Highview Parking Fines Help !!

Jofarah

Hey , Thanks for all the help so far , can someone more experienced give me their advice on the popla appeal I have written.
Dear Sir/Madam

On the above date I, the keeper, was issued with a parking charge notice by Highview Limited. I dispute this on various grounds.

1.)Non Compliance with Pofa which leads to no keeper liability:

As subsection 4 of paragraph 9 of the Protection of Freedoms act clearly states:
The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
The date of the alleged offence is 22/08/2015, however, the Notice to keeper was received on 10/08/2015 - well over the 14 days relevant period which is specified.

Furthermore, the operator also falls foul of point (f) of subsection 2 of paragraph 9 :
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The operator has failed to warn me that as the registered keeper I will be liable to be pursued for the charge after 28 days if the identity of the driver has not been disclosed.

As a result, Highview has not met the keeper liability requirements and therefore keeper liability does not apply. Highview can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As Highview have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

I fully believe that this point is sufficient to uphold this appeal. However, I have also provided extra reasons as to why this charge should not be upheld.

2. Charge not a genuine pre-estimate of loss
The demand for a payment of £70 (discounted to £40 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: 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.
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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


3. The amount of the charge is disproportionate
The amount of the charge is disproportionate to the loss incurred (off which there is none as this is a free car park) by Highview Parking Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because being a free car park it is impossible to pay for any overstay. There can have been no loss arising from this incident. Neither can Highview Parking Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local charges for all day parking, as the parking meter rate in the corresponding private car parks such as Queens Car Park is £1 per hour. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


4. No authority to levy charges
A parking management company will need to have the proper legal authorization 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 the Highview Parking Ltd. to strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the Highview Parking Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the 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 Tesco, 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. 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.

7. Business Rates
As this car park is now being used for the purpose of running a business by HIGHVIEW PARKING LTD., which is entirely separate from any other business the car park services, and generates revenue and profit for HIGHVIEW PARKING LTD., I do not believe that HIGHVIEW PARKING LTD. has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put Highview Parking Ltd. to strict proof that they have so registered the business they are operating at TESCO Watford Extra car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. Therefore, I respectfully ask that the charge is cancelled.However, It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

Yours faithfully

Jofarah

Also , does anyone know if failing to comply with pofa is a slam dunk appeal point ?

nigelbb

Jofarah wrote: »

Also , does anyone know if failing to comply with pofa is a slam dunk appeal point ?

Only if the keeper is making the appeal & the PPC is attempting to invoke POFA 2012 to enforce keeper liability for unpaid parking charges incurred by the driver.

Jofarah

I see . So as both points apply in the situation my appeal is likely to be successful ?

Coupon-mad

Should be - but that is an ANCIENT POPLA appeal you've copied from, misses out all the recent stuff (Aziz Test, Beavis). No-one has included 'business rates' for two years in a POPLA appeal and I always disliked that template - it's a very weak example for POPLA.

The date of the alleged offence is 22/08/2015, however, the Notice to keeper was received on 10/08/2015 -

Please sort out the dates, these are wrong. Can't both be August. Then hop over to the NEWBIES thread and post #3 of it, about POPLA. Read a far more recent POPLA example and get your head around Beavis and Aziz.

Umkomaas

The BPA code of practice states: 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.

This was superseded over 12 months ago, with GPEOL replaced by 'Commercial Justification', so you need to check the same paragraph in the current BPA Code of Practice.

How did you get on with your complaint to Tesco, as per my advice in post #11? The complaint route has been proved time and time again as the easiest, quickest and most effective way of kicking your parking charge permanently into touch.

charliesangel48

Hi i also would like someones opinion, i overstayed in tescos hull st stephens car park yesterday by an hour i was just wondering, is it guaranteed that ill get a charge notice or is it more 'wait and see' thanks in advance

Redx

its wait and see , if you do get a pcn , open a new thread for specific and up to date advice

Jofarah

Tesco cancelled one of the charges but for a lack of reciept didnt cancel the other.

Jofarah

Again thanks so much for the help I am receiving here !