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Highview Parking PCN - Still a bit confused

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Hi all,

Have received a PCN for an alleged parking infringement from Highview Parking. Ironically, this was issued while the car was parked as the RK was on Jury Duty, AND a ticket was purchased for sufficient time spent there (however, it's now lost). I've read the Newbie thread on appealing, but not sure what to put in the initial appeal letter. The template in that thread says:

Want a copy & paste template appeal that works?
Thanks to HO87 for this short version, suits all cases:


I refer to the above notice which I appeal against, as keeper of the car, on the following grounds:

a). The sum sought does not represent a genuine pre-estimate of yours or your principal's loss.
b). The signage on site is deficient and fails to comply with the British Parking Association's Code of Practice, Annexe B.
c). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
d). Your notice was deficient and fails to comply with Schedule 4, Protection of Freedoms Act.

Please uphold this appeal or send a rejection letter so I can escalate this matter to the independent service offered by your Trade Body.

Yours faithfully

But I'm not sure if those clauses actually apply or should be included. Is it better to just go with that template or mention the fact that the 32 minutes they're trying to steal £50 for were actually covered by a ticket?

Thanks for any advice.
Dan
«13

Comments

  • Fruitcake
    Fruitcake Posts: 59,463 Forumite
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    edited 20 September 2014 at 2:39PM
    The template letter is a tried and tested part of the MSE 100% PoPLA wins process developed and proved over a long period.


    If it isn't broken, don't fix it. Mitigation does not work in the appeals process so whether you bought a ticket or not is irrelevant.


    Use the template as it is and then let the PPC prove the opposite. Don't do their work for them.


    The appeal will be rejected anyway but the whole point of the first appeal is to get the PoPLA code that you use with the How to Win at PoPLA template in the NEWBIES thread.
    I married my cousin. I had to...
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  • DJBenz
    DJBenz Posts: 52 Forumite
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    Fruitcake wrote: »
    The appeal will be rejected anyway but the whole point of the first appeal is to get the PoPLA code that you use with the How to Win at PoPLA template in the NEWBIES thread.

    Thanks, that makes it clearer. Will send off the template and keep this updated. :)
  • Fruitcake
    Fruitcake Posts: 59,463 Forumite
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    edited 20 September 2014 at 3:05PM
    DJBenz wrote: »
    Thanks, that makes it clearer. Will send off the template and keep this updated. :)


    No worries. Be careful how you word the appeal though. If you say the RK was on jury service you will have effectively said the RK was the driver and therefore outed yourself.


    Use terms like, the driver was on jury duty not, I was on jury duty or, the RK was on jury duty.


    When you get the inevitable rejection letter it should have a PoPLA code. This can be checked on the Parking Cowboys website to ensure it is genuine. Some underhanded PPCs allegedly send duff codes or don't include a code at all. If that happens you complain to the DVLA and BPA, and then write to the PPC telling them you have done so, and then demand a genuine PoPLA code.


    When the time comes, post up your PoPLA appeal on this same thread using the NEWBIES template for the experts on here to give it the onceover before you submit it.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • DJBenz
    DJBenz Posts: 52 Forumite
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    edited 20 September 2014 at 8:38PM
    Fruitcake wrote: »
    No worries. Be careful how you word the appeal though. If you say the RK was on jury service you will have effectively said the RK was the driver and therefore outed yourself.


    Use terms like, the driver was on jury duty not, I was on jury duty or, the RK was on jury duty.

    Thanks again, but you said that mitigation doesn't work, so do I even need to mention the jury service, the fact a ticket was paid for or just copy the template?

    So far I've just gone with the following:
    I refer to the above notice which I appeal against, as keeper of the car, on the following grounds:


    a). A parking payment was made on the day by the driver to cover the full duration of the parking.
    b). The sum sought does not represent a genuine pre-estimate of yours or your principal's loss.
    c). The signage on site is deficient and fails to comply with the British Parking Association's Code of Practice, Annexe B.
    d). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
    e). Your notice was deficient and fails to comply with Schedule 4, Protection of Freedoms Act.

    Please uphold this appeal or send a rejection letter so I can escalate this matter to the independent service offered by your Trade Body.
  • Dee140157
    Dee140157 Posts: 2,864 Forumite
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    It's fine to mention it. But as you have no evidence, eg a ticket, then it won't make a lot of difference.

    Send it off and wait for rejection and a POPLA code to pop through your door. (Or not as this is Highview, who you may have to battle for a POPLA code, but that is usual too!)
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • Coupon-mad
    Coupon-mad Posts: 151,906 Forumite
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    DJBenz wrote: »
    But I'm not sure if those clauses actually apply or should be included.
    Same query as this person had:

    https://forums.moneysavingexpert.com/discussion/5065434

    As others have said, just follow the tried & tested templates and it's at POPLA stage where you will need to adapt an example to suit.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • DJBenz
    DJBenz Posts: 52 Forumite
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    Hi folks,

    Thanks for the advice so far. Received the inevitable rejection of appeal from Highview today, which you can see by clicking the link below (personal details removed).

    ODCJbB2s.png

    For the POPLA appeal I was planning on going with:

    1. NGPEOL
    2. Non-compliant NTK (Creditor not stated)
    3. No contract with land-owner
    4. ANPR

    I was going to dispute signage as per the initial appeal, but as the car park is a fair hike from where I live I'm not sure I'll be able to visit and get specifics of their notoriously poor signage.

