Highview PCN-advice on POPLA appeal **updated**

sineapse

Thanks for taking the time to read my thread. Also posting on pepipoo for double the advice!

As the registered keeper, received a PCN from Highview Parking for staying twelve minutes in a permit holders only area that runs on directly from a 90 minute free parking for shoppers car park. This was an ANPR charge notice. The signage was identical in both areas except for a slight change in wording that stated permit holders only. No barriers, markings etc.

Wrote an appeal rejecting to name the driver and disputed the claim using advice from here. Went and took photographs of the area in question and signage at a similar time and date. Received a rejected appeal letter from Highview with a POPLA number included.

Any advice with regards to writing my appeal? I shall base it on signange, no GPEOL, ANPR accuracy, authority to issue PCNs.

Tips, advice, encouragement all greatly appreciated! I am pretty hacked off with the whole situation and the rejection letter added fuel to my fire.

Redx

all dealt with in post #3 of the newbies sticky thread, and as you say , use the usual appeal points

sineapse

Redx wrote: »

all dealt with in post #3 of the newbies sticky thread, and as you say , use the usual appeal points

Thanks Redx. What do you say about including photographs as exhibits in the appeal? Help or hindrance?

Redx

help if it proves your case , hindrance otherwise

sineapse

Please comment on my appeal!

Dear POPLA Assessor,

As the registered keeper of vehicle registration XXXX XXX, I am appealing against parking charge number XXXXXXX using POPLA appeal code XXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCNs
4. Unlawful penalty charge
5. ANPR (Automatic Number Plate Recognition) accuracy
6. ANPR usage
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
8. Non-compliant Notice to Keeper
9. Business rates

1. Non genuine pre-estimate of loss
The amount of £XX demanded by Highview Parking is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. In my original reply to Highview Parking stating that there was no genuine pre-estimate of loss, no answer was received in the subsequent correspondence.

Highview Parking has provided no breakdown of how the sum of £XX has been arrived at based on the alleged parking contravention. I am yet to see how such an extortionate charge is calculated for an alleged twelve minute contravention. As Highview Parking cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.

Given that Highview Parking charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.

2. No contract between driver/Inadequate signage

As a POPLA Assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”. Highview Parking must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place. Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding rather than simply the nominal amount presumably due in a machine on site. The idea that any driver would accept these terms knowingly is perverse and beyond credibility, and so I dispute the existence of a contract between the driver and the Operator.
Having visited the location outlined in the PCN, the signs are patently not clear. On entering the ninety minute stay car park for legitimate shoppers, there runs on directly from this space a permit only parking area. There are no clear and unambiguous markings to notify legitimate shoppers that the parking conditions are changing. There is no marking to accurately demonstrate the point at which the parking conditions change.

As demonstrated in Exhibit X, the two signs are side by side. They are identical in all intents and purposes except for a change in text. As stated by Lord Denning when giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, I contend this was not “ drawn to his attention in the most explicit way. The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.”

3. Flawed contract with landowner/Authority to issue PCNs
The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

Highview Parking does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Highview Parking has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper. I put Highview Parking to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract. I demand Highview Parking produce toPOPLA the contemporaneous and unredacted contract between the landowner and theHighview Parking.

4. Unlawful penalty charge
Highview Parking cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils. Highview Parking could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.

5. ANPR (Automatic Number Plate Recognition) accuracy
Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Highview Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times, it is vital thatHighview Parking produces evidence in response to these points.

In addition to showing their maintenance records, I require Highview Parking to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Highview Parking to strict proof to the contrary.

6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it is stated: '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 carpark must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.'

Highview Parking fails to operate the system in a 'reasonable, consistent and transparent manner'. As Highview Parking uses inadequate signage on arrival, as described in section 2 above, 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, essentially being 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.

7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
Some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. I put Highview Parking to strict proof to provide evidence that it has the necessary planning permissions/consent from the local authorities for the current parking conditions, chargeable regimes and installation of the ANPR cameras that are used on the site in question.

