Highview Parking Charge Notice at Borehamwood Retail Park

FamilyManPC1

Hi all,

Newbie to the forum, just after some advice to make sure I get my next steps right.

Last week I received a Charge Notice from Highview Parking for exceeding the 3 hour limit at the Borehamwood Retail Park in the run up to Christmas - car was in the car park for 3hrs and 46 mins according to their ANPR. The offence took place on the 10th December 2016, but the charge wasn't sent out until the 6th January 2017 - 27 days after the event. So I decided to appeal with the following argument:
Dear Sirs, Re: Charge Notice Ref No x. I challenge this 'Charge Notice' as keeper of the car. Your Notice to Keeper was not received within 14 days, so keeper liability does not apply. POFA 2012, Schedule 4, Section 9(5) states that the Notice To Keeper is issued within 14 days of the relevant period. The Date of Notice issued at the top of the Charge Notice x is 06/01/2017. The date of the alleged offence is 10/12/2016. This is a difference of 27 days. The purpose of having a specified time scale for keeper liability to apply is that after a period of time, the keeper may not recall who was driving at the time. I invite you to cancel the charge or provide me with a POPLA code where, I am confident, they will cancel the charge on this point. Yours Sincerely.

In true Highview style, they rejected my claim with the following counter argument:
Thank you for your correspondence concerning your Parking Charge Notice.
The PCN was issued and the signage is displayed in compliance with The British Parking Association’s Approved Operator Scheme Code of Practice and all relevant laws and regulations. Clear signs at the entrance of this site and throughout inform drivers of the terms and conditions that apply there, and it is not possible to access any part of the premises without passing multiple signs. The fact that you were unaware of the restrictions that are in place is not considered a mitigating circumstance for appeal.
We have never claimed to have issued this Parking Charge Notice under POFA 2012 nor is there any requirement for us to do so in order for the charge to be valid.
Your representations have been carefully considered but in light of the above, on this occasion, your appeal has been refused.
We can confirm that we will hold the charge at the reduced rate of £50 for a further 14 days from the date of this correspondence, after which the full amount will be due.
You have now reached the end of our internal appeals procedure.

Although we have now rejected your appeal, you may still have recourse to appeal to Parking On Private Land Appeals (POPLA), an independent appeals service. An appeal to POPLA must be made within 28 days of the date of this correspondence. POPLA will only consider cases on the grounds that the Parking Charge exceeded the appropriate amount, that the vehicle was not improperly parked or had been stolen, or that you were otherwise not liable for the Parking Charge.

To appeal to POPLA, please go to their website and follow the instructions. If you would rather deal with this matter by post, please contact our Appeals Office and we will send you the necessary paperwork.

Your POPLA reference number is: y.

Please note that if your appeal does not relate to the above criteria or is rejected by POPLA for any reason, you may be requested to pay the charge at the full amount and will no longer qualify for payment at the reduced rate.

By law we are also required to inform you that Ombudsman Services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.


So their argument is that do not need to operate under the POFA 2012 laws - which seems wrong to me.

I am obviously going to appeal to POPLA and I have read the FAQs. Do you think I stand a good chance of winning - I would appreciate some guidance to make sure I get the appeal correct. Was thinking about adding in some points along the lines of Christmas trading, busy car park, waiting for parent and child space, queue to get out, etc - but don't want to impact my chances.

Thanks in advance for any help you can offer...

twhitehousescat

POPLA will only consider cases on the grounds that the Parking Charge exceeded the appropriate amount, that the vehicle was not improperly parked or had been stolen, or that you were otherwise not liable for the Parking Charge.?

FamilyManPC1

So can I argue that, as the registered keeper of the car, I am not liable for the Parking Charge as they do not know who was actually driving on the day.
If that is the case - is there a template can I should be using ?
Thanks.

Coupon-mad

twhitehousescat wrote: »

POPLA will only consider cases on the grounds that the Parking Charge exceeded the appropriate amount, that the vehicle was not improperly parked or had been stolen, or that you were otherwise not liable for the Parking Charge.?

What? I know Highview said it but please don't quote that, Trevor Whitehouse's Cat, it confuses newbies into thinking they might have no grounds for POPLA when in fact it is dead easy to beat Highview. As we all know, everyone here appeals under 'OTHER' ignoring the lie that this is less likely to succeed.

So their argument is that do not need to operate under the POFA 2012 laws - which seems wrong to me.

No, it isn't wrong and I do cover that in the NEWBIES thread. I tell people that firms do not have to use the POFA but if they do not, they can only hold a driver liable.

So, now you win at POPLA. Have you missed the POPLA templates in post #3 of the NEWBIES thread?

Also I recall someone used the templates to write a Highview POPLA appeal only last week or so on here, so search 'Highview POPLA' in this board only and I think you will find one done already this month. If not, use the templates and show us your draft.

Easy peasy. Submit the PDF appeal under 'OTHER' on the POPLA website. You win!

FamilyManPC1

Hi all,

Below is my draft for POPLA, can someone please cast their eyes over it before I submit it?

Thanks...

Appeal re POPLA code: 606xxxxxxx – xxxxxxx xxxxxxx vs Highview Parking

Dear POPLA Adjudicator,

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself, as registered keeper of the vehicle in question. I was NOT the driver.

