Parking Charge Advice - Highview Parking

totallytech

Hey All,

I've received a parking charge from Highview Parking showing that on 9th April I was parked between 19:28 to 22:48 which is longer than the 2 hours allowed in the terms and conditions displayed on the signage.

The charge notice is dated 23rd April but did not arrive with me until 25th April.

I've emailed them with:

Dear Highview Parking Ltd

PCN number 0566140409038
As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass

Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

- the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

- if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

(c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

Yours,

Me

I've also become aware of the 14 day notice period but I'm not sure if this applies as they only wrote the letter on the 14th day but was not delivered until the 16th day....

Should I also follow up with an email regarding the 16 day notice?

or should I just wait until they reply to my letter above with the POPLA details and then also include the 16 day info with the POPLA appeal?

totallytech

This is the guidance on the 14 day rule... my 16 days also includes weekends though...

Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.


A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either

(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
(Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

The way I read this, the letter is dated 23/04/14 (Wednesday) which according to the above guidance means it is delivered on 25/04/14 (Friday) which is the 16 days....the weekend working day info is only for the delivery of the letter not for the 14 days?

totallytech

Hi Guys,

I've just drafted an email to the store manager of HobbyCraft Norwich - one of the retail outlets that use this car park...

Dear Sir/Madam,
I arrived at your store on 9th April at around 19.35 and stayed for approximately 20 minutes looking for some new “really useful boxes” (after purchasing around 15 of the 10L boxes a few months ago) I left just before the store was closing and then I went over to the riverside complex for some tea.
I have received communication from a parking company called Highview Parking Ltd, stating that as I stayed for more than 2 hours I was being issued a “charge” for £70. Obviously I do accept that I should not have stayed in the car park once I left your store but felt that as I am a regular visitor to the retail area and a regular customer of yours that it wouldn't be an issue.
I am wondering if there was any way you could arrange for this parking ticket to be cancelled as obviously it will now make me wary of visiting any of the stores in that retail area, especially as there are many other companies in Norwich that are just as easy to visit.
Kind Regards
Me

Do you think this sounds polite enough? Have I used the correct wording etc?

Coupon-mad

As far as Highview are concerned you have said enough in the first appeal, so wait for their reply. And yep, try complaints to various Store Managers - even the Stores you only browsed in (you know you did!) but I would do it in person if you can - take the offending fake PCN with you and complain (that letter is a bit too polite!).

totallytech

How long do Highview have to respond to my appeal?

bod1467

They should acknowledge within 14 days and inform their decision within 35 days (per the BPA code of practise, assuming they're BPA members).

totallytech

bod1467 wrote: »

They should acknowledge within 14 days and inform their decision within 35 days (per the BPA code of practise, assuming they're BPA members).

Thank you - They are indeed BPA members, I've been re-reading the other threads etc as I remember reading the length of time to allow info etc, but for the life of me couldn't find any details! Time to walk away from the screen and grab a coffee

totallytech

Hi Guys,

I've just received this:

Dear Sir,

Thank you for your correspondence concerning your Charge Notice.

This PCN was issued legally and correctly according to the British Parking Association Approved Operators Scheme.

In light of the fact that you have made no attempt to present any mitigating circumstances relating to this charge, we can confirm that your representations have been carefully considered and rejected.

We can confirm that we will hold the charge at the current rate for a further 14 days from the date of this correspondence, after which the full amount will be due.

Yours faithfully,

Highview Parking Limited



Although we have now rejected your appeal, you may still have recourse to appeal to Parking On Private Land Appeals (POPLA), an independent appeals service. POPLA will only consider cases on the grounds that the Parking Charge exceeded the appropriate amount, that the vehicle was not improperly parked or had been stolen, or that you were otherwise not liable for the Parking Charge. To appeal to POPLA, please go to their website popla.org.uk and follow the instructions. If you would rather deal with this matter by post, please contact our appeals office and we will send you the necessary paperwork.

Your POPLA reference code is XXXX

Please note that if your appeal does not relate to the above criteria or is rejected by POPLA for any reason, you may be requested to pay the charge at the full amount and will no longer qualify for payment at the reduced rate.

So I'll be contacting POPLA shortly but I'm wondering if I now also need to notify POPLA of the failure to inform me within the 14 days of the alleged offence?

I'm thinking something like this:

POPLA Reference Number:
Vehicle Reg:
PPC: Highview Parking Ltd.
PCN Ref:
Alleged Contravention Date & Time: 09/04/13
Date of PCN: 23/04/13

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 Riverside Retail Park A. This issue date on the invoice is 23/04/13.

As the registered keeper, 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. Unlawful Penalty Charge
5. ANPR Accuracy
6. Business Rates
7. Summary

1. Charge not a genuine pre-estimate of loss
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.


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 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.
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. 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.

6. 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.

7. 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 Riverside Retail Park A 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.

8. 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

I also would like to raise the issue of the 14 days after the offence.... I was notified 16 days after the alleged offence, but I'm unsure as to the relevant sections to quote? Can anyone help me please?

This is the Section:

Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.


A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either

(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
(Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

I'm thinking something like:

With reference to Schedule 4 paragraphs 8(5) or 9(5) - this specifies the time limits for serving a Notice to Keeper. As the registered keeper was notified on the 16th day, this is in breach of the regulations.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

Also, What are the grounds of my appeal with regards to the tick box option on popla?

I was not improperly parked.
The parking charge (ticket) exceeded the appropriate amount.
The vehicle was stolen.
I am not liable for the parking charge.

I'm thinking I could tick all except the vehicle was stolen except in reality I was improperly parked according to their rules... I was also liable for the charge (although they have yet to prove I was the driver) and the parking charge is what they state so I'm wondering what I can tick?

bod1467

I haven't read your whole post ...

On the subject of the 14 days lack of acknowledgement - don't bother, it's a waste of words as POPLA won't care.

We suggest NOT including business rates - again POPLA won't care.

Appeal reasons are ALL of them except stolen.

totallytech

Excellent,

So just a standard:

POPLA Reference Number:
Vehicle Reg:
PPC: Highview Parking Ltd.
PCN Ref:
Alleged Contravention Date & Time: 09/04/13
Date of PCN: 23/04/13

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 Riverside Retail Park A. This issue date on the invoice is 23/04/13.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. The amount of the charge is disproportionate
3. No authority to levy charges
4. No Creditor identified on the Notice to Appellant
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Summary

1. Charge not a genuine pre-estimate of loss
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.

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 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.
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 authorisation 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. 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.

6. 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.

7. 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

Do you think this is enough to win the appeal?

bod1467

The BPA code of practice states: The BPA Code of Practice states:

So good they state it twice?

Otherwise that's a sure-fire winner.