Highview Parking Charge Notice

erind

I have added some additional points in red, and feel that this covers everything. I am ready to submit my appeal but want to ensure I have got this right. Any help much appreciated. Thanks

Popla reference number: …………………………….

Dear POPLA Assessor,

As the registered keeper of the vehicle, ………………….. I wish to appeal against the parking charge issued by Highview Parking Ltd..

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. The signage was not compliant with the BPA Code of Practice
3. No Clarification as to whether the Charge is for Breach of Contract or Trespass
4. No authority to levy charges
5. No Creditor identified on the Notice to Keeper
6. Unlawful Penalty Charge
7. ANPR Accuracy
8. 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:
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.
(as the vehicle was allegedly parked late in the evening, in an almost empty ‘free car park’, with only one store open, I don’t see how this charge can be a genuine pre-estimate of loss?)

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.
Neither is this charge ‘commercially justified’. In answer to that proposition from a PPC which had got over-excited about the Parking-Eye 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 court, 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. The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Highview Parking Ltd and the driver

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Highview Parking Ltd are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Highview Parking Ltd have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.

3. No Clarification as to whether the Charge is for Breach of Contract or Trespass

Highview Parking Ltd. Have not stated in their Charge Notice whether this charge is for "Breach of Contract" or Trespass, and only that the charge is for "Violation of the Terms and Conditions displayed on the signage". Of which they have not enclosed a copy with the Charge Notice, Therefore Highview Parking Ltd have failed to show keeper liability under Schedule 4 paragraph 9(2)(c) of the Protection of Freedoms Act 2012 as this states the notice to keeper must describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose, (including the means by which the requirement was bought to the attention of the drivers) and the other facts that made them payable.
4. No authority to levy charges
A parking management company will need to have the proper legal authorisation 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 it to Highview Parking Ltd to provide strict proof to POPLA that they have the necessary legal authorization at this location and I demand that Highview Parking Ltd produce to POPLA the contemporaneous and unredacted contract between the landowner and 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.

5. No Creditor identified on the Notice to Keeper

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.
In addition to the above whilst the Notice to Keeper does specify the outstanding amount of the parking charge it does not specify the maximum additional costs that Highview Parking Ltd may seek to recover.

6. 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.

7. 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.

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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully

Coupon-mad

If that was a free car park and you've never said who was driving then you will win, either on the fact there was no loss or the fact the NTK fails to ID the creditor.

That's fine, submit it and tick all appeal boxes except 'stolen car'.

erind

Fingers crossed that I do win. Thank you very much for all of the great information and help I have received. I will post the outcome on here.

erind

Hi
I just wondered how long it usually takes to receive a response from POPLA?

Umkomaas

erind wrote: »

Hi
I just wondered how long it usually takes to receive a response from POPLA?

6 weeks or thereabouts, but you'll need to factor in Christmas and New Year, so it might be nearer 8 weeks. They will give you an estimate of the date it will be looked at when acknowledging receipt of your appeal.

erind

I have received an email acknowledging receipt of my appeal, but no mention of any timescale as yet. Well I will sit tight and hope the outcome is favourable. Thanks again.

erind

Hi,

I have received a reminder letter from Highview today even though I have appealed to popla. Should I respond to this or just await the popla decision?

Coupon-mad

I would wait; you have had an acknowledgement from POPLA. You could send a complaint to the BPA though, to drop Highview in it as this is a sanctionable breach. Get your own back with a quick email (BPA email addy in post #6 of the newbies thread).

erind

Thank you. I will post off a letter to BPA tomorrow.

erind

Hi,

I have received an email from POPLA, saying that my appeal has been successful. Thank you all so much for your help.