Highview Parking Charge Manchester

Viv_Cheetham

I recieived a charge notice from Highview Parking, a notice to keeper I think it may be called. My car was parked at the Urban Exchange car park in Manchester in Feb 2016, for a length of time that "contravened the terms and conditions displayed on the signage”

With the generous amount of info here in this forum (Ta) I decided to appeal. See my email below. I was careful not to give details of who was driving.

email:
I am the registered keeper of the car affected by this charge notice and I believe it has been issued incorrectly. My reasons are stated below.

1. I was not the driver of the vehicle when it was parked at Urban Exchange on19th February 2016.

2. The driver was completely unaware of any parking restrictions on this land and this was due to poor information both around the car park and in the stores surrounding it.

3. The driver was using the stores surrounding the car park, naturally assuming it was for the use of their customers. This the driver has done on numerous occasions and never incurred any charge. Admittedly, the driver hadn't parked for this length of time before, but as mentioned above was not aware there was a time restriction.

Please see a copy of a receipt from Aldi received from the day in question.

If this appeal is rejected I intend to pursue the appeal through POPLA and I would be grateful if you could provide me with full details of how to do this.

Regards

I received a rejection of this appeal stating that their signage is “in compliance with The British Parking Association’s Approved Operator Scheme Code of Practice and all relevant laws and regulations.” and that this was not grounds for an appeal.
In their email they annoyingly state "The fact that you were unaware of the restrictions that are in place is not considered a mitigating circumstance for appeal. “ treating me as the driver. I am concerned that if I don’t email back reminding them strongly of this fact then I will be considered the driver (?)

So I have my POPLA Code and looking for help and encouragement that I am doing the right thing and have a good chance of getting this charge cancelled. Looking at the info people have kindly provided it looks as though I cold put the following things in my appeal….what does anyone think? Am I on the right track

1. The charge notice doesn’t say anything about the Keeper being liable for the charge, just that if I was not the driver then I should pass on the details of the driver to Highview. So not POFA compliant?
2. There is no mention on the charge notice of who is the landowner/creditor for this car park. Highview just state “client”.
3. I can’t see how my car parked in a free car park causes any loss to the landowner. The basic “discount" sum is £55
4. I’m pretty sure the signage is scant on this car park but need to check.
5. The car park is operated with a camera system that picks up the registration plate. Is this reliable.
6. I have a copy of a receipt from the Aldi store next to the car park so the driver was a legitimate customer.

Any suggestions gratefully received.

Coupon-mad

So I have my POPLA Code and looking for help and encouragement that I am doing the right thing and have a good chance of getting this charge cancelled.

Check. Consider yourself encouraged.

1. The charge notice doesn’t say anything about the Keeper being liable for the charge, just that if I was not the driver then I should pass on the details of the driver to Highview. So not POFA compliant?

Yes you are right.

Clause (f) within section 9 isn't addressed explicitly within the NTKs Highview use:

(f)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;




You need to show us your draft POPLA appeal.

You need to quote para 9 in the POPLA appeal, make that point #1. Then unclear signage with the wording in small lettering/not seen by the driver/no contract formed to pay £100 (or £90 or whatever)/non compliant with the BPA CoP (quote the CoP on signage, Appendix . And no landowner authority (quote 7.3 of the CoP).

You will see other POPLA appeal examples on the forum this month and in Feb/March to copy from, just go back and back and back even further, page by page on this forum, clicking on any POPLA appeal threads and crib from them. Take your time.

Do not use the older 2015 ones in the NEWBIES thread. I need to refresh the advice, they are too old. No GPEOL is not an appeal point.

Viv_Cheetham

Thanks...I'll draft a POPLA appeal and post it soon.

Viv_Cheetham

POPLA APPEAL

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Highview Parking issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Landowner Authority
3) ANPR and BPA Code of Practice non-compliance

---

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012

Highview Parking are pursuing me for the payment of this parking charge but I was not the driver. Schedule 4 of POFA 2012 creates the new legal basis to claim unpaid parking charges from vehicle keepers and hirers. As long as the strict conditions of Schedule 4 are met, you may claim payment from the keeper or the hirer of the vehicle rather than from the driver.
Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

In my initial appeal to Highview Parking I stated that I was not the driver of my vehicle when it was recorded on their clients land and this was a reason why they should not pursue me for the money. In their reply they ignored this point and wrote back to me as though I was the driver.