8. Non-compliant Notice to Keeper
The Notice to Keeper sent by Highview Parking to myself is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made. Highview Parking has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

Yours faithfully,

Guys_Dad

Lose heading Business Rates as no paragraph in main body and wasted appeal point.

Umkomaas

Skim read.

This seems to be based on a quite old appeal, for example points 7 and 9 haven't been advocated for the past 12 months - they are not relevant and have never been the basis of any POPLA decision.

Please have another look through the links via NEWBIES sticky to find a more recent example. It is now advised that any option a PPC might have to claim 'commercial justification' (rather than 'breach') is headed off with the following insertion, into the GPEOL paragraph, covering the Beavis case.

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited 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.''

sineapse

Umkomaas wrote: »

Skim read.

This seems to be based on a quite old appeal, for example points 7 and 9 haven't been advocated for the past 12 months - they are not relevant and have never been the basis of any POPLA decision.

Please have another look through the links via NEWBIES sticky to find a more recent example. It is now advised that any option a PPC might have to claim 'commercial justification' (rather than 'breach') is headed off with the following insertion, into the GPEOL paragraph, covering the Beavis case.

Thank you, I will revise it.

sineapse

OPLA CODE xxxxxxxxxx
As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by Highview Parking.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

4. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.

5. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:!

1.!No breach of contract and no genuine pre-estimate of loss

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.!

I require Highview Parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Highview Parking cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. 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 twelve 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 cannot demonstrate 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 which had got over-excited 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.!Contract with landowner - no locus standi
Highview Parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Highview Parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Highview Parking to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.!

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

Therefore, I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Highview Parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Highview Parking cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.!


3.!Notice to Keeper not properly given under POFA 2012 – no keeper liability.
The Notice I have received, as the registered owner of the vehicle, 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.!Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.
I call into question the reliability and compliance of the ANPR system because Highview Parking are relying on two pictures of a vehicle. In these two images, the vehicle registration mark is illegible. Attached below are computerised displays of my vehicle's registration mark, presumably taken by the ANPR system. As the photographic images have illegible vehicle registration marks and Highview Parking is relying on their ANPR system to raise this charge, I require the Operator to present records which prove:

- the Manufacturers' stated % reliability of the exact ANPR system used here.

- the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.!

The Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was!'fundamentally flawed'!as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.!

I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually theexact!time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped accurately, and this is in addition to the missing time/location/number-plate evidence from the second photo. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put Highview Parking to strict proof to the contrary.!

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)!
21.1 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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''!

At this location, there are merely a few small cameras mounted on poles or walls. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. The signage only states “This car park is controlled by ANPR cameras and/or Warden patrols”. No mention is made of what exactly an “ANPR camera” is or what the data will be used for. To a lay person, this is extremely confusing and makes no sense. This means the system does!not!operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.!

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.!


5.!Unclear and non-compliant signage, forming no contract with drivers.

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.”!

Upon entering the car park, there is a sign that states a “one and a half hours maximum stay” for customers only.

Running directly onto the car park, without barriers, road markings, different coloured bays or any other restrictions or notifications, appears to be a permit holders only area. This area is not demarcated in any shape or form. The signage used is unclear to a driver operating a motor vehicle. In fact, the signage for both areas are identicial apart from the wording. This is unfair and clearly an attempt to extort legitimate motorists for unfair charges.
Signage at this car park is in breach of Appendix B of the BPA code of practice on a number of counts. Firstly, the text on the entrance sign to the car park is missing the full wording required from Group 1 wording. The sign states “1 and a half hours maximum stay”. No mention of 'free parking' or 'pay and display' is mentioned and therefore is highly ambiguous as to the actual terms of the park. 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. In this car park the entrance sign and the signs stating a permit holder's only are are so similar that any reasonable person could not possibly consider this a fair attempt at regulating parking..

This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “ drawn to his attention in the most explicit way. The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.”

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

This is a blend of a few templates with some added information myself. Really, the main issues are due to problems with signage. No clear markings to separate the permit holders only area, very sneaky signage with only a change in text, unclear use of ANPR systems. I have some great photos of the signage and areas in question, still deciding whether to include or not. Worth posting them on the forum to see what others think?