    Any advice gratefully received while I'm drafting up the POPLA response.
  • DJBenz
    DJBenz Posts: 52 Forumite
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    OK, so here's a POPLA appeal that I have adapted to my own case.
    Dear Sirs,

    Re: POPLA CODE [removed]

    As the registered keeper of the vehicle, registration number [removed], I wish to appeal against the parking charge issued by Highview Parking Ltd..

    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 Ltd. to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Highview Parking Ltd. 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 32 minutes at a time when the driver noted that the car park in question was at an estimated 25% of capacity. 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.''

    Highview Parking Ltd. 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 Ltd. do not own or have any interest or assignment of title of the land in question. As such, I do not believe that Highview Parking Ltd. 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 Ltd. 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 Highview Parking Ltd. Ltd's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Highview Parking Ltd. 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 Highview Parking Ltd to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Highview Parking Ltd. 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 Ltd. is relying on Schedule 4 of the Protection of Freedoms Act 2012. Highview Parking Ltd. 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 Ltd. 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 Ltd. 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 Ltd. 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 Ltd. 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.

    Highview Parking Ltd. 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 Ltd. 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.
    And then I also have this for the signage, although this specifies details about a particular case (not mine). Could I adapt this by taking out the specifics and leaving the rest in?
    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 identical 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.
  • Coupon-mad
    Coupon-mad Posts: 151,906 Forumite
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    edited 4 October 2014 at 11:55PM
    Yes you can certainly adapt that signage point as it's a good example. You must always have 'unclear signage' as an appeal point and you don't have to check the signs yourself (it's not for you to 'prove' what you are saying at POPLA, it's for the PPC to rebut if they can).

    There is more wrong with a Highview PCN than just a lack of a creditor. Have a look at the G24 example POPLA appeal in the Newbies thread post #3 'How to win at POPLA' which I have suggested is also suitable for Highview (their PCNs are similar). G24 (NOT Highview, so don't panic) have just moved to the IPC but at the moment that example POPLA appeal is useful for people to copy/adapt for any G24 POPLA appeals and for any Highview ones. The NTK is missing a 'period of parking' as it shows no parking time (only a car in moving traffic at the entrance/exit which could be 20 minutes or more out on a busy day where cars have to queue for spaces). The NTK is also missing a description of the parking charges which remained outstanding - unpaid by the driver - the day BEFORE the NTK was issued; in other words any tariff not paid (if 'none' then the POFA makes it clear the NTK still has to describe them, there's nothing in the POFA about not describing the 'unpaid charges' and it cannot be the PCN amount as that is invoiced later...).

    You should also quote this POPLA decision in that critique of a Highview NTK, as balders974 has given newbies his actual POPLA code 2922064001 to quote as well as the named POPLA Assessor's words, so quote this case:

    https://forums.moneysavingexpert.com/discussion/comment/66583645#Comment_66583645

    And in your first point about no GPEOL, make sure you add some sentences to 'rebut in advance' Highview's recent generic GPEOL statement which is mentioned in the decision here:

    https://forums.moneysavingexpert.com/discussion/comment/66650417#Comment_66650417

    In other words you would be wanting to say you believe that Highview will use a newly written GPEOL statement with vague heads of cost described as 'overheads' and too many 'checks and balances' alleging hours of Management time spent checking other staff's work. This is far too many layers of staff costs to be fair, and it is a spurious statement of 'actual costs' rather than demonstrating the charge was based on a GPEOL. Especially when the staff costs & ridiculous Management hours they have made up for 'dealing with a POPLA appeal' cannot be in the reasonable contemplation of the Operator at the time of issuing every PCN, because less than 2% of cases ever go to POPLA. People who don't appeal and who stupidly pay the charge at full rate, cannot be liable for the cost of a POPLA appeal for the tiny minority, yet that is what Highview are trying to suggest makes up the total.
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  • DJBenz
    DJBenz Posts: 52 Forumite
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    edited 5 October 2014 at 5:01PM
    Coupon-mad wrote: »
    There is more wrong with a Highview PCN than just a lack of a creditor. [...] The NTK is missing a 'period of parking' as it shows no parking time (only a car in moving traffic at the entrance/exit which could be 20 minutes or more out on a busy day where cars have to queue for spaces).

    The NTK does have a 'Duration' though, is this different from the 'period of parking'? I'm guessing so, as it's simply the difference between the recorded 'in' and 'out' times. Scan below:

    69CxObIs.png

    Will read and adapt the other stuff you've suggested, thanks.

    Actually, looking at the NTK dispute for G24 I'm even more confused!
    (A) The 'period of parking' is not shown, only the time of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));

    As above, it has a duration

    (B) It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c))

    Not even sure what this means. Had NTK only, no notice on windscreen which I think is what this is referring to?

    (C) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 para 8(2)(d));

    It says they don't have evidence sufficient parking payment was made.

    (D) It does not identify the creditor (as required by POFA 12 Schedule 4 para 8(2)(h)).

    OK with this

    (E) The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 para 8(2)(i)).


    It has a 'Date of Notice' - Is this sufficient?
This discussion has been closed.
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