Highview Parking - didn't use template appeal

madmuvva

Hello all, I received a Highview notice and having got very little advice on another forum, I wrote my own appeal (rather than using the very fine one posted on this Forum!). This is what I wrote:

"Dear Highview Parking


I have just returned from holiday and received a Charge Notice xxxxxxx.

Members of my family and I take in turns to drive our 5 year old to school in Leiston. As we live an hour and a half away, whilst she is at school (Mondays, Wednesdays and Fridays) we park in the carpark to shop in Saxmundham Tesco, the charity shop and to have lunch and snacks in Costa.

Your letter says that this was the second time this vehicle was parked at Tesco Saxmundham which is why you are issuing this charge. It seems very unfair that you have given one driver a ‘warning’ (without their knowledge) but not another. We have collectively been shopping and snacking as the above routine since April (when the 5 year old started school) and none of us have been aware of any restrictions at the store until now, therefore I therefore strongly refute any intimation that any contract was broken or breached.

May I suggest you cancel the notice provided or I will be happy to appeal further at the independent appeal service provided by your trade association. If you decide not to cancel the charge please would you provide the relevant information to appeal.

Yours sincerely"

Rather predictably they have rejected my appeal so my question is can I appeal to POPLA on the usual grounds or is it too late for me to introduce new points e.g. camera efficiency, outlined in the appeal templates I have read?

Assuming it isn't too late, can I use this template from the wonderful MoneySaver who won his appeal against Highview last year?

Re: POPLA CODE xxxxxx

As the registered keeper of the vehicle, registration number xxxxx, 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.''

I would also like to rebut in advance Highview Parking Ltd's (now commonly submitted in POPLA appeals) generic Genuine Pre-Estimate of Loss statement that will include vague heads of cost described as 'overheads' and numerous '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 Genuine Pre-Estimate of Loss. These overheads 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. PCN's issued and paid 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.

In a recent (02 October 2014) decision on Highview Parking Ltd's generic Genuine Pre-Estimate of Loss statement, POPLA Assessor Shehla Pirwany stated, "Whilst staff costs may fall within a genuine pre estimate of loss, in this case, the Operator has included ‘overheads,’ within their staff costs. Overheads are a general operating cost that would have been incurred even if the motorist had parked in accordance with the terms and conditions and are therefore not a cost that can be incurred as a result of a breach of the terms and conditions. The ‘overheads,’ amount is included with the largest amounts listed on the breakdown and I am unable to determine the amount of the figure that is attributable to overheads. As the amount for overheads cannot be separated from the overall amount, the amounts must be discounted from the breakdown. In the absence of further explanation as to the overhead amount being claimed, I am not satisfied that the amount of the charge is substantially linked to the loss incurred as a result of the breach."


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."

I would also like to bring to attention POPLA Assessor, Nadesh Karunairetnam's findings in POPLA Appeal 2922064001 that "Specifically, the appellant did not admit to being the driver and submitted that the notice to keeper was inadequate as it did not properly indicate the creditor.

The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. The notice to keeper issued by the operator appears not to comply with sub-paragraph 2(h) as it does not identify the creditor. "

The NTK is also missing a description of the parking charges which remained outstanding and unpaid by the driver the day before the NTK was issued; in other words any tariff not paid (if 'none' then POFA2012 makes it clear the NTK still has to describe them).

Neither is there a 'period of parking' shown on the NTK, no doubt because no parking was observed. As this is a postal PCN, the times shown are merely the arrival & leaving times at the entrance/exit which is not the same as the mandatory 'period of parking' required by Schedule 4 paragraph 9. The parking period cannot be assumed - parking is not driving in/out - and the requirement to state a parking period is mandatory.


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 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 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.

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

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. is a mere agent and places its signs in a non-compliant manner, it has 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 car park, 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. has no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.

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.

Herzlos

There's nothing stopping you adding new points, it's a new appeal.

Are you sure it was an ANPR system, before you add the point about ANPR? The rest of the points stand anyway.

You should also add a point that the driver was a genuine customer (with proof if you can, without identifying the driver, like reciepts)

Guys_Dad

Whilst hoping you win your appeal, I do think that it would be a real cheek to use Tesco's customer car park 5 days a week for the duration of your child's school day now that you have been made aware of the situation. That is unless it was ever designated a public car park without restrictions.

The belief that Tesco re in the long stay free car parking business and not a retail company is a misconception.

madmuvva

Guys_Dad wrote: »

Whilst hoping you win your appeal, I do think that it would be a real cheek to use Tesco's customer car park 5 days a week for the duration of your child's school day now that you have been made aware of the situation. That is unless it was ever designated a public car park without restrictions.

