner for their activities in issuing and enforcing parking charge notices in respect of the land. However, the statement is contradictory in that it states both that Paul Walters is the landowner and that he is acting for and on behalf of Urban Space Parking. This means that I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid."

Just wanted to post this on here in the hope it might help others.

Redx

well done

please post the details here in the DECISIONS thread https://forums.moneysavingexpert.com/discussion/4488337