I am appealing a parking charge from Highview Parking on the following grounds:

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

4. The signs in this car park are not prominent, clear or legible from all parking spaces or at the entrance.


1. A compliant Notice to Keeper was not served - no Keeper Liability can apply.

The main point of appeal is that a compliant Notice to Keeper was not served. Although Schedule 4 of the Protection of Freedoms Act 2012 (POFA) potentially 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.
Highview Parking's Notice to Keeper fails to comply with Schedule 4 in 3 respects:
a) It fails to comply with Paragraph 9(2)(f)of the POFA as follows:
'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;'

As this is prescribed, mandatory wording under statute, it is clear that Highview Parking have decided not to exercise their rights under the POFA and can only pursue the driver.

b) It fails to comply with Paragraph 9(4)(b) which states that the notice must be posted to the keeper’s address so that it is delivered within the relevant period. Paragraph 9(5) states that the relevant period for this purpose is the period of 14 days beginning with the day after that on which the specified period of parking ended.

In this instance the alleged parking contravention took place on 10 December 2016 and the Notice to Keeper was dated 6 January 2017 and arrived 3 days later. This means that Highview Parking have failed to act in time for keeper liability to apply. Furthermore, it is clear that Highview Parking know this because they make no reference to ‘keeper liability’ or the POFA. So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.
Therefore, Highview Parking knowingly and wilfully issued an illegal notice. This was pointed out to the operator in the original appeal but the operator failed to take the opportunity to admit its error or cancel the appeal.

c) It fails to comply with Paragraph 4(5) which states that the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
In this instance, Highview Parking’s Notice to Keeper includes an additional ‘initial debt recovery charge’ of £40 if payment of the charge is not received within 28 days.

Consequently, Highview Parking has forfeited its right to recover any unpaid parking charges from myself, the keeper of the vehicle. As such, POPLA will be unable to conclude that the Charge Notice has been issued correctly.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation 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
4. The signs in this car park are not prominent, clear or legible from all parking spaces or at the entrance.

The BPA Code of Practice (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.
The photographs below show there is no sign visible at the main entrance to the retail park and the first sign is when you get to a mini round-about and is located on the other side of the road – this is difficult and dangerous to read whilst driving. I submit that it is not reasonable to place an entrance sign on the wrong side of the road where it can easily be obscured by queuing traffic, and expect drivers to notice it on their way into the car park. It is almost as if Highview Parking does not want customers to see the sign.





This opinion is reinforced by the signs within the car park itself. The car was parked on the day in question, in a Parent and Child bay. This is a picture from where the vehicle was parked. The only visible sign is of a parent and child sign (and even that is obscured by a tree).


Exiting the car and looking around there are no other visible signs (the actual sign that needs to be seen is hidden behind another tree).


In this section of the car park to see the sign with the terms and conditions on you would need to walk to the middle of the section – something you are not going to do if you have young children with you as that is dangerous in a busy car park.


The BPA Code of Practice (18.2) 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.

There was neither contract nor agreement on the 'parking charge' at all. I contend that the driver did not have a fair opportunity to read about any terms involving this charge, as there were no signs viewable at the entrance or from the parking space.

In this car park, the signs are sporadically placed and can be easily missed until leaving the site. They are unremarkable and not immediately obvious as parking signs. Furthermore the signs are located high up which makes them far more difficult to read without walking up to them.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, that most of this site is unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

Yours Sincerely.

FamilyManPC1

Hi, sorry to bump my own post - not sure if anyone has had a chance to read and review my appeal letter to POPLA above? Apologies if I have posted it in the wrong place. Thanks in advance.

Coupon-mad

Yep that's fine, it will win because Highview don't use keeper liability. I like this bit and assume you have embedded your pics into the PDF appeal which is exactly as we advise, make it look pretty with pictures of any woeful signs:

This opinion is reinforced by the signs within the car park itself. The car was parked on the day in question, in a Parent and Child bay. This is a picture from where the vehicle was parked. The only visible sign is of a parent and child sign (and even that is obscured by a tree).

Exiting the car and looking around there are no other visible signs (the actual sign that needs to be seen is hidden behind another tree).

Submit the PDF under 'OTHER' and don't try to click on other choices.

kk_76

What was the outcome of this case?
I have received a letter from the same people - for apparently parking 13 minutes over...I remember it was a saturday and kind of busy. What should I do? TIA

Redx

kk_76 wrote: »

What was the outcome of this case?
I have received a letter from the same people - for apparently parking 13 minutes over...I remember it was a saturday and kind of busy.

What should I do? TIA

you should read the NEWBIES sticky thread and follow the advice therein

and also open your own thread

Coupon-mad

kk_76 wrote: »

What was the outcome of this case?
Did you win or lose?

Say what now? You think it's possible to LOSE against Highview here?! :rotfl:

https://forums.moneysavingexpert.com/discussion/comment/72508765#Comment_72508765

Just don't go writing your own appeal with the story of what happened, from the driver.

Did you miss the thread in capital letters at/near the top of the parking forum list 'NEWBIES PLEASE READ THESE FAQS FIRST'?