Highview ANPR charge notice, Fforrest Fach, Swansea

mctaggart

My vehicle has been caught by a Highview ANPR camera for overstaying in a private car park in Wales. I am the registered keeper and owner of the vehicle but I was not driving it that day, its not clear who was driving either as family were over from California so it could potentially be 2 other people, pictures are not clear enough to identify either.

The ANPR recorded the overstay at xxxxxx, the letter is dated the 19/5/2014 and it arrived in the post on the 24/5/14.

After reading the newbie guide I take it at this point i have to send off the standard appeal letter in the newbie guide.

Is below correct for my circumstances? Just to note this was an ANPR charge notice i had in the post and not a sticker on the car.

Dear HighView

PCN number xxxxx

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,

Craig McTaggart

Dee140157

Please remove PCN number from your post as it could be used by company to identify you. Also remove the very specific timings etc too.

Small change to point 2:

2) Your signage does not comply with your BPA Code of Practice and was not sufficiently prominent to create any contract

You could add another point

4) Finally Highview is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of BPA's Code of Practice. Having since visited the site, I contend that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code. In addition I question the entire reliability of the system.

Coupon-mad

Yep that template is the one and Dee's suggestion is a good addition too, under the circumstances.

mctaggart

Brill i will get that off in the post with the relevant proof of postage

da_rule

Maybe change point 2 wording to '....the BPA Code of Practice' rather than 'your BPA'.

mctaggart

Hello

I have now received my standard decline letter and I now have my POPLA code

What is the next stage i have to do?

Thanks

Craig

Coupon-mad

Click on 'How to win at POPLA' in post #3 of the NEWBIES thread. Draft your own version & show us!

mctaggart

POPLA Reference Number:
Vehicle Reg:
PPC: Highview Parking Ltd.
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN: 10/5/14

I as the registered keeper 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 Fforrestfach. This issue date on the invoice is 19th May 2014.

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 £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 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 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. 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 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.

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

Coupon-mad

Yes - that was quick, good work! Except get rid of business rates as that's an oldish template and we no longer use that (not within POPLA's remit).

mctaggart

Ok sent it off will let you know the response Fingers crossed

mctaggart

Yes, as predicted I won my case against highview using POPLA, won on the basis that because the car park was free, there was never any loss to the company who issued the ticket.

Thank you all who helped

Craig