The PCNs they have sent to me never warned me that they can recover money from me as keeper. There is no mention of POFA 2012 on the PCNs and no compliance with it’s requirements, therefore I think their claim against me is invalid.

Also if Highview Parking are trying to operate POFA there are two reasons why their Notice to Keeper failed to comply with Schedule 4 of POFA:

(i) Contrary to the requirements of Paragraph 9(2)(f), this NTK fails in the prescribed requirement to:

''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...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;''


I think it worth underlining that There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”
(ii) Contrary to the requirements of Paragraph 9(2)(h), the Notice to Keeper does not identify the creditor and specify how and to whom payment or notification to the creditor may be made;

Consequently, Highview Parking has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.


2) No Landowner Authority

I question Highview Parkings’s authority from the landowner to enforce parking charges at this car park. BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Highview Parking to strict proof of the contract terms with the actual landowner
Highview must have clear authorisation from the landowner (not a lessee or agent who has no more title than the operator) to issue tickets on the land in question.

I question Highview Parking’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Highview Parking is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Highview Parking are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“The written authorization must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

I put Highview Parking to strict proof of compliance with all of the above requirements.

3) ANPR and BPA Code of Practice non-compliance

Highview Parking are in breach the British Parking Association’s Code of Practice relating to ANPR cameras and associated signage. The code states the following:

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.

I include a photo of the sign at the Urban Exchange car park which does not inform what the data captured by the ANPR cameras will be used for or how long it is stored for.


The code also states:

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. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

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.

21.5 If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).

I contend that Highview Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

Ralph-y

"Please see a copy of a receipt from Aldi received from the day in question."

have you been in touch with Aldi

local manger and CEO ?

Ralph:cool:

Coupon-mad

You need a 'non prominent signage terms' point, that is ALWAY, ALWAYS, ALWAYS a feature of a POPLA appeal.

Yes, we know they have signs up. But the parking charge and terms will be high up on poles and not like the orange/black minimalist 'Beavis case' sign shown here:

http://parking-prankster.blogspot.co.uk/2016/01/new-popla-staying-cases-to-consider.html

Parking charge £ in large lettering? Doubt it. Put Highview to strict proof of same.

And here you should say you are quoting Henry Greenslade:

I think it worth underlining that the 2015 POPLA Lead Adjudicator, Henry Greenslade, who was also a long-experienced PATAS Lead Adjudicator with a thorough knowledge of traffic and parking/penalty law, stated in the POPLA Annual report 2015:

''There is no ‘reasonable presumption’...

Viv_Cheetham

Thanks for response

I didn't go down the Aldi route because, going off other peoples experience at this site, they wouldn't have anything to do with it...maybe should have tried for myself though.

When I viewed the signs at the site recently they are clear and plentiful actually and stuck on walls....is it still worth claiming unclear? They seem to adhere to BPA code apart from they don't mention ANPR data storage. Max size of letters is 4cm but I haven't yet found out if this complies with the code.

I was considering adding that the driver was a legitimate customer of the Aldi and I have a receipt. What does anyone think?
My POPLA deadline is in about 10 days......Thanks in advance

Coupon-mad

YES include the signage argument because that makes them have to evidence signage. If you don't mention signs they don't even have to show them! You should say the sum of the parking charge and the terms themselves cannot be read before parking as the signs are too high/the font too small. It is not for you to have to prove.

Driver being a customer of Aldi is irrelevant to POPLA, but relevant to a complaint to Aldi or more probably, to the landowner or site agent of the entire retail park (always fairly easily Googled).

Viv_Cheetham

Just looked at that sign from the link,thanks Couopn. The Highview sings are similar to Beavis case one.
The parking charge is prominent and the biggest lettering (3.5cm I measured and photographed), also colours are contrasting white/black/blue. I would post an image but not sure best way to do that at moment.

Viv_Cheetham

Ok will stick some signage in...ta

Ralph-y

"I didn't go down the Aldi route because, going off other peoples experience at this site, they wouldn't have anything to do with it...maybe should have tried for myself though."

yes you should ...

Aldi DO often cancel if you are a genuine customer ...

especially if you reach the magical sum of £30 .....

Ralph:cool: