New POPLA appeal

Jonah81

please could you have a look at the below. this is my appeal to POPLA for a parking charge in relation to HIGHVIEW Ltd



[FONT=&quot]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, NORWICH on 18th March 2014. This issue date on the invoice is 31st March 2014.

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[/FONT]
[FONT=&quot]2 The amount of the charge is disproportionate
3 No authority to levy charges
4 No Creditor identified on the Notice to Appellant[/FONT]
[FONT=&quot]5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Business Rates[/FONT]
[FONT=&quot]8 PCN received by registered owner after 14 days from the alleged offence[/FONT]
[FONT=&quot]9. 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]
[/FONT][FONT=&quot]
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.[/FONT]
[FONT=&quot]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, NORWICH 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]8. PCN received by registered owner after 14 days from the alleged offence[/FONT]
[FONT=&quot]The alleged offence took place on 18/03/14. The PCN was dated 31/03/14. The registered owner did not receive the notice (by post) until 03/04/14 which is OUTSIDE the relevant 14 day period.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Sub section 4 to subsection 6 of Section 9 of Schedule 4 of POFA 2012 states;[/FONT]
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) 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.

[FONT=&quot]With all this in mind if the PCN date of issue was indeed 31/03/14 and that if it was posted on that day, then it would be presumed to have been delivered on 2/04/14. As the alleged offence took place on 18/03/14, then this date (presumed date of delivery 02/04/14) is ALSO OUTSIDE the 14 days which is classed as the relevant period. [/FONT][FONT=&quot][/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed[/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. And therefore I appeal to you to withdraw the penalty notice sent to the registered owner and dismiss the charge.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Yours faithfully,[/FONT]
[FONT=&quot] [/FONT]

Coupon-mad

Yep you have all the usual points there - you don't need 'Business rates' though (old template). This needs merging with your thread.