Thank you.

Coupon-mad

That version is fine and will beat Highview without any photos needed.

sineapse

Hello all, got an update.

I've received the evidence pack from Highview (19 pages including cover pages etc)

I shall try and summarise the main points here.

Introduction

X is a permit holder's only site and Y does not hold a valid permit for this site. By allowing his vehicle to remain on this site for 12 minutes, in breach of the terms and conditions, Y has
deprived a permit holder from being able to park in their allocated space, this is our initial loss that has caused us to pursue this breach.

Enforcement and the issue of PCNs is recognised as asset protection and as the principal or lease holder of the site it is incumbent on us and part of our contractual responsibility to manage the facility to the best of our ability in order to either generate the maximum amount of revenue possible for the land owner or lease holder or to keep our clients allocated parking clear of fly parkers and for the actual use of those who are entitled to park, be it an office, allocated parking area, retail park or a persons individual parking space or drive way. There are a number of costs incurred in the continuous enforcement process that are a necessity in making sure drivers adhere to the parking T&Cs advertised and the chasing up of any outstanding and unpaid PCNs.

In parking Eye v Beavis and Wardley, HHJ Moloney states "if breach without compensation became widespread the business would plainly suffer, both because the Operator] would have no income and because its 'suppliers'the landowners would not achieve their commercial objectives. In such circumstances it would be permissible to specify a proportionate (not extravagant) sum as compensation for each individual breach even though it bore no direct relationship to the loss caused by that one breach."

That said, the table below outlines and details the costs that we estimate, at the time of issuing the PCN, would be incurred should a breach arise at this site.

Here is a wide variety of misc costs including printing, postage etc.

But then is included:

Cost of appeals executive including Employer's NI to respond to appeal: £11.83

"Cost of Compliance Co-ordinator including Employer's NI to administer the POPLA Appeal, collate required information, build, print sign off and send POPLA evidence pack. £68.07!
"

**How can this be considered in a pre-estimate of loss; that is, to include appeals costs, when a PCN has been issued!!**

We also note that Y does not offer any evidence as to why he believes the Charge to have exceeded the appropriate amount; he simply states that in his opinion it does. We contend that that the
burden of proof lies with the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate.

Determining Costs

A section then follows explaining why it is not practicable for Highview Parking to leave damages 'at large' and not to calculate them on a case by case basis. A chapter from a book by Chitty is extracted.

Business Model

A parking management business comprises of a number of elements and the element that requires the most resources is enforcement of the parking terms and conditions of a car park. Our business model does not rely on the issuing of Parking Charge Notices but rather On the management of parking facilities and where parking charges apply, protection of income.

This sum,and the calculations which have been made in setting it,has been approved and agreed by the landowner
and/or his agent of the site. We have provided clear evidence that by staying at the location,the motorist has accepted all of the prevailing terms and conditions of the parking contract including the charges for breach of that contract. There are a large number of signs at the parking location,both at the entrance and throughout the site which offers the parking contract to the
motorist,and sets out the terms and conditions of the parking area upon which the Operator will rely,and upon which,by remaining at the location,the motorist has agreed to be bound by― these terms and Conditions clearly show the amount which will become payable if the terms and conditions are breached. We、would contend that it is too late now for the appellant to indicate their unhappiness with the parking charge― this should have been done as soon as they saw the clear and ample signs that stated the parking terms and conditions and charges at the location_if the appellant was not prepared to pay such charges and was unhappy with the contract
terms,they should not have remained at the location.

Signage

A short section follows stating that the signage is compliant with DOT guidelines and meets minimum lux lighting values. No rebuttal is offered to the points made about clear signage on my appeal.

End:

Ends with a paragraph stating I did not at any time deny that I was the RK or driver, no mitigating circumstances were offered and that the PCN was not offered under POFA so that is irrelevant.

Appendices

These are full of copies of correspondence and some photographs of the car park (in winter) and of signage in the car park.


Thoughts?