POPLA Appeal Highview Parking

A question about : POPLA Appeal Highview Parking

I need help please.
The first charge notice was sent to me (the RK) by post on the 20/10/2014 using ANPR. They said [Ј95 within 28 days] We will accept the reduced sum of Ј55 if payment is received within 14 days i.e. before 03/11/2014. If payment is not received within 28 days and additional administration charge of 340 will be incurred.

I emailed an appeal from a thread on the 30/10/2014. This was rejected by email on 03/11/2014 and a POPLA code provided.
Dear Madam,

Thank you for your correspondence concerning your Parking Charge Notice.

This PCN was issued legally and correctly according to the British Parking Association Approved Operators Scheme.

Given that the signage is displayed in compliance with all relevant laws and regulations, the fact that you were seemingly unaware of the Terms and Conditions on site is not considered a mitigating circumstance for appeal.

We have calculated the sum owed as a genuine pre-estimate of the losses incurred in managing the parking location to ensure compliance to the stated Terms and Conditions on site and to follow up on any breaches. We would remind you that the sum requested is well within the recommendations set out within Clause 19 of the BPA Code of Practice and that the sum, which is clearly and prominently advertised on all signage on site, has been approved by the landowner.

In light of this, on this occasion, your representations have been carefully considered and rejected.

We can confirm that we will hold the charge at the current rate of Ј55 for a further 14 days from the date of this correspondence.

Yours faithfully,

Highview Parking Ltd

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. 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 {popla.co.uk} 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: ############

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.[/I]

A charge notice reminder was sent by post to me on 18/11/2014 saying that The full amount of Ј95 is now due. If payment is not received within 14 days, an additional administration charge will be incurred.
[/I]

This is a POPLA appeal that I think might be relevant to my case. It is quite long and I can't tell if it's all necessary? Advice would be most appreciated.

Dear Sirs,

Re: POPLA CODE [removed]

As the registered keeper of the vehicle, registration number [removed], I wish to appeal against the parking charge issued by Highview Parking.

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.

How can Ј95 be a genuine pre estimate of loss when they are willing to cut it Ј55 if paid within 14 days.

I require Highview Parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular 'contravention'. Highview Parking 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 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'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'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 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 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 HighviewParking 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's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement betweenHighview Parking 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 to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Highview Parking 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 is relying on Schedule 4 of the Protection of Freedoms Act 2012. Highview Parking 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 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 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 becauseHighview Parking 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 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 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 theexact 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 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 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 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.

Best answers:

• Highview should be pretty easy to beat at POPLA with that appeal. I'd take out this line though:
  Quote:
• Thanks for your advice DJ Benz. I'll remove that line. I ran the POPLA code through another website which decodes it to give the submission to POPLA deadline - 2nd Dec so I'm cutting it a bit fine.
• Have a look at my thread here: https://forums.moneysavingexpert.com/....php?t=5065946
  Same boat as you in the beginning, I couldn't understand how it worked when nothing seemed to be relevant to my case. With the help of people on here it all went through and I won.
  You can see the kind of evidence Highview may provide, and my rebuttal of it too. In my case Keeper Liability was their downfall so whatever you do, don't admit to being the driver (not that you were, of course) only make the appeal as the Registered Keeper.
  The cheeky so-and-so's even tried to say in their evidence pack that I hadn't denied being the driver, even though I'd stated emphatically that I was appealing as keeper.
• You have plenty of time to submit that appeal online to POPLA - tick all boxes except 'stolen car'.
  You will win on 'no GPEOL' or on this:
  Quote:
• Thanks DJBenz and CouponMad. I'll look at your posts on my laptop when I get home from work. A phone screen isn't the easiest way to navigate between links.
• Okay. The appeal has been submitted. I shall just sit back and wait for the next stage. Thanks for all the support so far. It's really great to have all of this help and advice at the touch of a few buttons. Really appreciate it.
• When I submitted the PoPLA appeal, I got an email from web@londoncouncils.gov.uk with a summary of the appeal.
  Why they are appealing:
  Parked improperly
  Charge exceeded
  Not liable
  I'm sure that when I ticked the boxes (except stolen), that one of them said "Not improperly parked" but the summary says "Parked improperly". Do I need to do something about this?
• Nope that's their silly system! Nothing to worry about and you could have ticked any of those 3 boxes.
• Thanks for that CouponMad. The hearing is scheduled for 15th. I'm assuming that Highview will object to everything in my appeal and I'll have to respond to that?
  TGIF. Have a great weekend.
• Probably...but Highview ALWAYS lose!
• I received an email from Highview refuting my PoPLA appeal. Do I need to do anything in the meantime please?
  Dear Madam
  Please find attached the evidence pack in the above reference which has been submitted to POPLA.
  Yours faithfully,
  Highview Parking Ltd
• So you go through the pack, then send a rebuttal to POPLA to highlight all the lies, mis-truths and errors in that pack.
• Thanks Bod1467. Do you know if there's an example I can follow. Find this very overwhelming.
• Search this forum for rebuttal.
• I've almost completed constructing the rebuttal based on others' successes.
  One of Highview's points states that This site is also for customers only, as detailed on the prominent signage on site (See Section F). It is noted that ************** makes no claim to be a customer of the facilities on site
  How can I claim to have been a customer if I wasn't the driver?
  Do I need to make reference to this point?
• Of course, they are claiming that the fact that you were not a customer somehow reinforces their argument that you owe them ЈЈЈ.
• Email me the evidence pack. Highview and I are old buddies. Would be a shame to see them stop 'springing into immediate action' and as former customer of the month (self-appointed) I feel it is my duty to point out any flaws in their arguments.
  I will send you back your rebuttal points.
  My email is prankster@parking-prankster.com
  I don't have a high post count but I'm sure one of the more regular posters will vouch for me :-)
• Hi Prankster. I've emailed it to you.
• Ah, my dear friends Highview. How I miss them. Its nice to see they are still as incompetent as ever, have no idea what their initial loss is (clue, it is not someone else's purported and speculative loss who is unconnected to the contract) and don't seem to know who the landowner is. Really the assessor can choose anything to uphold this appeal, so unless you get one of the duff ones, all should be plain sailing.
  Dear POPLA,
  Case 292xxx4xxx
  I would like to make the following representations on the evidence. All these points were raised in my original representations to the operator. Please ensure this is put in front of the assessor.
  a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is an
  unrecoverable penalty and not commercially justified.
  Highview Parking have not established any initial loss to themselves. The initial loss is to some unidentified retailer who is not a party to the contract, and does not appear to have any interest in the land. In any case this calculation appears to have been pulled out of the air and does not appear to have any basis in fact. As there is no initial loss to Highview, the whole charge becomes invalid.
  In addition, as the car park is managed by ANPR, Highview know the approximate number of cars parked at any time. They have submitted no evidence to prove the car park was full, or nearly full at the time of the parking event, even though they have this data. They have stated the car prevented other vehicles parking, but this is denied.
  In addition, the vast bulk of the pre-estimate of loss calculation is for the POPLA appeal; over 60%. POPLA appeals account for only 1-2% of parking tickets issued. It is a fundamental principle of English Law that a charge for breach of contract is intended to put the injured party back in the position they were in had no breach occurred. When vast numbers of breaches occur, and tickets are issued in the millions per year (according to the DVLA), the proper way to account for a low probability cost is to average it out over all tickets. Thus, the true average cost per ticket is 2% of Ј62, or just over Ј1. Thus the true pre-estimate of loss is under Ј10.
  Finally, I would like to raise a complaint to the lead assessor that this calculation does not appear to be legitimately incurred by Highview, but has been copied almost verbatim from that used by another operator. Obviously, the charges must have been legitimately incurred by the actual operator, and taken from their own accounts; not copied from somebody else. I point the lead adjudicator to the following evidence for this;
  1) On page 4, the 'determining costs' paragraph refers to a non-existent 'appendix 1, chitty on contracts.'
  2) The GPEOL charges, amounts and wording have all been copied from CP Plus. I refer the assessor to POPLA appeal 1772244009. In addition, the GPEOL calculation in appeal 1772244009 seems to have been copied from a third operator, UK Parking Control, as their name has inadvertently been left in. Fraud therefore seems rife amongst the parking companies.
  b). The signage is insufficient, the risk of a charge is not transparent and the wording is ambiguous.
  The signage map submitted shows that although there are a number of signs, they are not situated frequently enough through the site, creating large numbers of 'black spots' where cars can park without signs being easily visible.
  The phrase 'failure to comply with these terms and conditions may result in a parking charge' has been ruled as ambiguous in several small claims parking cases by judges, and to mean that consumer may reasonable expect a charge will not be applied. The Unfair Terms in Consumer Contracts Act 1999 applies, and paragraph 7 states that ambiguous terms must be interpreted to the advantage of a consumer. As several judges have ruled the term is ambiguous, by definition it is. Therefore, the charge is not enforceable.
  c). There is no evidence that you have any proprietary interest in the land.
  Highview have not submitted any evidence they have a contract with the landowner or even stated who the landowner is. It is not uncommon for a parking company to believe they have a contract with the landowner, only to find the actual landowner is someone else and the contract is invalid.
  d). Your written 'notice' fails to comply with the POFA 2012.
  The notice to keeper fails to have the required elements from paragraphs 9(2)(e) and 9(2)(f) of the protection of freedoms act 2012, schedule 4. Therefore keeper liability does not apply, and as keeper I am therefore not liable.
  e). There was no consideration nor acceptance flowing from both parties and any contract with
  myself, or the driver, is denied.
  Highview have not addressed this point.