Highview Parking Urban Exchange

jrck2

I received an NtK from Highview Parking for a parking event (my car overstayed by 24 minutes) at Urban Exchange, Manchester.

I read the Newbie thread and other advice here extensively (thank you, I think it's an excellent resource you've put together!) I submitted the template informal appeal to Highview, which was rejected as expected. In their rejection they said:

"We are fully aware that this is a standard text, with no relation to any specific circumstances which might have represented valid mitigation against the issue of this charge. We are not obliged to answer it point by point, and we cannot accept it in place of a genuine appeal."

I only include this quote as I think it's interesting that they suggest that because it's a standard text it isn't a valid appeal. Anyway, if they're aware it's a standard text, they should be aware of the POPLA appeal which is coming next...

I've prepared a POPLA appeal (below), based on the templates and a couple of Highview threads from the past year. Please could you have a look at it, and give me your comments?

Many thanks,

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POPLA DRAFT

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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) Highview Parking 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 - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice
4) ANPR and BPA Code of Practice non-compliance
5) Unclear signage - no contract with driver


1) Keeper Liability not established

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 two 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 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.

2) Highview Parking 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.

In this case, no other party apart from an evidenced driver 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 NTK.

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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 Highview Parking 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 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 cannot transfer the liability for the charge using the POFA.

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 - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice

As Highview Parking 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 Highview Parking 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) 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.

The signs at Urban Exchange fail to comply with the above clause. One sentence on the sign reads: “This car park is controlled by ANPR and/or warden patrols.” This is not transparent. Due to the phrase “and/or”, it is unclear whether or not Highview Parking are using ANPR technology. Furthermore, the sign does not state what the data captured by the ANPR cameras will be used for, or how long it will be stored. This is a clear violation of the BPA Code of Practice.

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 Highview Parking has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

5) Unclear signage - no contract with driver

The signs were not visible from a distance and the words and numbers cannot be read by a driver in a moving vehicle. I put Highview Parking to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seem them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The signage also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ”Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”.

If parked in the dark underground area of this car park, especially in the evening in Winter when this parking event took place, the signage is not clear and I put Highview Parking to strict proof otherwise.

Molts

"We are fully aware that this is a standard text, with no relation to any specific circumstances which might have represented valid mitigation against the issue of this charge. We are not obliged to answer it point by point, and we cannot accept it in place of a genuine appeal."

Hilarious! I think we are well within our rights to send a standard text appeal in response to the standard text drivel the PPC's churn out on a daily basis.

I would consider reinforcing the attack on signage using Coupon-Mad's epic signage text, tailored to suit your circumstances. Find it on POPLA decisions thread post #2341. I've used this twice so far and the parasites have thrown the towel in both times without even forcing an adjudication.

Fruitcake

As above, the unclear signage point is far too short. There are now some template appeal points in post 3 of the NEWBIES thread. There you will find a link to the inadequate signage point that is about as long as the whole of your first post here.
You should use that one plus any other template points that are relevant too. (Your keeper liability point doesn't look long enough to me, but I haven't checked it against the one in the NEWBIES yet so I may be wrong there.)

Well done on getting this far without needing help first. It makes it so much easier when people read what has already been writ instead of asking the same questions again and again.

Coupon-mad

That will win but yep, increase the length of the final signage appeal point, to add that final nail.

jrck2

Thank you all for your comments. I've added some more to the signage section and have submitted it as a pdf under "other". I'll report back here with the verdict in due course.

Cheers,
jrck2

Guys_Dad

I would also add another point.

Failure to consider my appel correctly.

In their rejection they wrote:

"We are fully aware that this is a standard text, with no relation to any specific circumstances which might have represented valid mitigation against the issue of this charge. We are not obliged to answer it point by point, and we cannot accept it in place of a genuine appeal."

This is a Highview template reply, as can be shown. As such, they have admitted not accepted or considered my appeal points and, instead, have simply sent a standard rejection which transgresses not only POFA but also the BPA Code of Practice.

From the BPA CoP
Operator Procedures
22.4
If a driver or keeper appeals a parking charge you must review the case and decide whether to:
•uphold the parking charge and explain why it was issued and should therefore be paid, or
•reduce or cancel the charge and take no further management action other than informing the driver.
.

Two can play at their game

jrck2

I just received an email from POPLA, saying Highview Parking don't want to contest the appeal. Hurrah!

Guys Dad: Thanks for your comment. I think your suggested appeal point is a good one. I would have used it, but I'd already submitted my appeal when you posted.

Thanks all for your help.

A note to those who find this thread in the future: Since my parking event they've changed the parking system at Urban Exchange from 3 hours free to a confusing system with machines and tickets obtained in the shops, 1 hour free and 2 hours max... Anyway, bear that in mind in case aspects of my appeal above don't apply.

jrck2

Coupon-mad

Well done and many thanks for confirming it worked again. Highview never contest - a bit boring really!