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Highview Parking
cabbyman
post Thu, 25 Apr 2013 - 18:10
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My wife has a POPLA code received from this PPC in reponse to a letter to them detailing a) Why she failed to spend £5 in Tesco to comply with parking 'regulations,' and b) the various reasons why the charge was unenforceable, ie, penalty not a charge, contract with landowner, etc.

The appeal rejection claims the 'PCN was issued legally and correctly according to the British Parking Association Approved Operator Scheme.' 'Your representations have been carefully considered....'

Has Highview been to POPLA before?


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SchoolRunMum
post Mon, 29 Apr 2013 - 00:31
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As it's a postal PCN based on camera issue, look at page 13 of the BPA CoP about ANPR:

http://www.britishparking.co.uk/write/Docu...ice_2013_v1.pdf

Simply list those requirements of ANPR tickets, in bullet points with paragraph numbers from the CoP and state 'I have had no evidence that Highview have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.


And the BPA code of practice also says

'20.14 When you serve a Notice to Keeper, you must also
include information telling the keeper the ‘reasonable
cause’ you had for asking the DVLA for their details.'

Well I can't see that this fake PCN complies with that. As in the point already raised by outlook, the PCN says 'either/or' of 2 different contraventions as a generic catch-all. Does not comply with the BPA code point 20.14 IMHO.


Also I don't have time to read any more of the BPA CoP (but you would be advised to have a closer look I think). Quite honestly you could literally quote loads of it and say 'I have no evidence that Highview have complied with points x, y, z so require that they prove their compliance to POPLA.

And what about the signage, is that fully compliant with the CoP?

And have you compared the Notice to the relevant schedules in the POF Act (the CoP which I have linked for you, cites which Schedules apply, so check them out too). Did they post it in time?

And add in that you consider the fake PCN to be a penalty because Highview have alleged a breach of t&cs and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).

This post has been edited by SchoolRunMum: Mon, 29 Apr 2013 - 00:35
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hoohoo
post Mon, 29 Apr 2013 - 07:22
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QUOTE (SchoolRunMum @ Mon, 29 Apr 2013 - 01:31) *
And what about the signage, is that fully compliant with the CoP?


I've never seen any Highview signage that was anywhere near compliant.

The colours they use are practically the colours the BPA use as an example of colours not to use. The height of the letters on entrance signs is smaller than required. The height of smaller lettering is not the required proportion of the big lettering. The placement of signs is often bad; sometimes so bad that you have to think they deliberately worked out where the worst place to put a sign would be.

Definitely go to town on the signage. List out the non-compliant parts and require them to explain why they think their signage is sufficient when it is so different from the requirements.

Also, for later, when they send in their POPLA pack, check the signage map they send in. I've never seen them do this correctly. Complain that it is not accurate and send in photos to prove this. Ask for the map to be struck out as evidence, and therefore for the appeal to be upheld as they have not provided proof that the signage was adequate. You can do this because you are allowed time to comment on their evidence and you can email this in to POPLA before the adjudication date as long as you have your POPLA reference code in the email subject line.
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cabbyman
post Tue, 7 May 2013 - 17:23
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I've added some more to our POPLA appeal taking into account SRM's comments above. We haven't yet had a chance to check the signage although I'm not sure we will be able to within the time available. The rejection and POPLA code was dated 19th April and received by us 25th April. What does that make our deadline for the POPLA appeal?


Please find my appeal below
Highview Parking.
PCN no xxxxx
Popla ref xxxx
Reg xxxxx
Tesco xxxx

On the [date], Highview issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system as having stayed in the Tesco xxxx Car Park for 1 hour 29 minutes.


My Appeal.

1. The amount of the charge is disproportionate to the loss incurred by Highview Parking Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because Highview Parking Ltd have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).


2. - I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Highview Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Highview Parking Ltd's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require Highview Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that Highview Parking Ltd are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


-I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Highview Parking Ltd to prove otherwise so I require that Highview Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

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.



The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.


The BPA code of practice 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. 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 have had no evidence that Highview have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

And the BPA code of practice also says

'20.14 When you serve a Notice to Keeper, you must also
include information telling the keeper the ‘reasonable
cause’ you had for asking the DVLA for their details.'

The PCN says 'either/or' of 2 different contraventions as a generic catch-all. This does not comply with the BPA code point 20.14.



Feel free to suggest layout amendments and a finishing paragraph! :-)

Thanks to all for the kind assistance.


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cabbyman
post Wed, 8 May 2013 - 13:11
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Should we include the argument inside the store to POPLA or is it fairly irrelevant?


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nigelbb
post Wed, 8 May 2013 - 15:15
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QUOTE (cabbyman @ Wed, 8 May 2013 - 14:11) *
Should we include the argument inside the store to POPLA or is it fairly irrelevant?

It's irrelevant for POPLA as they don't do mitigation.

