Highview Parking scam query

brutal_deluxe

Top man! Thanks for going out of your way to do that!

Here is the revised version of which I feel all the main points are there, including cited cases. Let me know what you think and I'll fire it off:

Dear Sirs,

I wish to appeal the parking charge on the following grounds:

1. The charge is not based upon any genuine pre-estimate of loss.
2. Highview Parking do not have the legal standing to offer contracts to drivers nor to bring a claim in their own right.
3. No creditor identity
4. No contract exists
5. The ANPR system is unreliable and neither synchronised nor accurate.

1) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to Highview Parking or the Landowner. The Appellant believes that the charge is not a genuine pre-estimate of loss or is punitive/unreasonable in proportion to the alleged overstay, and should not be enforced.

A full unredacted breakdown is required of how the amount of the charge was calculated solely in relation to this instance. Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss, for example; signage, ANPR maintenance and/or general administration. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. For the record, the alleged contravention was of a duration of thirty one minutes. The Office of Fair Trading has stated that: ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

This Operator has not demonstrated any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. There is no genuine loss being pursued.

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in, had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) Highview Parking is not the landowner and do not have the legal standing to offer contracts to drivers nor to bring a claim in their own right. Highview Parking has failed to provide the contract between themselves and Tesco, containing relevant information which includes the necessary contractual written authority for the issue and enforcement of the Parking Charge Notice.

The Appellant puts Highview Parking to strict proof to provide an unredacted, contemporaneous copy of the contract with the Landowner, which - to demonstrate standing and authority - must specifically state that Highview Parking can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are.

3) No creditor identity. The notice refers to Highview Parking LTD but It has not been disclosed exactly who is making the claim and in what capacity. The Notice to Keeper has not been properly given under POFA 2012, therefore there is no keeper liability.

The Notice to Keeper makes it clear that Highview Parking is relying on Schedule 4 of the Protection of Freedoms Act 2012. Highview Parking has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be Highview Parking or their client, their debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is.....”.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Highview Parking has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'

4) No contract. As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

Unreadable signage breaches Appendix B of the BPA CoP which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit/reflective and repeated throughout the car park, with consistency of restrictions throughout.

The signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there could not have been any contract formed. The Appellant visited the site in question. The only sign observed at this underground car park is ill-lit during any conditions. [ref.pic] It is too high and too small for any driver to read and absorb at eye level, while advancing towards a darkened, tunnel-like entrance.

Positioned at such a height, if noticed at all, it requires a driver to divert his or her attention awkwardly from the road ahead, making it not only unreasonable to expect, but potentially dangerous. Certainly, negotiating a steep ramp down into a busy underground car park with a concealed entrance makes seeing, reading and understanding any ill-placed, ill-lit and otherwise non-compliant sign both unreasonable and potentially dangerous.

The operator has failed to provide any requested evidence of signage, maps or photos on the aforementioned points, specifically showing the height of the signs, where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in, and adequate distribution of ‘terms and conditions’ throughout the site.

5) The ANPR system is unreliable and neither synchronised nor accurate. The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. The Appellant puts Highview Parking to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to this case/vehicle. (The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue). The BPA says: ''As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Highview Parking has failed to show any parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing, nor can they show the car did not leave the site and return.

Duplicate visits are a frequent and recognised trigger for these parking notices.

Congestion at this site is the norm. Entry and exit lay-out means traffic is often reduced to one-way, gridlocked at peak times. The Appellant requires Highview Parking to show that [reg.no.] was not queuing for a substantial period of time.

The BPA accepts that this ANPR technology is flawed, including, but not limited to:
synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks.

The operator appears to use WIFI with an inherent delay through buffering, so "live" is not really "live". Without a synchronised time stamp, there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''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.'' This would include the signs being lit, reflective and repeated throughout the car park, with consistency of restrictions throughout.

Highview Parking failed to operate the system in the required 'reasonable, consistent and transparent manner'. There is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use' and how the Operator will use the data captured by ANPR cameras. In fact, this non-compliant ANPR system is 'farming' data from moving vehicles at the entrance and exit, with the Claimant 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. Therefore The Appellant respectfully asks that this appeal is upheld.

This concludes the appeal.

Guest101

Sorry my bad

brutal_deluxe

Guest101 wrote: »

Sorry my bad

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Coupon-mad

Top man! Thanks for going out of your way to do that!

Ampersand is a top lady, like me!

But your appeal is fine and will beat Highview hands down, long or shorter.

brutal_deluxe

Coupon-mad wrote: »

Ampersand is a top lady, like me!

But your appeal is fine and will beat Highview hands down, long or shorter.

Top lady! You were right!!

*UPDATE* - POPLA WIN!

Reason - No GPEoL (solely that point)

******
I find that the operator has not shown that by exceeding the maximum stay at the site, the appellant at that point caused a loss to the operator or the landowner. The operator has only shown that they incurred the loss as a result of the appeals process after issuing the parking charge notice. In order for a charge to be a genuine pre-estimate of loss, the operator has to show that they at first have incurred an initial loss.

I note that the operator has stated their initial loss to be the loss of revenue at £22. However, the operator has not shown that each customer would spend this amount upon visiting the site. In addition, it is not clear how the amount of £22 was calculated.

Considering carefully, all the evidence before me, I find that as the operator has not shown that they have incurred an initial loss as a result of the appellant exceeding the maximum stay at the site, the charge sought is not a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.
******

Thanks everyone involved!

BD

The_Slithy_Tove

brutal_deluxe wrote: »

I note that the operator has stated their initial loss to be the loss of revenue at £22. However, the operator has not shown that each customer would spend this amount upon visiting the site. In addition, it is not clear how the amount of £22 was calculated.

Even if they could justify £22, which they can't, why do they then demand £70? Surely that is extortion?

brutal_deluxe

Extortion is precisely what it is