Parking Fine Fforest-fach Swansea (Highview)

fisherjim

And you can tick three of the four reasons, leave out the car has been stolen one!;)

Cezly

lol, will do

Cezly

Phew, busy week but got this sorted, I need to clarify a bit with the signage, going to get pictures to support this weekend. If its OK, I would like to get this off on Monday. Have added a few tweaks to fit the situation and not sure about point 10 being valid. Would really appreciate a check though by the experts

Thanks



I as the driver, received an invoice from Highview Parking Ltd. requiring payment of a charge of £85 (discounted to £50 if paid within 14 days) for the alleged contravention of exceeding the duration of maximum stay permitted at Parc Fforestfach Retail Park, Swansea (SA5 4BA). The issue date on the invoice is 23 April 2014.

As the driver, I would like to appeal this notice on the following grounds:
1 Charge not a genuine pre-estimate of loss
2 No authority to levy charges
3 No Creditor identified on the Notice to Appellant
4. Signage
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Business Rates
8. ANPR usage
9. Business Rates
10. Deliberate misinformation
11. Summary

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £85 (discounted to £50 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.



2. The amount of the charge is disproportionate
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 parking, which is £6.00 per day, or the parking meter rate in the corresponding areas which per hour is £1.20 or a four hour stay is charged at £4.50. I would question that if a charge can be discounted by £35 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


3. No authority to levy charges
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 authorisation 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. 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.




4. No Creditor identified on the Notice to Appellant
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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. Signage
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 is positioned on a tight corner leading off a mini roundabout which has a high volume of traffic flow emerging from the drivers right side. 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 as drivers must check their right as they enter the mini roundabout 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”.
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.
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. ANPR usage - Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'

Highview fail to operate the system in a 'reasonable, consistent and transparent manner'. As Highview place signs in positions which drivers fail to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

9. 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 Parc Fforestfach Retail Park, Swansea (SA5 4BA) 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.

10. Deliberate misinformation from Highview.
In its rejection letter, Highview deliberately and clearly states that POPLA appeals may only be considered on the following points. 1: That the parking charge exceeded the appropriate amount, 2: That the vehicle was not improperly parked or had been stolen or 3: that the person was not liable for the parking charge. Highview further states that appeals not relating to any of the above stated criteria or if rejected, then the full charge will be applied.
I put that Highview is clearly misleading and intimidating appellants into only justifying weak points of appeal to POPLA, in order to maximise their chances of having a PCN upheld.

11. Summary
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.

Yours faithfully

Cezly

Im not sure if this is relevant, but this car park was recently featured in a TV show which deals with consumer rights etc. A high volume of complaints had been received regarding the number of fines etc. As a result, Highview increased its time limit from three to four hours. Highviews letters on the other hand, do not state how long the vehicle has over stayed by, it simply refers to terms and conditions on the signage..

Stroma

Was it on xRay? Have they increased it on both sides of the retail park as they haunt Tesco as well?

Will read you popla appeal now

Stroma

I would lose 9 and 10 if I was you, I have skim read the rest and it will win an appeal at popla

Cezly

Hi Stroma

Either X-ray or the ferret. My wife checked last month and apparently the prices on both sides are different. She also said it has a different set of signs which do not say highview but when she asked the sore manger, he stated that they were however, still highview just as next door. Is it worth me checking that out?. Thanks for the help again

Stroma

They are both highview, but with different signs, and different amounts, but I ain't been there in a couple of months and noticed. Its no point going there unless you happen to be shopping as you have a winning appeal above, popla will not consider this on images imo

Cezly

I am going there tomorrow to pick up some shopping. Will take a quick look. I will remove the part about the images regarding signs included in the Appeal and get it sent off. Whats the best way to do this to POPLA, post the appeal as a letter or simply enter it onto their Website.

Thanks Stroma

Stroma

Personally I would do both, but do the electronic way first if you get no auto response send via mail as well