Any thoughts on my POPLA appeal wording?

gbm000

I am about to issue my appeal to POPLA.

The case is an overstay of the one hour allowed in an ASDA car park operated by Smart Parking and monitored by ANPR cameras.

I would appreciate any comments on the following appeal wording.

Dear POPLA,

Verification Code 1234567890

I am the registered keeper and I wish to appeal a recent parking charge from Smart Parking Ltd. I submit the points below to show that I am not liable for the parking charge.

1) The parking charge is not a genuine pre-estimate of loss
2) Lack of standing/authority from the landowner
3) ANPR records are unreliable and not proof of one parking event

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1) The parking charge is not a genuine pre-estimate of loss

Their sign states the parking charge is for "not fully complying with the conditions" so Smart Parking Ltd must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not full, so any overstay would result in no loss of potential income in a free car park.

Smart Parking Ltd 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. Smart Parking Ltd 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.

Accordingly, the parking charge must be a genuine pre-estimate of loss and I put Smart Parking Ltd to strict proof that their charge represents a genuine pre-estimate of loss. Smart Parking Ltd has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business were no breach to have occurred, then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included in this pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

The British Parking Association (BPA) Code of Practice (CoP) 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."

and

"19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. "

The Department for Transport Guidance and the BPA CoP require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Smart Parking Ltd cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned "commercial justification" statement they may have devised afterwards (since this would not be a pre-estimate):

2) Lack of standing/authority from landowner

Smart Parking Ltd has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain signs and to post out "tickets" as a deterrent. Authority to merely "issue tickets" is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement "on behalf of" a principal, Smart Parking Ltd has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put Smart Parking Ltd to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that Smart Parking Ltd can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times, dates and details of enforcement are. How will I know that the landholder contract allows Smart Parking Ltd to charge £80 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that Smart Parking Ltd can put up signs and "issue parking charges" would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

3) ANPR records are unreliable and not proof of one parking event

The charge is founded entirely on two photos of my vehicle entering and leaving the car park at specific times. I put Smart Parking Ltd to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer and cameras and the possibility of two visits being recorded as one. Smart Parking Ltd's proof must show checks relating to my case and my vehicle, not vague statements about any maintenance checks carried out at other times.

The "two visits recorded as one" problem is very common and is even mentioned on the BPA website as a known issue:

britishparking dot co dot uk/How-does-ANPR-work

The BPA says: "As with all new technology, there are issues associated with its use:

Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an "overstay". Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur."

Since I am merely the registered keeper, I have no evidence to discount the above possibilities.

Smart Parking Ltd show no photographs of the car in a parked state so they cannot say for certain that the car was parked for the period between the entry and exit photographs. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been "parked" for more than one hour.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. Where the operator uses WIFI with an inherent delay through buffering, "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:

"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."

Smart Parking Ltd fail to operate the system in a "reasonable, consistent and transparent manner". Their sign is far too high to see on arrival, and the reference to use of ANPR cameras is in small font. There is no reasonable 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 being merely a secret high-up spy camera - far from "transparent" - unreasonably "farming" the data from moving vehicles at the entrance and 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.

Having regard to the points raised, I respectfully request that my appeal is upheld and the parking charge is dismissed.

Yours faithfully.....

Redx

as signage is rarely compliant with the BPA CoP , I would be adding it as a fourth complaint

the newbies thread gives links to popla examples and there have been hundreds of these asda and smart examples on here too, so compare yours to one of those and add whatever is missing or needs changing

Umkomaas

Definitely add in a signage appeal point. The Asda/Smart signage is pants!