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POPLA Appeal - request for help
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SuperFish90
Posts: 3 Newbie
Hi all,
Firstly, thanks so much to all you lovely regulars who have posted so much useful info on this site. You are parking ticket angels!!
Anyway, onto my appeal. Quick overview - got a PCN from Euro Car Parks for failing to adhere to signage on site. The site is not attached to any business, it is not free to park, and is operated by ANPR - their 'evidence' is from two photos of my car entering and leaving, all standard stuff. I got a NtK through the post within the required time so no breach of the code there. Submitted my initial appeal to them by using guidance on here, that got rejected with their standard rejection letter so now onto POPLA. I'm not sure exactly how much detail you need other than this so please let me know if there's anything else that would help.
My draft letter to POPLA is as follows. Massive thanks to everyone writing appeals and posting them on here for others to use, mine is a conglomeration of lots of yours! Any help, alterations or additions would be hugely appreciated - thank you.
Dear POPLA Assessor,
As the registered keeper of vehicle registration XXXX XXX, I am appealing against parking charge number XXXXXXX using POPLA appeal code XXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.
1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCNs
4. Unlawful penalty charge
5. ANPR (Automatic Number Plate Recognition) accuracy
6. ANPR usage
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
8. Non-compliant Notice to Keeper
9. Business rates
1. Non genuine pre-estimate of loss
The amount of £XX demanded by Euro Car Parks is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. In its reply to my initial letter requesting a breakdown of how supposed damages of £XX have arisen, Euro Car Parks has claimed the following as proof of its alleged ‘losses’ on which the charge is based:
- Wages and salaries including Employers National Insurance Contributions
- IT systems, software, licenses and peripherals
- DVLA fees and processing costs
- Costs in preparing and sending PCNs – stationery, postage and printing
- Legal, Accounting and other Professional costs
- Human Resources
- Premises Costs
- Vehicle and Telephone costs
- Loss of Pay and Display Ticket revenue generating from paying customers (where applicable)
- Loss of purchase revenue to Retail Outlets within the car park
Euro Car Parks has provided no breakdown of how the sum of £XX has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Euro Car Parks cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.
Given that Euro Car Parks charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.
2. No contract between driver/Inadequate signage
Following the receipt of the charge, I have personally visited the site in question, and I belive the signage at this car park is inadequate for the following reasons.
The entrance sign is situated on a brick wall next to the approach road to the car park. The driver would have to turn their head fully 90 degrees in order to see the sign whilst manoeuvring around other traffic and pedestrians, as the entrance road to the car park also serves as a pavement. In addition, the wording is so small that it would not be reasonable to assume anyone entering the car park has a chance to read and accept any terms and conditions of parking stated on the signage whilst driving in a safe and responsible manner. It is therefore entirely possible, even expected, that drivers would enter the car park without seeing this sign. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.
As a POPLA Assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”. Euro Car Parks must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place. Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding rather than simply the nominal amount presumably due in a machine on site. The idea that any driver would accept these terms knowingly is perverse and beyond credibility, and so I dispute the existence of a contract between the driver and the Operator.
3. Flawed contract with landowner/Authority to issue PCNs
The BPA code of practice contains the following:
7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
Euro Car Parks does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Euro Car Parks has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper. I put Euro Car Parks to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract. I demand Euro Car Parks produce to POPLA the contemporaneous and unredacted contract between the landowner and the Euro Car Parks.
4. Unlawful penalty charge
Euro Car Parks cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils. Euro Car Parks could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.
5. ANPR (Automatic Number Plate Recognition) accuracy
Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Euro Car Parks to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times, it is vital that Euro Car Parks produces evidence in response to these points.
In addition to showing their maintenance records, I require Euro Car Parks to show evidence to rebut the following assertion. 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 the exact 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 with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Euro Car Parks to strict proof to the contrary.
6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.'
Euro Car Parks fails to operate the system in a 'reasonable, consistent and transparent manner'. As Euro Car Parks uses inadequate signage on arrival, as described in section 2 above, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system, essentially being a secret high-up spy camera, far from 'transparent', unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
Some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. I put Euro Car Parks to strict proof to provide evidence that it has the necessary planning permissions/consent from the local authorities for the current parking conditions, chargeable regimes and installation of the ANPR cameras that are used on the site in question.
8. Non-compliant Notice to Keeper
The Notice to Keeper sent by Euro Car Parks to myself 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, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made. Euro Car Parks has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.
9. Business rates
As the car park is being used for the purpose of running a business by Euro Car Parks, which is entirely separate from any other business the car park is located in the vicinity of, and generates revenue and profit for Euro Car Parks, I do not believe that Euro Car Parks has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put Euro Car Parks to strict proof that they have so registered the business they are operating at the site in question with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.
This concludes my appeal. I respectfully request that my appeal be upheld and the charge be dismissed if Euro Car Parks fails to address all points above and provide the necessary evidence as requested.
Yours Faithfully,
XXX
Thank you to anyone taking the time to go over this. Comments and thoughts would be great. I know a few people have been saying there isn't much point including the Business Rates part, but others say just throw everything at them. Thoughts..?
Firstly, thanks so much to all you lovely regulars who have posted so much useful info on this site. You are parking ticket angels!!
Anyway, onto my appeal. Quick overview - got a PCN from Euro Car Parks for failing to adhere to signage on site. The site is not attached to any business, it is not free to park, and is operated by ANPR - their 'evidence' is from two photos of my car entering and leaving, all standard stuff. I got a NtK through the post within the required time so no breach of the code there. Submitted my initial appeal to them by using guidance on here, that got rejected with their standard rejection letter so now onto POPLA. I'm not sure exactly how much detail you need other than this so please let me know if there's anything else that would help.