The belief that Tesco re in the long stay free car parking business and not a retail company is a misconception.

You're right it would be, had I not been in Costa and Tesco spending mega bucks each visit. Secondly, it was 4 hours for 3 days for 3 weeks. Thirdly, although I don't actually need to justify anything (a "cheek" to assume I was using the car park 5 days a week?) as I say, I genuinely did not see a two hour limit.

madmuvva

Herzlos wrote: »

There's nothing stopping you adding new points, it's a new appeal.

Are you sure it was an ANPR system, before you add the point about ANPR? The rest of the points stand anyway.

You should also add a point that the driver was a genuine customer (with proof if you can, without identifying the driver, like reciepts)

I received a photograph attached with my charge, so am I correct in thinking that is an ANPR system? If not, how would I check? I have credit card receipts and a Costa Coffee points card - would they count? At what point do I need to submit them?

madmuvva

Just thought though, the credit card and Costa card is in my name (obviously! lol) so would that point to me being the driver?

Redx

madmuvva wrote: »

Just thought though, the credit card and Costa card is in my name (obviously! lol) so would that point to me being the driver?

no, it just means that you were a passenger in the vehicle at the time, I could have been driving the vehicle

remember, you are appealing as KEEPER , not driver , because they sent the invoices to the RK from details obtained from the DVLA , which should have arrived within 14 days of the incident (s)

submit redacted copies of receipts or bank statements, complain to the retailers or landowners too , use any and all means necessary to get the invoices cancelled

as for the anpr, if they took 2 photographs of entry and exit then its likely to be anpr, in other words not a man (or woman) with a hand held camera

Guys_Dad

madmuvva wrote: »

You're right it would be, had I not been in Costa and Tesco spending mega bucks each visit. Secondly, it was 4 hours for 3 days for 3 weeks. Thirdly, although I don't actually need to justify anything (a "cheek" to assume I was using the car park 5 days a week?) as I say, I genuinely did not see a two hour limit.

Sorry - I missed it was only 3 days a week. And I agree that the price Costa charge for their coffees is megabucks (almost as scandalous as car parking penalty charges but on a lesser scale).

But I do stand by my observation that your predominant use of Tesco car park was to facilitate your child attending school and your occupancy of the car park for the period in question was not what the landowners had in mind.

Herzlos

madmuvva wrote: »

I received a photograph attached with my charge, so am I correct in thinking that is an ANPR system? If not, how would I check? I have credit card receipts and a Costa Coffee points card - would they count? At what point do I need to submit them?

Did you get a window ticket or was the first notice the postal ticket within about 14 days? If it was postal within 14 days it'll be ANPR.

You'd submit the evidence as part of the POPLA appeal, just redact any information that isn't required (like the name/account number/other transactions on the card statement, or the name/account from the card reciept).

But I do stand by my observation that your predominant use of Tesco car park was to facilitate your child attending school and your occupancy of the car park for the period in question was not what the landowners had in mind.

I disagree; the landowner (and store owners) will be perfectly happy for someone to stay on site for 4 hours spending money; that's their ideal customer. A captive shopper who stays on site for 4 hours during a quiet period.


I'd also be complaining to Costa, predominantly, if you're spending the bulk of the time in there, that you're being harassed for being a customer.

madmuvva

Guys_Dad wrote: »

Sorry - I missed it was only 3 days a week. And I agree that the price Costa charge for their coffees is megabucks (almost as scandalous as car parking penalty charges but on a lesser scale).

But I do stand by my observation that your predominant use of Tesco car park was to facilitate your child attending school and your occupancy of the car park for the period in question was not what the landowners had in mind.

Are you saying I should wait outside the school and collect my 5 year old BEFORE I go shopping? That somehow the landowner wouldn't want me driving the 3 miles from the school in Leiston to the coffee shop/supermarket in Saxmundam to shop/drink coffee to fill a time gap? I think if you polled parents, most would unequivocally say that its best to go shopping whilst the kids are at school. Same as having a quiet coffee and lunch. I'm struggling to see what point you are trying to make.

madmuvva

Herzlos wrote: »

Did you get a window ticket or was the first notice the postal ticket within about 14 days? If it was postal within 14 days it'll be ANPR.

You'd submit the evidence as part of the POPLA appeal, just redact any information that isn't required (like the name/account number/other transactions on the card statement, or the name/account from the card reciept).



I disagree; the landowner (and store owners) will be perfectly happy for someone to stay on site for 4 hours spending money; that's their ideal customer. A captive shopper who stays on site for 4 hours during a quiet period.


I'd also be complaining to Costa, predominantly, if you're spending the bulk of the time in there, that you're being harassed for being a customer.

I'm complaining to them as we speak. A captive shopper - that sums it up!