Was this Tesco's car park? If so you really should be in there complaining like hell that because of the donut screw-up & subsequent argument that you have been lumbered with a "fine"


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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cabbyman
post Thu, 9 May 2013 - 16:38
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It was Tesco. I'll get her to do something to them.

STOP PRESS: Today, 9/5/13, she received a 'charge notice reminder' from Highview dated 7/5/13!!!! Slam dunk at POPLA, me thinks???

This was identical to the previous charge notice except for a) the title, b) A para 'A notice was sent to you on xx/xx/xx which gave you 14 days to pay the reduced charge or challenge its issue. The full amount of £70 is now due. [And after in red] If payment is not received within 14 days, an additional administration charge will be incurred.'

How and where should we amend the POPLA draft, above, in light of this?

Many thanks for all the help on this.


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nigelbb
post Thu, 9 May 2013 - 17:45
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QUOTE (cabbyman @ Tue, 7 May 2013 - 18:23) *
I've added some more to our POPLA appeal taking into account SRM's comments above. We haven't yet had a chance to check the signage although I'm not sure we will be able to within the time available. The rejection and POPLA code was dated 19th April and received by us 25th April. What does that make our deadline for the POPLA appeal?

To my mind & that of any reasonable person the 28 days would start from the day that you receive the code but it's a bit of a grey area as POPLA may be interpreting it as when the PPC is issued with the code. Unfair I know & any refusal of POPLA to hear the case in these circumstances would be a very black mark indeed at a subsequent court case but the idea of using POPLA is to avoid a court case & all the preliminary threatening letters otherwise you may as well have just ignore all correspondence in the first place. To be on the safe side it's better to get the POPLA appeal in sooner rather than later. In the worst case if the countdown started on 19th April then May 17th is the end whereas if the countdown started on April 25th then it's May 23rd.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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nigelbb
post Thu, 9 May 2013 - 17:55
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QUOTE (cabbyman @ Thu, 9 May 2013 - 17:38) *
It was Tesco. I'll get her to do something to them.

STOP PRESS: Today, 9/5/13, she received a 'charge notice reminder' from Highview dated 7/5/13!!!! Slam dunk at POPLA, me thinks???

This was identical to the previous charge notice except for a) the title, b) A para 'A notice was sent to you on xx/xx/xx which gave you 14 days to pay the reduced charge or challenge its issue. The full amount of £70 is now due. [And after in red] If payment is not received within 14 days, an additional administration charge will be incurred.'

How and where should we amend the POPLA draft, above, in light of this?

Many thanks for all the help on this.

The BPA CoP states

QUOTE
22.6 When you receive a challenge about the issue of a
parking charge, you must stop work on processing the
charge immediately. You must not increase the charge
until you have replied to the challenge.


However there is nothing that says what happens after they have sent a POPLA code. The CoP does state

QUOTE
22.16 You must keep to the processes and other requirements of
POPLA, as set out in their Code of Practice and elsewhere.


I would hope that the POPLA CoP states that all charges should be put on hold until the outcome of their deliberations but I cannot find a copy of the POPLA CoP on their website.

It is still a big stick to beat them with in a POPLA appeal that they are ignoring POPLA & anticipating the outcome by continuing to harass you


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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cabbyman
post Thu, 9 May 2013 - 18:01
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There's a link to the BPA CoP in SRM's post #21 above. I thought I saw in there somewhere that they had to cease collection activity. I can't find it now!!! :-(


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TRX75
post Thu, 9 May 2013 - 18:07
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I'm not sure about any amendments that may be required due to Highview's reminder, but it may be better to remove any references to VCS v HMRC 2012 in the light of the Court of Appeal's decision in VCS v HMRC 2013 - see here. Of particular relevance are Lord Justice Lewison's statements as follows:
QUOTE
The breach of contract issue
21. The Upper Tribunal's reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.

....and later:
QUOTE
23. Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract [with motorists]


I'm aware that recent POPLA decisions have cited that case but it's probably only a matter of time before Shona updates herself with the latest developments. PPC's rights under their contracts with landowners were challengeable long before VCS v HMRC happened. They are still challengeable and I don't believe there's a need to cite any relevant case law when putting Highview to proof of any rights they claim to have.
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nigelbb
post Thu, 9 May 2013 - 18:13
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QUOTE (cabbyman @ Thu, 9 May 2013 - 19:01) *
There's a link to the BPA CoP in SRM's post #21 above. I thought I saw in there somewhere that they had to cease collection activity. I can't find it now!!! :-(


QUOTE
22.12 If you reject a challenge you must:
• tell the driver how to make an appeal to POPLA. This
includes providing a template ‘notice of appeal’ form, or
a link to the appropriate website for lodging an appeal
• give the driver a reasonable amount of time to pay
the charge before restarting the collection process.
We recommend that you allow at least 35 days from
the date you rejected the challenge.