My draft letter to POPLA is as follows. Massive thanks to everyone writing appeals and posting them on here for others to use, mine is a conglomeration of lots of yours! Any help, alterations or additions would be hugely appreciated - thank you.
Dear POPLA Assessor,
As the registered keeper of vehicle registration XXXX XXX, I am appealing against parking charge number XXXXXXX using POPLA appeal code XXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.
1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCNs
4. Unlawful penalty charge
5. ANPR (Automatic Number Plate Recognition) accuracy
6. ANPR usage
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
8. Non-compliant Notice to Keeper
9. Business rates
1. Non genuine pre-estimate of loss
The amount of £XX demanded by Euro Car Parks is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. In its reply to my initial letter requesting a breakdown of how supposed damages of £XX have arisen, Euro Car Parks has claimed the following as proof of its alleged ‘losses’ on which the charge is based:
- Wages and salaries including Employers National Insurance Contributions
- IT systems, software, licenses and peripherals
- DVLA fees and processing costs
- Costs in preparing and sending PCNs – stationery, postage and printing
- Legal, Accounting and other Professional costs
- Human Resources
- Premises Costs
- Vehicle and Telephone costs
- Loss of Pay and Display Ticket revenue generating from paying customers (where applicable)
- Loss of purchase revenue to Retail Outlets within the car park
Euro Car Parks has provided no breakdown of how the sum of £XX has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Euro Car Parks cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.
Given that Euro Car Parks charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.
2. No contract between driver/Inadequate signage
Following the receipt of the charge, I have personally visited the site in question, and I belive the signage at this car park is inadequate for the following reasons.
The entrance sign is situated on a brick wall next to the approach road to the car park. The driver would have to turn their head fully 90 degrees in order to see the sign whilst manoeuvring around other traffic and pedestrians, as the entrance road to the car park also serves as a pavement. In addition, the wording is so small that it would not be reasonable to assume anyone entering the car park has a chance to read and accept any terms and conditions of parking stated on the signage whilst driving in a safe and responsible manner. It is therefore entirely possible, even expected, that drivers would enter the car park without seeing this sign. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.
As a POPLA Assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”. Euro Car Parks must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place. Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding rather than simply the nominal amount presumably due in a machine on site. The idea that any driver would accept these terms knowingly is perverse and beyond credibility, and so I dispute the existence of a contract between the driver and the Operator.
3. Flawed contract with landowner/Authority to issue PCNs
The BPA code of practice contains the following:
7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
Euro Car Parks does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Euro Car Parks has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper. I put Euro Car Parks to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract. I demand Euro Car Parks produce to POPLA the contemporaneous and unredacted contract between the landowner and the Euro Car Parks.
4. Unlawful penalty charge
Euro Car Parks cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils. Euro Car Parks could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.
5. ANPR (Automatic Number Plate Recognition) accuracy
Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Euro Car Parks to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times, it is vital that Euro Car Parks produces evidence in response to these points.
In addition to showing their maintenance records, I require Euro Car Parks to show evidence to rebut the following assertion. 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 the exact 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 with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Euro Car Parks to strict proof to the contrary.
6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.'
Euro Car Parks fails to operate the system in a 'reasonable, consistent and transparent manner'. As Euro Car Parks uses inadequate signage on arrival, as described in section 2 above, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system, essentially being a secret high-up spy camera, far from 'transparent', unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
Some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. I put Euro Car Parks to strict proof to provide evidence that it has the necessary planning permissions/consent from the local authorities for the current parking conditions, chargeable regimes and installation of the ANPR cameras that are used on the site in question.
8. Non-compliant Notice to Keeper
The Notice to Keeper sent by Euro Car Parks to myself 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, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made. Euro Car Parks has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.
9. Business rates
As the car park is being used for the purpose of running a business by Euro Car Parks, which is entirely separate from any other business the car park is located in the vicinity of, and generates revenue and profit for Euro Car Parks, I do not believe that Euro Car Parks has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put Euro Car Parks to strict proof that they have so registered the business they are operating at the site in question with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.
This concludes my appeal. I respectfully request that my appeal be upheld and the charge be dismissed if Euro Car Parks fails to address all points above and provide the necessary evidence as requested.
Yours Faithfully,
XXX
Thank you to anyone taking the time to go over this. Comments and thoughts would be great. I know a few people have been saying there isn't much point including the Business Rates part, but others say just throw everything at them. Thoughts..?
0
Comments
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Take out the rates bit at the end as whether or not they pay business rates is totally irrelevant to your case. It looks vindictive and is, at POPLA at least, nothing to do with you.0
-
That will do the job! Nice first post by a newbie who has obviously read the advice here.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Guys Dad - ok, will do. Thanks!
Coupon-mad - cheers, yeah I feel as if I have spent faaar too much of my time lately reading everything here and on pepipoo. Hopefully it will be worth it and the appeal will work! I already paid a byelaws-related ticket in the past due to lack of info online about them (which I have since discovered I shouldn't have paid, damn) so not making the same mistake again.
Anyone else got anything to add or should I just go for it?0 -
just take the advice above on board, and send it in (go for it)
looks good to me too0 -
Could have sworn I updated this thread, but apparently not. My appeal won, whoopee! They didn't even bother fighting, just cancelled the PCN.
Thanks again to you all for your help and advice.0 -
Euro Car Parks stuffed again! Well done and thanks for the update!SuperFish90 wrote: »Could have sworn I updated this thread, but apparently not. My appeal won, whoopee! They didn't even bother fighting, just cancelled the PCN.
Thanks again to you all for your help and advice.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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