Rebuttal at POPLA stage with Highview Parking

A question about : Rebuttal at POPLA stage with Highview Parking

hi, I am currently at POPLA stage appealing the PCN from Highview and would need your advice please. I have appealed (as a registered keeper) -overstaying in a free retail park -when submitting the appeal online i didn't tick all three boxes (except for stolen car), I only ticked one box (charge exceeded)- does it matter for the appeal? once submitted , can i add more grounds to my appeal? I have appealed on the following grounds
1 Charge not a genuine pre-estimate of loss
2 The amount of the charge is disproportionate
3 No authority to levy charges
4 No Creditor identified on the Notice to Appellant
5. Unlawful Penalty Charge

1. Charge not a genuine pre-estimate of loss
The demand for a payment of Ј70 (discounted to Ј40 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.

2 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(xxxRetail Park is a free car park, therefore the parking charges have been paid in full and there is no loss to the owner).
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 council charges for all day parking, as the parking meter rate in the corresponding area is Ј2.50 per hour. I would question that if a charge can be discounted by Ј30 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. 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 owner/occupier, 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.

4. No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Highview Parking Ltd. Ltd., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.
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.

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 have based on other threads. Hope I have used the right appeal points. Higview sent me their evidence pack/ refutal of my appeal. Could someone please help me to compose a good rebuttal. I need to reply to them asap! Many thanks!!

Best answers:

• they have provided pre- estimate cost calculation and included : The cost of providing the space for free parking for customers for the maximum permitted allowance of 1 hour 30
  minutes is Ј0.82. Therefore by overstaying by 36 minutes, xxxxx has caused an initial loss by diminishing the value of the parking space. Isthis lawfull?
  Full calculations were as below:
  Initial Loss
  Loss incurred by the landowner in provision of that space which has been calculated by taking the total annual cost of
  the parking location, dividing it by the number of spaces, and then dividing that by the time the vehicle overstayed. Ј0.82
  ANPR Image
  Verification For ANPR cases only - we are required by the BPA to check the data to confirm it's correct Ј0.75
  DVLA
  CHARGE DVLA cost for requesting the Owner/Keeper details Ј2.50
  Document Print Documents are all printed externally by a supplier for which a cost per document is applied Ј0.60
  Postage Charge Postal cost per Notice, plus envelopes. Ј3.68
  Responding to
  Appeal Cost of Appeals Executive including Employer's NI to respond to appeal Ј11.83
  Responding to
  POPLA Appeal
  Cost of Compliance Co-ordinator including Employer's NI to administer the POPLA Appeal, collate required information and
  build, print sign off and send POPLA evidence pack. Ј62.15
  total:Ј82.33
  By including the costs of a POPLA appeal in its calculations, Highview Parking has clearly shown that it has produced a POST-estimate rather than a pre-estimate, as it is clearly not foreseeable whether a motorist would indeed appeal to POPLA or not.? Am I right? Is this a good point to appeal? The initial loss they presented does not seem right to me either, but could someone please help/advice on how I can support my point. Thanks!
• 82p
  Which orifice did they drag that out of to try and manufacture a loss? Are they maintaining the car park? Where did they get the landowner's loss figure from to derive 82p? (Apart from anything, it's the landowner's loss, not theirs).
  Did they affix a windscreen ticket or was it ANPR? (If ANPR then they're not even managing the parking never mind maintaining the car park).
• seems they are charging you for the POPLA appeal , very naughty , you do not have to pay any costs for this , so the charge should be "at least" less the popla charge
  don,t forget to report this , postage charge is a bit steep , was it hand delivered by a bloke in a helicopter , or first class royal mail at large letter rate (sub Ј1)
• They keep trying don't they? Muppets.
• Initial Loss
  Loss incurred by the landowner in provision of that space which has been calculated by taking the total annual cost of
  the parking location, dividing it by the number of spaces, and then dividing that by the time the vehicle overstayed. Ј0.82
  This is not a loss. Does it cost Highview Parking anything when someone parks in one of these parking spaces, however long they park? No. Does it cost the landowner anything? No (not that this is relevant anyway, since Highview is claiming for its own [non-existent] loss, not the landowner's). Highview might just as well claim that since there is a cost in providing the buildings on the site then anyone who enters those buildings causes a loss to the landowner's security company or whomever, it would be just as nonsensical.
  It's a free car park. There is not and cannot be an initial loss. Highview is attempting to use a parking charge to manufacture a loss where none exists.
  ANPR Image
  Verification For ANPR cases only - we are required by the BPA to check the data to confirm it's correct Ј0.75
  Ј0.75 for what, exactly? If it's the cost of someone looking at a photo, when that person's normal duties include doing exactly that, then that is simply a business cost, it's not a loss.
  DVLA
  CHARGE DVLA cost for requesting the Owner/Keeper details Ј2.50
  But they didn't need to so that anyway because, as already explained, there was no loss to pursue.
  Document Print Documents are all printed externally by a supplier for which a cost per document is applied Ј0.60
  I don't believe them. Evidence? But they didn't need to print anything anyway because, as already explained, there was no loss to pursue.
  Postage Charge Postal cost per Notice, plus envelopes. Ј3.68
  Wow, was the envelope gold-plated? But they didn't need to send anything anyway because, as already explained, there was no loss to pursue.
  Responding to
  Appeal Cost of Appeals Executive including Employer's NI to respond to appeal Ј11.83
  If the Appeals Executive's normal duties involve responding to appeals (hint: the clue's in the name) then this is merely a business cost, there is no loss.
  Furthermore the supposed liquidated damages clause Highview seeks to exercise must be a genuine PRE-estimate of loss. How can appeal costs be included in a PRE-estimate, when they do not know in advance whether any given person will appeal, and indeed the majority do not? Either Highview does not understand liquidated damages clauses and genuine PRE-estimate of loss, or they are being disingenuous.
  But in any case responding to the appeal was unnecessary because, as already explained, there was no loss to pursue. They should never have raised the charge in the first place.
  Responding to
  POPLA Appeal
  Cost of Compliance Co-ordinator including Employer's NI to administer the POPLA Appeal, collate required information and
  build, print sign off and send POPLA evidence pack. Ј62.15
  total:Ј82.33
  If the Compliance Co-ordinator's normal duties involve administering PoPLA appeals then this is merely a business cost, there is no loss.
  Furthermore the supposed liquidated damages clause Highview seeks to exercise must be a genuine PRE-estimate of loss. How can PoPLA costs be included in a PRE-estimate, when they do not know in advance whether any given person will appeal to PoPLA, and indeed the vast majority do not? Either Highview does not understand liquidated damages clauses and genuine PRE-estimate of loss, or they are being disingenuous.
  Also, in requiring PoPLA to be set up, the government demanded that it be free to the appellant. Accordingly Highview cannot claim PoPLA-related costs against the appellant.
  But in any case responding to the appeal was unnecessary because, as already explained, there was no loss to pursue. They should never have raised the charge in the first place.
• Bazster, you should work for PoPLA as an assessor
• Thank you for all your comments! much appreciated, I need to reply to them asap. If I copy & paste what they sent in the evidence pack (i'll remove my personal details), would sb help me to compose a good rebuttal to beat them please!