It's a recommendation to allow 35 days not a 'must' but it's still contrary to the spirit of an appeal process.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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hoohoo
post Thu, 9 May 2013 - 18:50
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QUOTE (cabbyman @ Tue, 7 May 2013 - 18:23) *
What does that make our deadline for the POPLA appeal?


There is nothing to stop you making the POPLA appeal right now, this evening. This starts the clock ticking. You will get a confirmation email straight away. Tomorrow, POPLA will tell you your earliest adjudication date, which will be another 35 days time.

You then have those 35 days to email in your full appeal.

I have done this with all my appeals so far, entering the reason for the appeal as:

QUOTE
Details to follow


I haven't had any problems doing this. If you are at all unsure as to the actual 28 day deadline, I recommend starting the appeal now, and then following up in the fullness of time.

In actual fact, POPLA are running about 20ish days behind schedule anyway, so you have more like 48 days grace; but they can process the appeal at any time after the 35 days, so it is best to get the appeal in before then.
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KillerSteve
post Thu, 9 May 2013 - 19:14
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QUOTE (TRX75 @ Thu, 9 May 2013 - 19:07) *
Of particular relevance are Lord Justice Lewison's statements as follows:
QUOTE
The breach of contract issue
21. The Upper Tribunal's reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.

....and later:
QUOTE
23. Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract [with motorists]




And this is where I think the court of appeal went wrong.
They are saying that despite a ppc not having a right under the contract between the ppc and landowner to contract with a driver, that the ppc can still contract with the driver?

So what happens if a landowner who generally uses a ppc for parking, verbally offers parking to a person/driver for instance for a week for £20, then does the landowners contract take preference over the ppcs contract with the driver?
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bama
post Fri, 10 May 2013 - 07:24
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QUOTE
They are still challengeable and I don't believe there's a need to cite any relevant case law when putting Highview to proof of any rights they claim to have.

yes indeedy !
it has to be down to the paperwork (the facts) in each case.


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Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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cabbyman
post Fri, 10 May 2013 - 23:22
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OK, we'll lodge an appeal 'details to follow' over the weekend.

To the draft above, we have added:

" On 9th May 2013, I received a 'Charge Notice Reminder' dated 7/5/13, 'the full amount of £70....' 'If payment is not received within 14 days, an additional administration charge will be incurred.'

22.12 If you reject a challenge you must:
• tell the driver how to make an appeal to POPLA. This
includes providing a template ‘notice of appeal’ form, or
a link to the appropriate website for lodging an appeal
• give the driver a reasonable amount of time to pay
the charge before restarting the collection process.
We recommend that you allow at least 35 days from
the date you rejected the challenge."

Is this good to go?


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cabbyman
post Sun, 12 May 2013 - 17:38
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Appeal submitted to POPLA today 'details to follow.'

I presume time starts ticking now. What is the appeal above looking like? Do we need to make any changes? Please help! Thank you.


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SchoolRunMum
post Sun, 12 May 2013 - 23:34
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TBH I think you seem to have a very good POPLA appeal there, especially with the latest bit added (post #35).
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cabbyman
post Mon, 13 May 2013 - 12:35
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We have now submitted the appeal online. In order to keep the thread complete, this is the appeal we sent:


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cabbyman
post Sun, 19 May 2013 - 11:54
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The acknowledgement from POPLA quotes the parties as '[RK] v Ranger on behalf of Highview.'

Ranger have not appeared anywhere on any paperwork prior to this. Is this significant? If so, can it be used?


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nigelbb
post Sun, 19 May 2013 - 12:19
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QUOTE (cabbyman @ Sun, 19 May 2013 - 12:54) *
The acknowledgement from POPLA quotes the parties as '[RK] v Ranger on behalf of Highview.'

Ranger have not appeared anywhere on any paperwork prior to this. Is this significant? If so, can it be used?

According to the Highview website "Through its relationship with Ranger Services, Highview Parking benefits from a wealth of experience and expertise in developing technology solutions using ANPR, in order to create unbeatable car park management services." However they appear to be two entirely different companies albeit sharing the same registered address.

Company Registered Address:
Ranger Services Ltd – Registered Office: 35 Ballards Lane, London N3 1XW, Registered in England 4797172

Company Registered Address:
Highview Parking Ltd - Registered Office: 35 Ballards Lane, London N3 1XW. Registered in England 05541862

It may be worth holding off complaining to see what hole they dig for themselves as Ranger when the purported contract has only ever been with Highview.

BTW You didn't raise the question of inadequate signage at the site. There is sure to be grounds for complaint here. CTake some photographs demonstrating that the signage doesn't comply with what is prescribed in the BPA CoP http://www.britishparking.co.uk/write/Docu...2_March2013.pdf You can submit extra evidence to POPLA as long as you make sure that you use the same verification code. In the next few weeks you should receive a package that is Highview's (or Ranger's) response to your challenge.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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